SZHZZ v Minister for Immigration and Citizenship [2008] FCA 556

FEDERAL COURT OF AUSTRALIA

SZHZZ v Minister for Immigration and Citizenship [2008] FCA 556

MIGRATION LAW – protection visas – appellant a Filipino Muslim homosexual male – appeal from decision of Federal Magistrates Court affirming decision of Refugee Review Tribunal – whether Tribunal erred in failing to consider discrete basis for protection in appellant's being both Muslim and a male homosexual – whether serious harm feared – whether relocation finding of Tribunal conclusive where discrete basis for protection not considered – appeal upheld – matter remitted to Tribunal

Migration Act 1958 (Cth), s 36(2), s 91R SZHZZ v Minister for Immigration and Citizenship [2007] FMCA 1052 reversed Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 cited Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, (2003) 77 ALJR 1088 applied Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 followed SZBJH v Minister for Immigration and Citizenship [2008] FCA 501 followed VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 544; (2006) 81 ALJR 475 cited SZHZZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1277 of 2007

GYLES J

29 APRIL 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1277 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHZZ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GYLES J

DATE OF ORDER: 29 APRIL 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed. 2. Orders 1 and 2 made by the Federal Magistrates Court on 15 June 2007 be set aside and, in lieu thereof, the decision of the Refugee Review Tribunal be set aside and the appellant's application for a protection visa be remitted to the Refugee Review Tribunal for further decision according to law. 3. The first respondent pay the costs (if any) of the appellant of this appeal and of the Federal Magistrates Court proceeding.