SZEJF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 724

FEDERAL COURT OF AUSTRALIA

SZEJF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 724 MIGRATION – protection visa – jurisdictional error – whether Refugee Review Tribunal properly took account of evidence before it – whether tribunal made proper use of investigative powers where tribunal did not take evidence into account yet did make finding that the evidence was not genuine or otherwise – whether appellant could modify the conduct that caused him to fear persecution – whether tribunal properly considered that relocation would protect the appellant from persecution – appeal allowed Held: The Refugee Review Tribunal failed to assess the appellant's case in accordance with law, as the tribunal (i) did not give proper reasons for its decision and (ii) did not give proper, genuine and real consideration to the applicant's claims that he had a well-founded fear of being persecuted for a Convention reason. Migration Act 1958 (Cth), s 414, s 427 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 applied Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 applied Applicant NADB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 followed Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411 cited Bushell v Repatriation Commission (1992) 175 CLR 408 cited CDJ v VAJ (1998) 197 CLR 172 at 200 [104] cited Chan v Minister for Immigration (1989) 169 CLR 379 cited Craig v South Australia (1995) 184 CLR 163 cited Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 cited Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 cited Kioa v West (1985) 159 CLR 550 cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 cited Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 cited Minister for Immigration v Yusuf (2001) 206 CLR 323 cited NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 applied Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Palme (2003) 216 CLR 212 cited Secretary of State for Education and Science v Thameside Metropolitan Borough Council [1977] AC 1014 cited SZGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 431 cited The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 followed Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 cited Zhang v Canterbury City Council (2001) 51 NSWLR 589 referred to SZEJF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR NSD 1710 OF 2005 RARES J 9 JUNE 2006 SYDNEY