Wednesday, April 10, 2013

Refugee victory in the High Court

Today in SZOQQ v Minister for Immigration and Citizenship the High Court upheld an appeal that considered the interaction between the Refugee Convention and the protection provisions of the Migration Act.
In 2001 the appellant pleaded guilty to the manslaughter of his wife and was sentenced to seven years imprisonment.  The protection visa he held was cancelled under the character provisions of section 501 of the Migration Act.  Subsequently, after a number of applications, the Minister exercised the power under section 48B of the Act to “lift the bar” on the appellant making a fresh protection visa application.
The Minister’s delegate determined that the appellant had a well-founded fear of political persecution within the meaning of Art 1A(2) of the Convention.  However, the delegate further determined he was not a person to whom Australia owed “protection obligations” because Art 33(1) of the Convention (the prohibition on refoulement) did not apply to the appellant.  This was because Art 33(2) provided an exception to the refoulement prohibition where a refugee had committed a “particularly serious crime” and constituted a danger to the community. Section 91U of the Act provided that for the purposes of the operation of Art 33(2) the reference to “particularly serious crime” was defined in terms that applied to the appellant.
In the High Court, Keane J (with whom the other judges agreed) held that for the purposes of section 36 of the Act, the question of whether or not a person is a person to whom Australia owes protection obligations is to be determined simply by whether or not that person has a well-founded fear of persecution within the meaning of Art 1A(2) of the Convention.  Section 91U of the Act did not, in terms, seek to alter the content of section 36. The Minister’s argument proceeded upon the false assumption that the prohibition on refouelement was the only protection obligation engaged by the determination that the appellant satisfied Art 1A(2) of the Convention.
Accordingly, the appeal was upheld.
That will not be the end of the dispute between the appellant and the Commonwealth.  The Commonwealth has the power to refuse a visa under section 501 (the power it had previously exercised to cancel the original protection visa) and it can be anticipated that the Commonwealth will rely upon the appellant’s conviction to exercise that power. 

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