SZJRU v Minister for Immigration and Citizenship [2009] FCA 315

FEDERAL COURT OF AUSTRALIA SZJRU v Minister for Immigration and Citizenship [2009] FCA 315 MIGRATION – application for protection visa – claim that appellant has well-founded fear of being persecuted for membership of particular social group – where appellant claimed to be parent of child born in contravention of China's one child policy – where appellant claimed to have been issued with forced sterilisation notice – delegate of first respondent refused application – Tribunal affirmed decision of delegate – whether Tribunal erred in approaching matter by not first identifying particular social group – whether Tribunal erred in finding forced sterilisation non-discriminatory penalty for contravention of law of general application – whether any error in finding as to forced sterilisation constitutes jurisdictional error Held: appeal allowed – no error in not identifying particular social group but jurisdictional error made in finding as to forced sterilisation.

Constitution s 75(v) Migration Act 1958 (Cth) ss 5, 65, 91R, 91S, 424A, 474 Federal Court Rules O 43 r 2 Convention relating to the Status of Refugees Art 1A Protocol relating to the Status of Refugees Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 discussed Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 discussed Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 discussed Craig v The State of South Australia (1995) 184 CLR 163 cited Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; 197 ALR 389 discussed Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 cited Minister for Immigration and Multicultural Affairs v Israelian (2001) 206 CLR 323 cited Muin v Refugee Review Tribunal (2002) 76 ALJR 966; 190 ALR 601 cited NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 cited Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; 198 ALR 59 referred to SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 followed Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 cited SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1 referred to SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 referred to SZKMX v Minister for Immigration and Citizenship [2008] FCA 856 referred to VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 discussed SZJRU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL