SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judge: ALLSOP CJ
• Judgment Date: 12 June 2020
• Neutral Citation: [2020] FCA 779
• Date: 12 June 2020

FEDERAL COURT OF AUSTRALIA

SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779

Appeal from:	SZQYM & Anor v Minister for Home Affairs & Anor [2019] FCCA 490 SZQYN v Minister for Home Affairs & Anor [2019] FCCA 489
File numbers:	NSD 496 of 2019NSD 516 of 2019
Judge:	ALLSOP CJ
Date of judgment:	12 June 2020
Catchwords:	MIGRATION – appeal from the Federal Circuit Court of Australia – judicial review of decision of the Administrative Appeals Tribunal affirming refusal to grant a protection visa – whether Tribunal committed jurisdictional error – apprehended bias – whether Tribunal relied on fundamental error of fact – whether Tribunal failed to identify and assess a ‘receiving country’ under s 36(2)(aa) – appeal allowed
Legislation:	Evidence Act 1995 (Cth) ss 78, 136 Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 424, 424A
Cases cited:	ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 Barakat v Goritsas (No 2) [2012] NSWCA 36 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283 CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 375 ALR 47 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 Devaney v The Queen [2012] NSWCCA 285 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; 268 FCR 299 Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; 250 FCR 309 Han v Minister for Home Affairs [2019] FCA 331 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352 Michael Wilson & Partners v Nicholls [2011] HCA 48; 244 CLR 427 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; 190 FCR 248 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 265 CLR 285 Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; 109 FCR 152 SZQYM v Minister for Immigration and Citizenship [2014] FCA 427; 220 FCR 505 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 Tickner v Chapman [1995] FCA 987; 57 FCR 451 Webb v The Queen [1994] HCA 30; 181 CLR 41
Date of hearing:	3 March 2020 and 26 May 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	159
Counsel for the Appellants:	Mr S Prince SC with Mr P Bodisco
Solicitor for the Appellants:	McArdle Legal
Counsel for the First Respondent:	Ms R Francois with Ms K Hooper
Solicitor for the First Respondent:	Mills Oakley
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice, save as to costs

ORDERS

		NSD 496 of 2019
BETWEEN:	SZQYM First Appellant ; GCZ18 Second Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	ALLSOP CJ
DATE OF ORDER:	12 June 2020

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the Federal Circuit Court made on 15 March 2019 be set aside and in lieu thereof, subject to order 4 below, the Court orders that:

   1. the decision of the Administrative Appeals Tribunal made on 30 October 2018 be set aside;

   2. the matter be remitted to the Tribunal for decision according to law; and

   3. the first respondent pay the applicants’ costs.

3. The first respondent pay the appellants’ costs of the appeal.

4. Any party seeking to vary order 2(c) or 3 above, file and serve two pages of written submissions by 4pm 17 June 2020, any submissions in response to be filed and served by 4pm 19 June 2020 and the question thereafter to be dealt with on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

		NSD 516 of 2019
BETWEEN:	SZQYN Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	Allsop CJ
DATE OF ORDER:	12 June 2020

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the Federal Circuit Court made on 15 March 2019 be set aside and in lieu thereof, subject to order 4 below, the Court orders that:

   1. the decision of the Administrative Appeals Tribunal made on 30 October 2018 be set aside;

   2. the matter be remitted to the Tribunal for decision according to law; and

   3. the first respondent pay the applicant’s costs.

3. The first respondent pay the appellant’s costs of the appeal.

4. Any party seeking to vary order 2(c) or 3 above, file and serve two pages of written submissions by 4pm 17 June 2020, any submissions in response to be filed and served by 4pm 19 June 2020 and the question thereafter to be dealt with on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1. The resolution of these two appeals turns on considerations of a narrow character. That said, the breadth and nature of some of the matters raised in the appeals have caused me considerable concern. That concern arises from how the appellants have been treated by or in (if I may use the phrase) “the process” of their applications and from the human consequences to them of the rejection of their applications for protection – the risk of being returned to North Korea.

   ...