SZJSA v Minister for Immigration and Citizenship

[2008] HCASL 368

SZJSA
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 368
S133/2008

1. The applicant is a national of India.  He arrived in Australia in March 2006 and applied for a protection visa, claiming to be a refugee within the Refugees Convention and Protocol.  His application was refused by a delegate of the Minister.  The applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision.  The Tribunal was not satisfied that the applicant would face "persecution" on the propounded ground, were he to return to India.  His application was therefore rejected.

2. The applicant then sought judicial review from the Federal Magistrates Court (Nicholls FM).  In that Court, the applicant complained that the Tribunal had imposed an inappropriate standard of proof; had failed to give him the benefit of the doubt; had breached various provisions of the Migration Act 1958 (Cth) ("the Act"); had breached the rules of natural justice; and had displayed bad faith or bias or the appearance thereof. All of these grounds were rejected by the Federal Magistrate, who concluded that no jurisdictional error was demonstrated. The application for judicial review was dismissed.

3. The applicant appealed to the Federal Court of Australia (Logan J).  His Honour dismissed the complaints made about both the Federal Magistrate's decision and that of the Tribunal. 

4. The applicant now seeks special leave to appeal to this Court.  His claim for protection was based upon the fact that he was a Muslim who had endeavoured to help lower castes of his community in the state of Tamil Nadu, thereby attracting adverse attention.  Allegedly, his activities brought him to the notice of two organisations (the RSS and the VHP) whose members entered his home, attacked him and destroyed his residence.  The applicant also claimed that he had been persecuted as a result of his membership of the Students' Islamic Movement of India ("SIMI").  He claimed that persecution had continued even when he moved from Tamil Nadu to Mumbai.

5. The Tribunal accepted that the applicant may have been a member of SIMI.  However, it was not satisfied that he had been persecuted on that account.  It also noted that, following elections in Tamil Nadu in 2006, a government sympathetic to Muslims had been elected.  It considered that the applicant would be able to receive effective State protection in India.

6. We have examined the decision of the Tribunal and the reasons of the courts below.  There is no error and no illogicality or irrationality in the Tribunal's decision.  The decisions of the courts below were sound.  The application to this Court, and the written case, are of a template variety and essentially make assertions concerned with the factual merits.  There is no foundation for an appeal to this Court. 

7. Accordingly, the application for special leave is refused.  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