SZIOF v Minister For Immigration And Citizenship and Anor

[2008] HCASL 394

SZIOF
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 394
S651/2007

1. The applicant is a citizen of Nepal.  On 31 October 2005, a delegate of the first respondent refused her application for a Protection (Class XA) visa.  The delegate's decision was affirmed by the Refugee Review Tribunal.  The applicant claimed to fear persecution based on her membership of a particular social group and on political grounds, because she was the wife of a Royal Nepalese soldier and she worked in the media.  The Tribunal found that there was not a real chance that the applicant would be subject to serious harm amounting to persecution for a Convention reason, following the changes to the political situation in Nepal in November 2006.  The Tribunal also attached significance to the fact that the applicant failed to flee to India, immediately upon obtaining a passport, instead departing from Nepal more than two years later.  In response to that point, the applicant had said that, although she had a passport, she did not have a visa.  The Tribunal considered that she did not need a visa to go to India if she had a Nepalese passport.

2. The Federal Magistrates Court (Cameron FM) dismissed an application for judicial review on grounds that included a ground asserting that the Tribunal failed to inform the applicant that it might rely on information that Nepalese citizens who held passports could travel to India without visas. This was said to constitute a failure to comply with s 424A of the Migration Act 1958 (Cth). Cameron FM further considered that the Tribunal's disbelief of some of the applicant's claims provided an independent basis, reasonably open on the facts, for its decision.

3. The Federal Court of Australia (Collier J) dismissed an appeal from the decision of Cameron FM. Collier J held that the information that Nepalese citizens who held passports could travel to India without visas was not information that had to be disclosed to the applicant. It was information that appeared in public documents that were available to the Tribunal, and it fell within s 424A(3)(a). Her Honour also found that there was no error in Cameron FM's consideration that the Tribunal's findings as to credit were an independent basis for its decision.

4. There are insufficient prospects of success of an appeal to warrant a grant of special leave.

5. The application is dismissed.

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

A.M. Gleeson
16 July 2008 J.D. Heydon