SZJLP & Anor v Minister for Immigration and Citizenship

[2008] HCASL 365

SZJLP & ANOR
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 365
S118/2008

1. The applicants are nationals of India.  They arrived in Australia in December 2005 and applied for protection visas, claiming to be refugees entitled to protection from Australia under the Refugees Convention and Protocol.  In April 2006, a delegate of the Minister refused their applications.  The applicants are husband and wife and the wife's application is derivative from that of the husband.

2. A delegate of the Minister having rejected the application, the applicants sought review by the Refugee Review Tribunal ("the Tribunal").  That Tribunal was not satisfied that the applicant husband was owed protection obligations.

3. The applicants then sought judicial review from the Federal Magistrates Court (Lloyd-Jones FM). In that Court, the applicants' complaints were addressed to the Tribunal's findings of fact but there was also reference to s 91R of the Migration Act 1958 (Cth) ("the Act"). The Federal Magistrate could find no jurisdictional error and dismissed the application.

4. Thereupon, the applicants appealed to the Federal Court of Australia (McKerracher J). The complaint advanced in that Court was that the Tribunal had breached s 424A of the Act, despite that ground not being raised before the Federal Magistrate. No attempt was made to explain what adverse information had been used by the Tribunal that had not been disclosed in advance to the applicants. No error was evident from the record or the reasons of the Tribunal. Unsurprisingly, therefore, the appeal and thus the application for judicial review were refused.

5. The applicant husband claimed to fear persecution from Muslims in India on account of his membership of the BJP, one of India's major political parties.  He claimed to have been threatened by Muslims who had made an attempt on his life.  He stated that the business for which he worked had been targeted and looted; that local Muslims had abused and threatened him; and that he had received no protection from police.

6. The Tribunal accepted that businesses such as that for which the applicant worked had been vulnerable to damage during communal riots in India 1992 and 2002. It also accepted some parts of the applicant husband's evidence. However, whilst finding that the applicant was generally credible, it concluded that he had exaggerated the threat posed to him and the dangers which he faced. It was therefore not satisfied that he was owed protection obligations because of a fear of "persecution". These were all conclusions that were open to the Tribunal on the basis of the record. No jurisdictional error is manifest. There is no legal substance in the point belatedly raised under s 424A of the Act: see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; 235 ALR 609; [2007] HCA 26. Accordingly, the application for special leave is refused.

7. 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
20 June 2008 J. D. Heydon