SZJQQ & Anor v Minister for Immigration and Citizenship

[2008] HCASL 81

SZJQQ & ANOR
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 81
S388/2007

1. The applicants, citizens of India, are husband and wife.  They arrived in Australia on 10 May 2006.  On 12 July 2006 a delegate of the first respondent refused the applicants' application for protection visas.  The Refugee Review Tribunal affirmed that decision on 3 October 2006.

2. The husband ("the applicant") provided information in support of the applications of himself and his wife for protection visas. In the visa application he stated that he was an active member of the Vishwa Hindu Parishad in Gujarat, and that he and his wife had been subjected to threats and attacks from activists of the Student Islamic Movement of India. The Tribunal invited the applicant to attend a hearing. The applicant did not do so. In accordance with s 426A of the Migration Act 1958 (Cth) ("the Act"), the Tribunal proceeded to make its decision without taking any further action to enable the applicant to appear before it. The Tribunal concluded that on the information available it could not reach the level of satisfaction necessary to conclude that Australia owed protection obligations to the applicant.

3. The application to the Federal Magistrates Court was dismissed on 5 April 2007 by Cameron FM.  His Honour was unable to identify any jurisdictional error affecting the Tribunal's decision.  The applicant having denied himself the opportunity to put further information to the Tribunal, the Tribunal was unable to do other than affirm the delegate's decision.

4. Finn J dismissed the appeal to the Federal Court on 30 July 2007. In that Court, the applicants' one ground was that the Federal Magistrate failed to find that the Tribunal's decision was in breach of s 424A of the Act. Finn J dismissed this ground as a misrepresentation of the nature of the Tribunal's decision. The Tribunal did not make positive findings to affirm the delegate's decision. Instead, the Tribunal was unable to be satisfied as to the veracity of the applicant's claims.

5. The applicants' draft notice of appeal does not advance any question of law that would justify a grant of special leave to appeal.  There was no jurisdictional error in the conclusion of the Tribunal, and no reason to doubt the correctness of the judgment of the Federal Court. Special leave is refused.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.

W.M.C. Gummow
28 March 2008 S.M. Kiefel