SZJPI & Anor v Minister for Immigration and Citizenship

[2008] HCASL 309

SZJPI & ANOR
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 309
S74/2008

1. This is an application for special leave to appeal from a decision of the Federal Court of Australia (Jessup J), made on 19 February 2008, dismissing an appeal from a decision of the Federal Magistrates Court of Australia (Emmett FM), made on 22 June 2007. The Federal Magistrates Court dismissed proceedings before that Court arising out of a decision of the Refugee Review Tribunal to affirm a decision of a delegate of the first respondent not to grant Protection (Class XA) visas to the applicants.

2. The applicants, husband and wife, are citizens of India. The first applicant, the husband, applied for a protection visa upon the ground of his fear of persecution, by reason of his political opinion, should he be obliged to return to India. The second applicant, the wife, applied for a protection visa based upon her situation as a dependent of the first applicant. The applicants did not attend the Tribunal hearing and their application was dismissed pursuant to s 426A of the Migration Act 1958 (Cth) ("the Act"). Based on the information before it, the Tribunal was not satisfied that the first applicant had suffered persecution in the past, or that he had a well-founded fear of persecution within the meaning of the Convention should he return to India in the foreseeable future.

3. The applicants' grounds for application for judicial review by the Federal Magistrates Court, and appeal to the Federal Court, were directed primarily to the Tribunal's alleged non-compliance with s 424A(1) of the Act. Emmett FM and Jessup J held, correctly, that this was not a case in which information had come to the Tribunal, which information would be the reason, or part of the reason, to affirm the decision under review. Rather, their Honours held, this was a case in which the first applicant's own factual case before the Tribunal did not satisfy the Tribunal that the first applicant had a well-founded fear of persecution for a Convention reason. A further ground, complaining that the Tribunal failed to take account of relevant material, was found to be without substance.

1. There is no reason to doubt the correctness of the reasoning of the courts below. Allegations of bias and procedural unfairness, as particularised, amount only to complaints that the applicants' case was not accepted. An appeal has no prospect of success.

2. The application is dismissed.

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

A.M. Gleeson
5 June 2008 J.D. Heydon