SZQPS v Minister for Immigration - [2012] FMCA 108

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQPS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 108

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – Tribunal accepting that the applicant is a refugee but finding that Australia owes no protection obligations to him as, at the time of the Tribunal’s decision, the applicant had a right to reside temporarily in South Korea – no jurisdictional error.

PRACTICE AND PROCEDURE – Observation of the practical risks of creating a class of refugees who are denied protection in Australia but who cannot go to a safe third country.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.36

SZMWQ v Minister for Immigration [2010] FCAFC 97
WAGH v Minister for Immigration (2003) 131 FCR 269

Applicant:

SZQPS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2008 of 2011

Judgment of:

Driver FM

Hearing date:

17 February 2012

Delivered at:

Sydney

Delivered on:

17 February 2012

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr D Godwin

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,240 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2008 of 2011

SZQPS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 15 August 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is an ethnic Korean and national of China who claimed persecution in China because of his religion. The following statement of background facts is derived from the Minister’s outline of written submissions.
The applicant is a citizen of China. From 2002 he went back and forth between South Korea and China for work. On 25 April 2005 he married. The applicant’s wife was then a citizen of China. On 12 September 2006 the applicant’s child was born. In August 2007 the applicant’s wife and child were granted South Korean citizenship. In October 2007 the applicant was officially employed by a company based in South Korea and the applicant’s wife and child followed in December 2007. The applicant remained in South Korea until 29 August 2009 when he returned to China to visit his parents. He came back to Korea for two weeks in September 2009. On 7 October 2009 he returned to his parents in China. On 30 January 2010 he again returned to Korea. He travelled to Australia on 22 may 2010 on a student visa. At the time of departure he…

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: [2012] FMCA 108
Decision Date: 17 February 2012

CaseChat Overview and Summary

The case of SZQPS v Minister for Immigration involved a review of a decision made by the Refugee Review Tribunal, which had refused a protection visa to the applicant, a Chinese national. The applicant argued that he faced religious persecution in China, but the Tribunal found that Australia had no obligation to provide protection as he had a temporary right to reside in South Korea at the time of the decision. The applicant sought judicial review of the Tribunal's decision in the Federal Court. The primary legal issue before the court was whether the Tribunal had made a jurisdictional error by concluding that Australia had no protection obligations towards the applicant due to his temporary residence status in South Korea.

The court examined the principles surrounding the obligations of states towards refugees and the practical implications of the Tribunal's decision. It found that the Tribunal correctly applied the relevant legal tests and did not commit any jurisdictional error. The court considered the international legal framework, including the Refugee Convention and the principle of non-refoulement, which obliges states not to return refugees to countries where they face serious harm. However, the court held that the Tribunal's conclusion that Australia had no protection obligations to the applicant, given his temporary residence in South Korea, was legally sound and did not result in a denial of justice.

Consequently, the court dismissed the application for judicial review. The court also noted the potential practical risks of creating a class of refugees who are denied protection in Australia but are unable to seek safety in a third country. However, the court found no basis to interfere with the Tribunal's decision. The final orders of the court were that the application for judicial review be dismissed, and that the applicant pay the Minister for Immigration's costs and disbursements in the sum of $6,240.

Orders

Orders of the court

The application is dismissed.

The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,240 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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