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

Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia, which held that the appellant was not a person to whom Australia owed "protection obligations" for the purposes of the Migration Act 1958 (the Act).

Facts

The appellant is an Indonesian national and was active in the Free Papua Movement. He has experienced a history of detainment and torture by Indonesian officials and was even seriously injured after being shot by Indonesian soldiers between 1973 and 1975. Resulting from this, he was granted a protection visa in Australia in 1996 only to be captured and detained in Indonesia again in late 1996 when visiting his family. After escaping and returning to Australia, he later pleaded guilty to a charge of manslaughter in 2001 and was sentenced to seven years’ imprisonment.

The appellant’s visa was cancelled in 2003 on the grounds that, in accordance with the “character test” provisions of the Act, Australia owed him no “protection obligations” because he constituted a threat to the community. This was in spite of the Minister’s determination that he did indeed have a well-founded fear of political persecution should he return to Indonesia.

Primary Decision

The Minister’s delegate and the Administrative Appeals Tribunal found that because the appellant had been convicted of a “particularly serious crime”, Australia owed him no “protection obligations” for the purpose of s 36 of the Act. This decision was affirmed by the Federal Court and the Full Court of the Federal Court.

High Court Decision

The High Court considered the facts and found that the decision in the below proceeding courts was contrary to its 2005 decision in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6. Consequently, the High Court unanimously held that the proceedings had been miscarried. A new hearing was ordered for the AAT to review the original decision of the Minister’s delegate.

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