Minister for Immigration and Citizenship v SZCWF

In the case of Minister for Immigration and Citizenship v SZCWF, the first respondent appealed against a decision of the Refugee Review Tribunal that his claim for a protection visa was not valid. The first respondent had applied for a protection visa on the basis that he feared persecution as a member of a particular social group. The Tribunal found that the first respondent’s family was a particular social group, but his fear of persecution was not motivated by a Convention reason. The Tribunal concluded that s 91S of the Migration Act 1958 (Cth) applied and required it to disregard the events that gave rise to the first respondent’s fear of persecution. The first respondent applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision. The Federal Magistrate found that in applying s 91S the Tribunal had erred in two respects. First, the Federal Magistrate found that the Tribunal had not correctly asked itself the threshold questions required by s 91S, namely whether the first respondent’s father was a person who experienced persecution or fear of persecution for a non-Convention reason and whether the first respondent’s own fear would not exist if his father had not experienced persecution or fear of persecution. The Federal Magistrate concluded that in the absence of evidence that the first respondent’s father was ever persecuted or ever had a fear of persecution, the Tribunal could not conclude that the test in s 91S(a) had been satisfied and if that test was not satisfied then the section did not apply to the applicant.

The court was required to determine whether the Federal Magistrate’s findings were correct and whether the Tribunal’s decision should be upheld or set aside. The court found that the Federal Magistrate had correctly identified the errors made by the Tribunal in applying s 91S. The court found that the Tribunal had not correctly asked itself the threshold questions required by s 91S and that there was no evidence that the first respondent’s father was ever persecuted or ever had a fear of persecution. The court found that in the absence of such evidence, the Tribunal could not conclude that the test in s 91S(a) had been satisfied and if that test was not satisfied then the section did not apply to the applicant. The court held that the Federal Magistrate’s orders should be set aside and that the Tribunal’s decision should be upheld.

The court allowed the appeal, set aside the orders of the Federal Magistrate, dismissed the application for review of the decision of the Refugee Review Tribunal, and ordered the first respondent to pay the appellant’s costs of the appeal.