SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40

FEDERAL COURT OF AUSTRALIA

SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40 Citation: SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40

Appeal from: SZOQQ v Minister for Immigration and Citizenship [2011] FCA 1237

Parties: SZOQQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL

File number: NSD 2084 of 2011

Judges: FLICK, JAGOT AND BARKER JJ

Date of judgment: 23 March 2012

Catchwords: MIGRATION – where appellant refused a protection visa under s 36 Migration Act 1958 (Cth) – whether Australia owed protection obligations to the appellant – Art 33 of the Refugees Convention – where Administrative Appeals Tribunal found appellant was a "danger to the community of [Australia]" within Art 33(2) such that no protection obligations arise – whether assessment of "danger to the community" required balancing exercise – appeal dismissed

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) Migration Act 1958 (Cth) Convention relating to the Status of Refugees. Opened for signature 28 July 1951. 189 UNTS 150. Protocol relating to the Status of Refugees. Entered into force 4 October 1967. 606 UNTS 267. Vienna Convention on the Law of Treaties. Entered into force 27 January 1980. 1155 UNTS 331.

Cases cited: A v Minister for Immigration & Multicultural Affairs [1999] FCA 227, cited Abebe v Commonwealth of Australia [1999] HCA 14, 197 CLR 510, cited Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; 190 CLR 225, considered BHYK and Minister for Immigration and Citizenship, Re [2010] AATA 662, cited De L v Director-General, New South Wales Department of Community Services (1996) 187 CLR 640, considered Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556, considered Gerhardy v Brown (1985) 159 CLR 70, considered Koowarta v Bjelke-Petersen (1982) 153 CLR 168, considered Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7; 209 CLR 533, considered NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326, 126 FCR 453, considered Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173, cited Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2, cited R v Secretary of State for the Home Department; Ex parte Chahal [1995] 1 WLR 526, not followed SZOQQ v Minister for Immigration and Citizenship [2011] FCA 1237, 124 ALD 18, affirmed WKCG v Minister for Immigration and Citizenship [2009] AATA 512, applied Zaoui v Attorney-General (No 2) [2006] 1 NZLR 289, followed Hathaway, James, The Rights of Refugees under International Law (2005, Cambridge University Press) Lauterpacht, Sir Elihu and Bethlehem, Daniel, 'The Scope and Content of the Principle of Non-Refoulement: Opinion' in Erika Feller, Volka Turk and Frances Nicholas (eds.), Refugee Protection in International Law (2003, Cambridge University Press)