SZEOE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 694

FEDERAL COURT OF AUSTRALIA

SZEOE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 694 MIGRATION – appeal from judgment of Federal Magistrate – protection visa application – membership of a particular social group – claim based on appellant's homosexuality – whether fear of persecution well-founded – whether Refugee Review Tribunal divided social group into those who live discreetly and those who do not – whether Refugee Review Tribunal focused on appellant's individual claim as opposed to the fate of the particular social group – discretion to dismiss application for judicial review on account of delay – seven year delay in seeking judicial review of decision of the Refugee Review Tribunal – high threshold for appellate interference in Federal Magistrate's exercise of discretion. Federal Court of Australia Act 1976 (Cth), s 25(1A) Judiciary Act 1903 (Cth), s 39B Migration Act 1958 (Cth), s 425(1)

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 discussed Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 referred to House v R (1936) 55 CLR 499 cited Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 cited Minister for Immigration and Multicultural and Indigenous Affairs v Khawar (2002) 210 CLR 1 referred to NAUV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 124 referred to Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476 cited SZEOE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 46 OF 2005 STONE J 31 MAY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 46 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZEOE