AWU15 v Minister for Immigration and Border Protection [2019] FCA 2008

FEDERAL COURT OF AUSTRALIA

AWU15 v Minister for Immigration and Border Protection [2019] FCA 2008 Appeal from: AWU15 v Minister for Immigration & Anor [2019] FCCA 496

File number: WAD 160 of 2019

Judge: KERR J

Date of judgment: 2 December 2019

Catchwords: MIGRATION – appeal from decision of Federal Circuit Court of Australia – failure to mention threatening letters in written statement to Delegate – Refugee Review Tribunal found letters not to be genuine – consideration of SAAK v Minister for Immigration and Multicultural Affairs [2002] FCA 367; 121 FCR 185 – omissions in written statement held to be distinct from omissions in "first interview" – no jurisdictional error MIGRATION – appeal from decision of Federal Circuit Court of Australia – Appellant deserted from the Navy – Appellant subject to arrest and imprisonment for non-bailable offence if returned to Pakistan – Refugee Review Tribunal found Australia's complementary protection obligations not engaged – Appellant claiming to face long period of pre-trial imprisonment – risk of torture – consideration of SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 – potential for inference of requisite intent on the part of the state to be drawn – complementary protection obligations potentially engaged – jurisdictional error established – appeal allowed MIGRATION – appeal from decision of Federal Circuit Court of Australia – alleged failure to adequately consider Appellant's likely court sentence if returned to Pakistan – meaning of "active service" – no jurisdictional error MIGRATION – appeal from decision of Federal Circuit Court of Australia – alleged failure to consider material relevant to risk posed to Appellant should he be returned to Pakistan– submission found to invite impermissible merits review – no jurisdictional error