BZAAH & Anor v Minister for Immigration and Citizenship

[2014] HCASL 38

BZAAH & ANOR

v

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

[2014] HCASL 38
B43/2013

1. The applicants (a mother and child) are citizens of Romania.  On 5 May 2009, they applied for a Protection (Class XA) visa based on the mother's claim to be a refugee.  The application was refused by a delegate of the first respondent on 3 August 2009.

2. On 13 July 2010, the Refugee Review Tribunal ("the Tribunal") affirmed the delegate's decision. The Tribunal found that Australia was taken not to have protection obligations to the applicants because they had not taken all possible steps to avail themselves of a right to enter and reside in another "country", namely Spain, pursuant to s 36(3) of the Migration Act 1958 (Cth) ("Migration Act").

3. On 20 December 2012, the Federal Magistrates Court of Australia (Burnett FM) dismissed an application for judicial review of the Tribunal's decision. Burnett FM rejected all three grounds of review, including that the Tribunal had fallen into jurisdictional error by identifying Spain, rather than the European Union, as the relevant "country" for the purpose of ss 36(3) and (4) of the Migration Act.

4. On 12 July 2013, a Full Court of the Federal Court of Australia (Greenwood, Logan and Nicholas JJ) dismissed the applicants' appeal from Burnett FM's decision. Their Honours agreed that the European Union was not a "country" for the purpose of s 36 of the Migration Act.  Their Honours held that the Tribunal did not err by identifying Spain as a relevant country.

5. The application for special leave to appeal to this Court challenges the construction of the word "country" in ss 36(3) and (4) of the Migration Act.  The decision below is not attended by sufficient doubt to warrant a grant of special leave.  Special leave is refused.

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

S.M. Kiefel
6 March 2014 P.A. Keane