SZNBX v Minister for Immigration and Border Protection [2018] FCA 1172

SZNBX v Minister for Immigration and Border Protection [2018] FCA 1172

The appeal was dismissed because the appellants did not challenge the primary judge's rejection of the Tribunal's independent findings that their refugee and complementary protection claims failed under ss 36(2)(a) and 36(2)(aa), making any alleged error about s 36(3) immaterial. In any event, no appealable error was shown: the Tribunal had material on which it could find that the appellants had a right, in the broad sense recognised by SZRHU, to enter and reside in other EU countries, there was no evidence that public security or public health discretions would be exercised against them, and the Tribunal was not obliged to investigate those possibilities for itself.

Jurisdiction
Australia
Judgment Date
29 August 2018
Procedural Posture
Migration Appeal / Appeal From a Judgment of the Federal Circuit Court of Australia Dismissing a Judicial Review Application Concerning an Administrative Appeals Tribunal Decision Affirming Refusal of a Protection Visa
Outcome
Appeal dismissed, with costs.
Legal Topics
['protection Visa' 'third Country Protection Under S 36(3) of the Migration Act 1958 (cth)' 'judicial Review' 'jurisdictional Error' 'right to Enter and Reside in European Union Countries' 'complementary Protection' 'refugee Claims']
['migration Law' 'administrative Law'] ['protection Visa' 'third Country Protection Under S 36(3) of the Migration Act 1958 (cth)' 'judicial Review' 'jurisdictional Error' 'right to Enter and Reside in European Union Countries' 'complementary Protection' 'refugee Claims']

Case Brief

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Procedural Posture

Migration Appeal / Appeal From a Judgment of the Federal Circuit Court of Australia Dismissing a Judicial Review Application Concerning an Administrative Appeals Tribunal Decision Affirming Refusal of a Protection Visa

Legal Issues

  1. 1 ['Whether the primary judge erred in not finding that the Administrative Appeals Tribunal failed to consider relevant facts and material in concluding that the appellants had a right to enter and reside in other European Union countries for the purposes of s 36(3) of the Migration Act 1958 (Cth).' 'Whether the primary judge erred in not finding that the Administrative Appeals Tribunal considered irrelevant material or material which did not exist.' 'Whether the primary judge erred in finding that it was open to the Administrative Appeals Tribunal to determine that the appellants had not taken all possible steps to avail themselves of third country protection under s 36(3).' "Whether any error concerning s 36(3) was immaterial because the appellants did not challenge the primary judge's rejection of their claims under ss 36(2)(a) and 36(2)(aa)."]

Ratio Decidendi

The appeal was dismissed because the appellants did not challenge the primary judge's rejection of the Tribunal's independent findings that their refugee and complementary protection claims failed under ss 36(2)(a) and 36(2)(aa), making any alleged error about s 36(3) immaterial. In any event, no appealable error was shown: the Tribunal had material on which it could find that the appellants had a right, in the broad sense recognised by SZRHU, to enter and reside in other EU countries, there was no evidence that public security or public health discretions would be exercised against them, and the Tribunal was not obliged to investigate those possibilities for itself.

Court Disposition

Appeal dismissed, with costs.

Orders

  • ['The first appellant be appointed the litigation representative of the third appellant.' 'The appeal be dismissed.' "The appellants pay the first respondent's costs, as agreed or assessed."]