MZZZH & Anor v Minister for Immigration and Border Protection

[2015] HCASL 220

MZZZH & ANOR

v

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR

[2015] HCASL 220
M192/2015

1. The applicants are citizens of India.  On 14 August 2013, a delegate of the first respondent refused to grant the applicants Protection (Class XA) visas.  The first applicant claimed to be someone in respect of whom Australia has protection obligations, on the basis that he feared violence in India due to his membership of the Congress Party.  The second applicant's application was made in her capacity as a family member of the first applicant. 

2. On 18 December 2013, the Refugee Review Tribunal ("the Tribunal") affirmed the delegate's decision not to grant the visas.  The Tribunal found that the first applicant did not meet the criteria for the grant of a protection visa, either as a refugee, or under the complementary protection criteria.  Consequently, the decision to refuse the second applicant's application was also affirmed.

3. On 16 January 2015, the Federal Circuit Court of Australia (Vasta J) dismissed the applicants' application for judicial review of the Tribunal's decision.  Vasta J held that the Tribunal's findings were open on the evidence before it, and that its decision was not affected by jurisdictional error.

4. On 10 August 2015, the Federal Court of Australia (Davies J) dismissed the applicants' appeal. The first applicant appealed on a ground not raised before the Federal Circuit Court, namely that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) ("the Act") by failing to disclose information adverse to the applicants upon which it intended to rely. The first applicant did not particularise the adverse information said to have been used by the Tribunal. Davies J held that the Tribunal was not obliged to provide particulars of generic country information, or to give advance written notice that it considered the first applicant's claims not to be credible.

5. The applicants seek special leave to appeal to this Court. The proposed ground of appeal erroneously asserts jurisdictional error on the part of the Federal Circuit Court for failing to comply with s 424A of the Act. There is no reason to doubt the correctness of the decision of the Federal Court. An appeal to this Court would have no prospect of success. Special leave is 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
10 December 2015 P.A. Keane