FTZK v Minister for Immigration and Border Protection [2014] HCA 26

HIGH COURT OF AUSTRALIA

FRENCH CJ, HAYNE, CRENNAN, BELL AND GAGELER JJ

FTZK APPELLANT

AND

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR RESPONDENTS

FTZK v Minister for Immigration and Border Protection [2014] HCA 26 27 June 2014 M143/2013

ORDER

1. Appeal allowed.

2. The order of the Full Court of the Federal Court of Australia made on 6 May 2013 be set aside and, in its place, order that:

(a) the proceedings be heard and determined as though instituted under s 476A of the Migration Act 1958 (Cth);

(b) a writ of certiorari issue directed to the second respondent quashing the decision made on 23 May 2012;

(c) a writ of mandamus issue directed to the second respondent requiring a differently constituted Administrative Appeals Tribunal to review according to law the decision of the first respondent to refuse the appellant a Protection (Class XA) visa; and

(d) the first respondent pay the appellant's costs of the proceedings in the Federal Court of Australia.

3. The first respondent pay the appellant's costs in this Court.

On appeal from the Federal Court of Australia

Representation

P G Nash QC with N P Karapanagiotidis for the appellant (instructed by Maddocks)

S P Donaghue SC with R J Sharp for the first respondent (instructed by Australian Government Solicitor)

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

FTZK v Minister for Immigration and Border Protection

Migration – Refugees – Application for protection visa – Whether Australia had protection obligations towards appellant – Exclusion from Refugees Convention – Art 1F(b) – Serious reasons for considering that appellant had committed serious non-political crimes prior to admission – Protection visa refused on basis of Art 1F(b) – Review by Administrative Appeals Tribunal – Whether open to Tribunal to apply exclusion – Whether Tribunal fell into jurisdictional error – Whether Tribunal misconstrued test – Whether evidence logically probative of serious reasons for considering appellant had committed serious non-political crimes.