Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33

The Full Federal Court of Australia has passed down its decision in the case of Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33. The case concerned an application for appeal from the Federal Magistrates Court.

Point of Appeal

The grounds of the application for relief were two fold. Firstly, the applicant claimed that the Minister had erred by making his decision ‘on the basis of’ an ‘International Treaties Obligations Assessment’(ITOA) because that assessment applied the wrong standard of proof when assessing whether the Minister could have ‘substantial grounds for believing’ that the applicant would be arbitrarily deprived of his life.

Secondly, it is further claimed that the Minister had erred because his decision was not and could never be in the public interest.

Facts

The Applicant, SZQRB, is a national of Afghanistan of Hazara ethnicity and of the Shia Muslim religion. SZQRB claimed that it was no longer safe for him to reside in Afghanistan given the Taliban’s practice of catching and killing Hazaras. He later claimed that he would also be persecuted for his political opinions.

Upon review of his case, the Minister made the decision that SZQRB would be removed from Australia whether the ITOA with which he was provided was factually or legally correct.

Court Ruling

The Court found that the Migration Act permits the Minister to detain an unlawful non-citizen for the purpose of assessing that person’s claims for protection. The Minister must complete the process of the assessment before deciding to remove the claimant.

The Court also found that the Act assumes that the Minister will comply with Australia’s international obligations under the Refugees Convention, the CAT and the ICCPR, before the Minister allows a non-citizen to be returned to the country of his nationality, in circumstances where the non-citizen claims that there is a real risk that he will be persecuted or suffer substantial harm.

Conclusion

The court ultimately decided to grant an injunction in favour of the applicant. The Court ordered that SZQRB may make written submissions within 3 working days to the Minister but only if SZQRB contends for the declaration and order to be in different form.  SZQRB should lodge short minutes of order with those submissions that will include the order giving SZQRB leave to amend.

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