SZTZH v Minister for Immigration and Border Protection [2017] FCA 55

FEDERAL COURT OF AUSTRALIA

SZTZH v Minister for Immigration and Border Protection [2017] FCA 55 Appeal from: SZTZH v Minister for Immigration & Anor [2016] FCCA 1139

File number: NSD 856 of 2016

Judge: BROMBERG J

Date of judgment: 2 February 2017

Catchwords: MIGRATION – Protection (Class XA) visa – appeal from the Federal Circuit Court of Australia ("FCC") – whether FCC erred in failing to discern jurisdictional error in Tribunal's decision – where the visa applicant, through his migration agent, made to the delegate a claim to be owed protection obligations on the basis of being a member of a particular social group – where the claim was not repeated before the Tribunal – whether the Tribunal constructively failed to exercise its jurisdiction by not engaging with the claim in a real or active way – Tribunal's reasons indicate that it considered the claim not pressed and did not deal with the claim on its merits – where it was conceded that the Tribunal had a duty to consider the claim – Tribunal constructively failed to exercise its jurisdiction under s 414 of the Migration Act 1958 (Cth) – the FCC erred in failing to discern Tribunal's error – appeal allowed

Legislation: Migration Act 1958 (Cth) ss 36, 411, 414, 474

Cases cited: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 MZZKA v Minister for Immigration and Border Protection [2014] FCA 633 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 SZTZH v Minister for Immigration & Anor [2016] FCCA 1139