SZKGX & Anor v Minister for Immigration and Citizenship

[2008] HCASL 196

SZKGX & ANOR
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 196
S557/2007

1. The applicants are husband and wife and are nationals of India.  They arrived in Australia and immediately sought protection visas on the ground that they were "refugees" within the Refugees Convention and Protocol.  A delegate of the Minister refused their applications.  Substantially, the wife's claim is derivative, only the husband (“the applicant”) has made specific allegations of persecution according to the provisions of the Convention. 

2. The applicant's contention was that, in India, he was an active member of the Indian National Congress Party.  He claimed to have received information adverse to the Bharatiya Janata Party (“BJP”), a rival political party.  Because he gave that information to the press, he argued that he had been threatened by elements of the BJP whose electoral irregularities and corruption he had set out to expose.

3. The Refugee Review Tribunal ("the Tribunal") accepted that there had been some local animosity towards him because of his political activities.  However, based on his claims, it found that the harm, as described, did not constitute "persecution" within the Convention.  It was unconvinced that, in India, the applicant could not secure access to effective State protection.  It therefore considered that the chances of serious harm to the applicant were remote.  This led to the rejection of the application to the Tribunal.

4. The applicant sought judicial review from the Federal Magistrates Court (Driver FM). Apart from various factual complaints, the applicant submitted that the Tribunal had breached the requirements of s 424A of the Migration Act 1958 (Cth). The Federal Magistrate rejected the asserted breach of s 424A of the Act; the claims of error relating to relocation; and the availability of State protection. He founded his decision on the view that the harms suffered by the applicant did not constitute "persecution" and rejected the application for judicial review on that footing.

5. On appeal to the Federal Court of Australia (Stone J) the complaint of misapplication of s 424A of the Act was rejected for reasons that do not call for this Court's intervention.

6. In the applicant's written case for a grant of special leave from this Court, no basis is shown demonstrating error in the courts below or that an appeal to this Court would enjoy reasonable prospects of success.  The application is therefore dismissed.

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 for special leave.

M. D. Kirby
24 April 2008 J. D. Heydon