SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs

The applicants, who had been granted protection visas, sought judicial review of the decisions of the Tribunal and Delegate to refuse their applications for review. The applicants argued that the Tribunal failed to consider relevant facts, denied them procedural fairness, misapplied the “real chance” test, and failed to consider their political activities. Federal Magistrate Emmett dismissed the applicants' applications for review and refused them leave to appeal to the Federal Court. The applicants' arguments were found to lack prospects of success. The Tribunal had correctly found that no claim had been made for compensation for the termination of their lease, and the Tribunal was not required to assist the applicants in pursuing their claims by the questions it asked. The Tribunal had not misapplied the “real chance” test, and the Tribunal was not required to consider the claim of persecution based on political opinion as the applicants had not made such a claim before the Tribunal.

The court held that the Tribunal was entitled to make factual findings based on the evidence before it, and the applicants had not made a claim that they would suffer harassment other than from the men who had previously harassed them or from other indigenous Fijians. The Tribunal had considered the likelihood of harassment from the same men and rejected the possibility of serious harm because of communal violence. The applicants' arguments that the Tribunal considered their case to be that they would suffer harm only when there is communal violence was rejected as a misstatement of the Tribunal’s findings and reasons. The court held that none of the grounds of appeal had prospects of success and dismissed the applicants' applications for review. The applicants were ordered to pay the first respondent's costs.