SZSLM v Minister for Immigration and Border Protection

The appellant, SZSLM, sought judicial review of a decision of the Tribunal that refused his application for a protection visa. The Federal Circuit Court dismissed his application, and he now appeals to the High Court. The appellant contends that the Circuit Court was in error in failing to find that the Tribunal considered the risk of harm by reference to a class of persons of which the appellant is not a member. The Tribunal had before it the appellant’s claim to fear harm in Nigeria by reason of his homosexuality or bisexuality, and his conviction in Australia for drug importation offences which exposed him to liability in Nigeria under Decree 33.

The court was required to determine whether the Tribunal misapplied the test stated in s 36(2)(aa) of the Migration Act 1958 (Cth) by considering the risk of harm by reference to the wrong class of persons. The court also had to decide whether there was an error in the construction of s 416 of the Act, which grants the Tribunal discretion to take a previous decision to be correct. The Circuit Court had rejected the appellant’s submission that the Tribunal erred in law in its construction and application of s 416.

The court found that the appellant’s construction of s 416 was not supported by the language of the section, which is entirely permissive. The court also held that the Tribunal did not err in applying the test of the risk of significant harm, as the country information referred to a class of persons of which the appellant is a member. The court found that the Tribunal was satisfied that there was no real chance that the appellant would be detained, prosecuted, further punished or otherwise persecuted because he had been convicted of a drug offence in Australia if he returned to Nigeria now or in the reasonably foreseeable future.

The appeal was dismissed, and the appellant was ordered to pay the costs of the first respondent.