Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
BCX16 v Minister for Immigration and Border Protection [2019] FCA 465 Appeal from: BCX16 v Minister for Immigration & Anor [2018] FCCA 364
File number: VID 259 of 2018
Judge: CHARLESWORTH J
Date of judgment: 5 April 2019
Catchwords: MIGRATION – protection visa – claim for complementary protection – appellant a non-citizen of Afghanistan ordinarily residing in Kabul – appellant claiming to face a real risk of significant harm as a non-targeted victim of escalated sectarian violence in Kabul – Tribunal concluding the risk faced by the appellant was not a real risk by reason of s 36(2B)(c) of the Migration Act 1958 (Cth) – whether Tribunal misconstrued or misapplied s 36(2B)(c) to the appellant's case – whether circumstance of person's residency in one area of a country is a circumstance that may cause a person to personally face a risk of significant harm – approach to interpretation of Tribunal's reasons – whether Tribunal committed jurisdictional error by failing to consider whether the risk faced by the appellant as a resident of Kabul was the same risk faced by the general population of Afghanistan – whether Tribunal committed jurisdictional error in concluding that the appellant did not face a risk personally – appeal allowed
Legislation: Migration Act 1958 (Cth) ss 36, 36(2A), 36(2B), 65
Cases cited: AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47 BBK15 v Minister for Immigration and Border Protection (2016) 241 FCR 150 BCX16 v Minister for Immigration & Anor [2018] FCCA 364 BXY15 v Minister for Immigration & Anor [2018] FCCA 2896 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZSFF v Minister for Immigration & Anor [2013] FCCA 1884 SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 SZSRY v Minister for Immigration & Anor [2013] FCCA 1284
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