SZCLL & Anor v MIMIA & Anor

[2007] HCATrans 210

[2007] HCATrans 210

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S247 of 2006

B e t w e e n -

SZCLL

First Applicant

SZCLM

Second Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 22 MAY 2007 AT 9.28 AM

Copyright in the High Court of Australia

KIRBY J:   In November 2003, the Refugee Review Tribunal ("the Tribunal") rejected the applicants' application for review of the rejection of their application for protection visas.  An application for judicial review to the Federal Magistrates Court followed.  On 29 September 2005, Scarlett FM rejected that application, concluding that the applicants had not demonstrated jurisdictional or legal error on the part of the Tribunal.  An appeal was then taken to the Full Court of the Federal Court of Australia.  That Court was constituted by Spender, French and Cowdroy JJ.  On 3 July 2006, that Court unanimously dismissed the appeal.  It agreed that no error had been shown on the part of the Tribunal or the Federal Magistrates Court, including in an appeal from the Federal Magistrates Court (differently constituted) brought on behalf of the daughter of the present applicants which was heard jointly with the applicants' appeal and is to be considered separately.

The applicants are nationals of India who arrived in Australia in May 2003 and applied for protection visas which were refused by a delegate of the Minister.  The applicant husband is a Muslim.  The applicant wife is Hindu.  The Tribunal accepted that the applicant husband's father‑in‑law did not approve of the mixed marriage.  However, it concluded that any difficulties faced by the couple in this respect could be avoided by relocating within India outside any place where the father‑in‑law had influence.

Much of the argument below concerned whether the suggestion of relocation and any suggestion made as to the applicants' living discreetly in a new place constituted jurisdictional error.  In the circumstances of this case, the Full Court of the Federal Court did not detect any departure, on the part of the Federal Magistrate, from the principles established by this Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. We agree. Nor, on the facts, would this be a suitable case for this Court to consider the relevance of the availability of relocation in a large country such as India.

We are therefore unconvinced that the applicants would enjoy reasonable prospects of success were special leave granted.  Special leave is accordingly refused.

Because the applicants are unrepresented, their application has been dealt with in accordance with Rule 41.10 of the High Court Rules.  Pursuant to Rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.  I publish that disposition signed by Justice Callinan and myself.

AT 9.30 AM THE MATTER WAS CONCLUDED