SZOQQ v Minister for Immigration and Citizenship [2013] HCA 12

HIGH COURT OF AUSTRALIA

FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

SZOQQ APPELLANT

AND

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR RESPONDENTS

SZOQQ v Minister for Immigration and Citizenship [2013] HCA 12 10 April 2013 S334/2012

ORDER

1. Appeal allowed.

2. Set aside the orders of the Full Court of the Federal Court of Australia dated 23 March 2012 and, in their place, order that:

the appeal to that Court be allowed;

(b) the order of the Federal Court dated 4 November 2011 be set aside and, in its place, order that:

(i) a writ of certiorari issue directed to the second respondent quashing its decision dated 2 September 2010;

(ii) a writ of mandamus issue directed to the second respondent requiring it to review, according to law, the decision made by a delegate of the first respondent on 26 May 2009 to refuse the appellant a Protection (Class XA) visa; and

(iii) the first respondent pay the appellant's costs in the Federal Court; and

(c) the first respondent pay the appellant's costs in the Full Court of the Federal Court.

3. First respondent to pay the appellant's costs in this Court.

On appeal from the Federal Court of Australia

Representation

T A Game SC with N C Poynder for the appellant (instructed by Gilbert + Tobin Lawyers)

G R Kennett SC with H Younan for the first respondent (instructed by DLA Piper Australia)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

SZOQQ v Minister for Immigration and Citizenship

Immigration – Refugees – Judicial review – Minister's delegate found appellant had well-founded fear of political persecution if returned to Indonesia – Minister's delegate concluded Australia owed no "protection obligations" to appellant because appellant convicted of "particularly serious crime" – Whether "protection obligations" in s 36(2)(a) of Migration Act 1958 (Cth) ("Act") limited to non‑refoulement obligation in Art 33(1) of Convention relating to the Status of Refugees as amended by Protocol relating to the Status of Refugees – Whether s 91U of Act confines scope of Australia's "protection obligations" in s 36(2)(a) of Act – Whether Minister bound to consider if grant of visa not prevented by s 501 of Act.