SZJCV & Anor v Minister for Immigration and Citizenship
[2008] HCASL 559
SZJCV & ANOR
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 559
S366/2008
The applicants, husband and wife, are nationals of India. They arrived in Australia in December 2005 and applied for protection visas in January 2006, claiming to be "refugees" within the Refugees Convention and Protocol.
A delegate of the Minister refused the application. The applicants then sought review by the Refugee Review Tribunal ("the Tribunal"). An original decision of that Tribunal was set aside by the Federal Magistrates Court. However, upon rehearing, the Tribunal found that the application should be rejected. The claim for protection was based on the evidence of the applicant husband, the claim of the applicant wife being derivative.
The husband claimed to fear persecution on political grounds by virtue of his membership of Shiv Sena, a political movement in India. By reason of this association, the husband claimed to have attracted the adverse attention of other political activists, members of the NCP and BJP. He said that he had been pressured by political threats to him and his family; had suffered in his business; and had not been protected by police. He also claimed to have been subject to attacks by Muslims who had assaulted him and his wife.
The Tribunal accepted that the applicant had been involved in Shiv Sena at a local level. It also accepted that he had been assaulted. However, it decided that it was reasonable for the applicant to relocate within India and that this was possible because any political profile he had was local. Upon this basis, the Tribunal rejected the claim of protection obligations and dismissed the application for review.
The applicants then sought judicial review from the Federal Magistrates Court. In that Court, Nicholls FM rejected various complaints that the Tribunal had breached ss 91R and 424A of the Migration Act 1958 (Cth) ("the Act"). There is no point of principle in the determination of the Tribunal and no error, least of all jurisdictional error, is apparent.
From the rejection of judicial review by the Federal Magistrates Court, the applicants appealed to the Federal Court of Australia. In that court, Tracey J expressed his agreement in the conclusions of the Federal Magistrate. Specifically, Tracey J agreed that the applicants were substantially seeking merits review which, as such, was unavailable in the courts. The appeal was dismissed.
The draft notice of appeal to this Court appears to press the argument based on s 424A of the Act. It also relies on contentions of bias on the part of the Tribunal in the way it handled the evidence of the applicant wife in respect of relocation. Having regard to the decision of this Court in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 concerning relocation, there would be no prospects that the applicants would succeed in an appeal against that finding. Nor are any of the other points raised of a kind that would attract the grant of special leave to appeal to this Court. It follows that the application is dismissed.
In accordance with Rule 41.10.5 of the High Court Rules we direct the Registrar to draw up, sign and seal an order dismissing the application.
M. D. Kirby J. D. Heydon 2 December 2008
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