Minister for Immigration v SZRTC - [2013] FCCA 1

FEDERAL CIRCUIT COURT OF AUSTRALIA

MINISTER FOR IMMIGRATION v SZRTC & ORS

[2013] FCCA 1

Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – eligibility for protection visa – whether the visa applicants had a right to enter and reside in a safe third country for the purpose of s.36(3) of the Migration Act 1958 (Cth) considered – Tribunal finding that a right to enter and stay for up to six months was not a right to “reside” – there is no arbitrary temporal limitation on a right of residence – whether a right of residence will be sufficient for the purpose of s.36(3) of the Migration Act ordinarily requires consideration of the application of s.36(4), (5) and (5A) of that Act.

Legislation: Migration Act 1958 (Cth), ss.36, 198A

Cases cited: M70/2011 v Minister for Immigration [2011] HCA 32
SZMWQ v Minister for Immigration (2010) 187 FCR 109, [2010] FCAFC 97
W228 v Minister for Immigration [2001] FCA 860
WAGH vMinister for Immigration (2003) 131 FCR 269

Applicant:

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent:

SZRTC

Second Respondent:

SZRTD

Third Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1860 of 2012

Judgment of:

Judge Driver

Hearing date:

27 February 2013

Delivered at:

Sydney

Delivered on:

12 April 2013

REPRESENTATION

Counsel for the Applicant:

Mr G Kennett SC

Solicitors for the Applicant:

DLA Piper

Counsel for the First and Second Respondents:

Mr J F Gormly

ORDERS

A writ of certiorari shall issue removing the record of the Refugee Review Tribunal decision made on 23 July 2012 into the Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 1860 of 2012

MINISTER FOR IMMIGRATION & CITIZENSHIP

Applicant

And

SZRTC

First Respondent

SZRTD

Second Respondent

REFUGEE REVIEW TRIBUNAL

Third Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant Minister seeks judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 23 July 2012. The Tribunal remitted the matter before it for reconsideration by the Minister’s Department with a direction that the applicants satisfy the criterion for a protection visa in s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act). The issue to resolve is whether the Tribunal erred in concluding that s.36(3) of the Migration Act did not apply to the visa applicants. This depends upon the meaning of the words “reside” and “temporarily” in that section. I have found that the Tribunal erred in finding that a right to enter and stay for up to six months was not a right to enter and reside for the purposes of s.36(3).
The following statement of background facts is derived from the submissions of the parties.
The first and second respondents (respondents), a married couple, are citizens of Burundi who arrived in Australia on 24 April 2011. They claimed to fear persecution in Burundi because of their membership of an opposition political…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 1
Decision Date: 12 April 2013

CaseChat Overview and Summary

The Federal Court of Australia, in a decision by Judge Driver, considered an appeal by the Minister for Immigration against a decision of the Refugee Review Tribunal concerning the eligibility of visa applicants for a protection visa. The core of the dispute revolved around whether the applicants possessed a right to enter and reside in a safe third country, as contemplated by section 36(3) of the *Migration Act 1958* (Cth). The Tribunal had previously found that a right to enter and remain for a period of up to six months did not constitute a right to "reside" for the purposes of the Act.

The primary legal issue before the Court was whether the Tribunal had erred in its interpretation of the term "reside" within section 36(3) of the *Migration Act*. Specifically, the Court was required to determine if a limited right of entry and stay in a third country, such as the six-month period identified by the Tribunal, could satisfy the requirement of a right to "reside" for the purposes of establishing eligibility for a protection visa.

Judge Driver reasoned that there is no inherent or arbitrary temporal limitation on what constitutes a right of residence. The Court held that whether a right of residence is sufficient for the purposes of section 36(3) ordinarily necessitates a consideration of the further provisions of the *Migration Act*, namely sections 36(4), (5), and (5A). These sections provide for the assessment of whether a third country is "safe" and whether the applicant would be afforded protection there, indicating that the nature and duration of the right to reside are not the sole determinative factors.

Orders