AAR15 v Minister for Immigration and Border Protection

The High Court has made orders by consent between the parties, allowing an appeal against a decision of the Federal Court on fact findings on the current status of ethnic conflicts. The applicant, from the Democratic Republic of Congo, sought refugee protection on the basis of his membership of the Kasai-Luba ethnic group, which he alleged was subject to persecution by the Katangan-Lunda group. The Administrative Appeals Tribunal concluded that on the country information before it the applicant did not face a real chance of serious harm due to his ethnicity, but cited only a 2006 International Crisis Group report which referred only to ‘tensions’, and did not cite or refer to a number of later reports from various bodies which illustrated risks of genocide, war crimes and ongoing ethnic conflict. A single-judge Federal Court rejected the applicant’s argument that the AAT unreasonably relied on the report, holding that the Tribunal was entitled to assess the evidence in the country information and conclude that the history to 2006 was a better guide than the later reports. Before the High Court, the appellant sought to contend that the Tribunal acted unreasonably in failing to explain its reasons for preferring the 2006 report over the later material, that a simple statement that it ‘had regard to the information before [it]’ was insufficient, and that while it held discretion over its fact finding, it needed to provide a clear justification for its preference. The respondents did not file written submissions.

Following the agreement of the parties, the Court made orders that the appeal be allowed, set aside the relevant orders of the lower courts and issued a writ of certiorari quashing the AAT’s decision and a writ of mandamus directing the AAT to hear and determined according to law the appellant’s application for review of the Minister’s delegate’s decision.

High Court Judgment None
Result Appeal allowed by consent
High Court Documents AAR15
Orders by Consent [2016] HCATrans 267 11 November 2016
Special Leave Hearing [2016] HCATrans 196 2 September 2016
Appeal from FCA [2016] FCA 150 19 February 2016
Trial Judgment, FCCA
[2015] FCCA 2570 14 September 2015
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About Martin Clark

Martin Clark is an PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor in legal theory, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

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