SZTZH v Minister for Immigration and Border Protection

In the case of SZTZH v Minister for Immigration and Border Protection, the appellant sought judicial review of a decision by the Migration Review Tribunal to affirm the delegate's decision to refuse him a Protection (Class XA) visa. The appellant argued that the Tribunal had constructively failed to exercise its jurisdiction by not properly engaging with his claim that he was owed protection obligations on the basis of being a member of a particular social group. The Federal Circuit Court dismissed the appeal, but the appellant appealed to the Federal Court. The central issue was whether the Federal Circuit Court had erred in failing to discern that the Tribunal had constructively failed to exercise its jurisdiction. The Tribunal's reasons indicated that it had considered the claim not pressed and did not deal with it on its merits, despite it being conceded that the Tribunal had a duty to consider the claim.

The Federal Court held that the Tribunal had indeed constructively failed to exercise its jurisdiction by not engaging with the appellant's claim in a real or active way. The Tribunal's reasons demonstrated that it had not properly considered the merits of the claim, leading to a failure to exercise its jurisdiction under section 414 of the Migration Act 1958 (Cth). Consequently, the Court found that the Federal Circuit Court had erred in not identifying this jurisdictional error. The appeal was allowed, and the decision of the Tribunal was quashed. A writ of mandamus was issued, directing the Tribunal to hear and determine the appellant's application for review of the delegate's decision according to law. Additionally, the Minister for Immigration and Border Protection was ordered to pay the appellant's costs of the appeal and the judicial review application before the Federal Circuit Court.