Background Minister for Immigration and Citizenship v SZMDS

1 background

1.1 facts
1.2 prior actions
1.3 arguments

background
facts

the applicant, known code szmds, citizen of pakistan claimed have engaged in homosexual activities 2005 2007 , fearful of persecution if returned pakistan. had resided in united arab emirates since 2004. in 2006 briefly visited united kingdom did not seek asylum @ time. in 2007 had returned pakistan 3 weeks. in 2007 arrived in australia , sought asylum refugee.

a delegate of minister immigtration , citizenship not satisfied applicant s claims of homosexuality credible , decided not grant him protection visa.

the applicant applied refugee review tribunal, created provide merits review of decisions relating grant of protection visas persons claiming refugees. tribunal affirmed decision not grant applicant protection visa. tribunal did not accept applicant s claims homosexual , found there no real chance face persecution if return pakistan. in particular tribunal found applicant s conduct in returning pakistan united arab emirates , failure seek protection during visit united kingdom in 2006 inconsistent claimed fear of persecution arising result of homosexuality. tribunal did not accept applicant fearful result of such activities or result of homosexuality.

under migration act 1958 decisions of tribunal final , merits of decision not challenged in court. in plaintiff s157/2002 v commonwealth, high court held section did not oust jurisdiction of high court under s75(v) of constitution, because did not extend decisions affected jurisdictional error. in order minimise applications high court, migration act 1958 gave same jurisdiction federal court , federal magistrates court.

prior actions

the jurisdictional errors alleged before federal magistrates court that

federal magistrate scarlett held tribunal had not committed jurisdictional error.

the applicant unrepresented before federal magistrates court represented pro bono barrister before federal court.

the applicant appealed federal court, moore j held tribunal fell jurisdictional error reaching conclusion on illogical , irrational grounds. held illogical , irrational tribunal s reasoning assumed others in pakistan discover applicant homosexual during brief period of visit without making findings how , that, in light of applicant s explanation, there no logical connection between failure apply protection in united kingdom , fear of persecution in pakistan.

the minister appealed high court , granted special leave on condition minister pay applicant s reasonable legal costs in federal court , in high court regardless of outcome.

arguments

the minister , tribunal had narrow discretion, in if satisfied applicant met criteria protection visa must granted , if not satisfied protection visa must refused. minister represented solicitor-general, gageler sc, argued tribunal s fact finding not illogical , mere illogicality in course of reaching conclusion of fact not independent ground of review, rather inference of jurisdictional error on other grounds. illogicality or irrationality must extreme show opinion formed not possibly formed tribunal acting in faith. applicant represented game sc argued whether applicant met criteria protection visa fact on tribunal s jurisdiction depended. determination of jurisdictional fact reviewed on grounds irrational, illogical , not based on findings or inferences of fact supported logical grounds .