SZRSN v MIAC

Case [2013] FMCA 78


FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRSN v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 78
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in New Zealand – applicant’s fears found not to be well-founded or Convention related – applicant wishing to remain in Australia with his children – whether the Tribunal erred in its consideration of the complementary protection criterion in view of the cancellation of the applicant’s Australian residence visa and the impact of separation from his Australian children considered.

Migration Act 1958 (Cth), ss.5, 32, 36, 65, 91D, 91R, 417, 422B, 424A, 425, 501

Migration Amendment (Complementary Protection) Bill 2011
Migration Amendment (Complementary Protection) Act  2011 (Cth)
Migration Regulations 1994 (Cth)

Kindler v Canada, Communication No 470/1991, UN Doc CCPR/C/48/D/470/1991 (11 Nov 1993)
MSS v Belgium and Greece, European Court of Human Rights, Application No 30696/09
Re v Minister for Immigration; ex parte Yusuf (2001) 206 CLR 323
Soering v United Kingdom (1989) 11 EHRR 439, [91], [111] (7 July 1989)
SZBEL v Minister for Immigration (2006) 228 CLR 152
SZEHN v Minister for Immigration [2005] FCA 1389
Vuolanne v Finland, Communication No.265/1987 (7 April 1987), [9.2] (Human Rights Committee)
Applicant: SZRSN
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1794 of 2012
Judgment of: Driver FM
Hearing dates: 25 October 2012, 13 February 2013
Date of Last Submission: 13 February 2013
Delivered at: Sydney
Delivered on: 1 March 2013

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms H Younan
Solicitors for the Respondents: DLA Piper

ORDERS

  1. The application filed on 20 August 2012 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1794 of 2012

SZRSN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

  1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal) made on 30 June 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from New Zealand and had claimed protection because of a fear of violence in New Zealand.  He also made clear that he wanted to remain in Australia with his children and that he does not have family or friends in New Zealand, apart from his estranged father. This case raises issues in particular about complementary protection in circumstances of forced separation of a parent from his children. 

  2. The following statement of background facts is derived from the initial submissions of the Minister filed on 18 October 2012 and supplementary submissions filed on 7 February 2013.

  3. The applicant is a male citizen of New Zealand born on 18 January 1984.[1]

    [1] Court Book (CB) 13–14

  4. The applicant arrived in Australia on 13 July 1995, when he was 11 years of age, with his mother and brother.[2] On the same day, the applicant was granted a subclass TY 444…

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SZRSN v MIAC [2013] FMCA 78
Case
[2013] FMCA 78
Decision Date

CaseChat Overview and Summary

The case before the Federal Magistrates Court was an application to review a decision of the Refugee Review Tribunal, affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant, a New Zealand citizen, had arrived in Australia as a child and had since become a father to five children, three of whom are his biological offspring. His Australian residence visa was cancelled on character grounds, and he applied for a protection visa, fearing persecution in New Zealand due to violence and lack of support. The Tribunal found that the applicant's claims were not well-founded and did not meet the criteria for protection or complementary protection under the Migration Act 1958 (Cth). The applicant argued that the Tribunal failed to properly consider the impact of his separation from his Australian children as a form of significant harm under the complementary protection criterion.

The court examined whether the Tribunal constructively failed to exercise its jurisdiction by not adequately considering the applicant's separation from his children. It found that the Tribunal's consideration of complementary protection was brief but noted that the issue of forced separation from children is complex. The court concluded that forced separation does not constitute 'significant harm' or 'degrading treatment' under the Migration Act because it is a consequence of removal, not an act intended to cause extreme humiliation. The court upheld the Tribunal's decision, finding no jurisdictional error and dismissing the application. The court ordered that the parties address the issue of costs.

Orders

Orders of the court

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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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