MZYVA & Anor v Minister for Immigration and Citizenship

[2013] HCASL 83

MZYVA & ANOR

v

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

[2013] HCASL 83
M14/2013

1. The applicants are citizens of India who arrived in Australia on 18 August 2009.  They each applied for a Protection (Class XA) visa on 22 October 2010.  On 28 June 2011, a delegate of the first respondent refused the applications.  The second applicant is the wife of the first applicant; her application for a Protection visa depends upon his claim.  Hereafter, reference to "the applicant" is to the first applicant.

2. On 27 January 2012, the Refugee Review Tribunal ("the Tribunal") affirmed the delegate's decision.  The applicant's principal claim was that he would be killed if he returned to India because of his political beliefs.  He also claimed that in two separate incidents in 2008 he was physically harmed because of his political beliefs.  The Tribunal doubted the applicant's credibility, due to inconsistencies between his written and oral evidence.  The applicant could not explain the similarity between his written claims and others before that delegate.  The Tribunal's concern that the applicant did not have a well-founded fear of persecution was confirmed by the substantial delay between the applicant's arrival in Australia and the lodgement of his visa application. 

3. On 6 September 2012, the Federal Magistrates Court (O'Dwyer FM) dismissed an application for review of the Tribunal's decision.  The applicants' grounds of review were expressed in general terms and were not particularised.  The grounds appeared to be articulated predominantly through the assistance and pooling together of common experiences of others.  When asked about how the grounds were put, the applicant was unable to provide a sensible explanation.  O'Dwyer FM considered each ground of appeal and found that the Tribunal had complied with its statutory obligations and that its decision was not affected by jurisdictional error.

4. On 6 February 2013, the Federal Court of Australia (Dodds-Streeton J) dismissed the applicants' appeal against the decision of O'Dwyer FM.  Dodds‑Streeton J held that O'Dwyer FM's decision was not affected by any legal, factual or discretionary error.

5. The applicants seek leave to appeal to this Court using the same unparticularised complaints as those raised in the Federal Court.  The application for special leave to appeal does not raise any question of law that would justify a grant of special leave.  The applicants do not make out any basis for doubting the correctness of the decisions below.  An appeal to this Court would enjoy no prospects of success.  Special leave should be refused.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
5 June 2013 P.A. Keane