SZJXU & Anor v Minister for Immigration and Citizenship

[2008] HCASL 557

SZJXU & ANOR
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 557
S355/2008

1. The applicants are husband and wife and are nationals of India.  They arrived in Australia in April 2006 and applied for protection visas in June 2006.  They claimed to be refugees within the Refugees Convention and Protocol and entitled to protection on that account.  The claims of the applicants were based on the evidence of the applicant husband ("the applicant"), the wife's claim being derivative.

2. The applicant claimed to fear persecution on religious grounds.  He claimed that he had been an active member of Vishwa Hindu Parishad ("VHP").  He asserted that, as a result of communal rioting, his shop had been destroyed in 2002 and he had been subjected to attacks and threats against his life.

3. The applicant's claim was rejected by a delegate of the Minister.  His application for review by the Refugee Review Tribunal ("the Tribunal") failed.  The Tribunal concluded that, whilst there had been communal rioting which may have resulted in the destruction of the applicant's shop, his complaint of ongoing fear was not credible.  The Tribunal pointed to his remaining in the same location for four years after the riots.  It also pointed to country information as to many parts of India where inter-religious tolerance was observed.  It concluded that no protection obligations were owed to the applicant.

4. The applicants then sought judicial review from the Federal Magistrates Court.  In that court, Barnes FM rejected the applicants' claim of jurisdiction error.  Her Honour found no denial of procedural fairness nor breach of the provisions of the Migration Act 1958 (Cth) ("the Act"). She rejected an apparent claim seeking to enlarge the grounds of refugee status to include fear of persecution for political opinion. She was satisfied that no jurisdictional error had occurred.

5. The decision of the Refugee Review Tribunal was confirmed on appeal by the Federal Court of Australia (Tracey J). The Federal Court rejected unparticularised complaints that the Tribunal had breached s 424A of the Act. It found no jurisdictional error and dismissed the appeal.

6. The applicants' draft notice of appeal complains of a denial of natural justice by the Tribunal.  However, the applicants' written case is of a template variety and does not meaningfully address the decision below.

7. The applicants have not advanced any question of law nor provided an evidence-based demonstration of procedural unfairness or breach of the statute.  An appeal to this Court would not enjoy reasonable prospects of success.  The Tribunal's decision turned substantially upon its finding that the applicants could, if they had so required, have relocated within India.  In the facts as found, there is no basis upon which this Court would disturb that conclusion.  The application for special leave is therefore dismissed.

8. 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