Applicants A104-2003 v MIMIA

[2006] HCATrans 194

[2006] HCATrans 194

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A13 of 2005

B e t w e e n -

APPLICANTS A104/2003

Applicants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 APRIL 2006, AT 9.48 AM

Copyright in the High Court of Australia

GUMMOW J:   The primary applicant is the husband; the others are his wife and daughter.  The primary applicant, a Hindu citizen of India, claims to fear persecution because of his past association with a Sikh militant terrorist, which had caused the police to beat him.  The Refugee Review Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicants.  The Tribunal did not accept that the applicant had been harassed because of any association with a Sikh terrorist, or that he had any other involvement with Sikh organisations.  He was capable of relocating to a part of India other than the Punjab.  He had no well‑founded fear of persecution.

After this Court remitted an application for constitutional writs to the Federal Court of Australia, Lander J found that the Tribunal had fallen into jurisdictional error in concluding that witnesses supposedly corroborating the principal applicant had done so only because he had provided them with false information.  This had not been put to them or to the principal applicant.  However, Lander J dismissed the application for review because of the Tribunal’s conclusion that it would not be unreasonable for the principal applicant to relocate in India outside the Punjab.

An appeal to the Full Federal Court (Finn, Dowsett and Selway JJ) was dismissed.  It stated that there was no jurisdictional error beyond a denial of procedural fairness, and this it was prepared to assume.  The Full Court held that the Tribunal had grounds for concluding that Australia did not owe the applicants protection obligations which were independent of its rejection of the principal applicant’s evidence.  One was the capacity to move away from the Punjab.  Another was that violence in the Punjab had subsided.  Another was the principal applicant’s concern that the behaviour of the police towards him was merely a pretext for extorting money unrelated to any form of persecution.

The applicants’ special leave application offers no effective refutation of this reasoning.  It must therefore be dismissed with costs.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.  I publish the disposition signed by Heydon J and myself.

AT 9.50 AM THE MATTER WAS CONCLUDED