SZKHE & Ors v Minister for Immigration and Citizenship

[2008] HCASL 366

SZKHE & ORS
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 366
S126/2008

1. The applicants are nationals of India.  They arrived in Australia in August 2006 and applied for protection visas, claiming to be refugees in accordance with the Refugees Convention and Protocol. 

2. The application was refused by a delegate of the Minister.  The applicants then sought review by the Refugee Review Tribunal ("the Tribunal").  The Tribunal was not satisfied that any discrimination suffered by the applicant husband (the moving party) was sufficiently serious to constitute persecution.  On that ground, it rejected the applications.

3. The applicants then sought judicial review from the Federal Magistrates Court (Cameron FM). The Federal Magistrate rejected their claim of a breach by the Tribunal of s 424A of the Migration Act 1958 (Cth) ("the Act"). He also rejected the argument that the Tribunal had misapplied s 91R of the Act. Moreover, he concluded that factual findings made by the Tribunal, including the finding that relocation within India was a course reasonably open to the applicants, were available to it. There being no jurisdictional error, the application for review was dismissed.

4. An appeal to the Federal Court of Australia (Lindgren J) failed, his Honour rejecting arguments concerning ss 424A and 91R of the Act. The applicant now seeks special leave to appeal to this Court.

5. For the most part the applicant husband's written case is devoted to factual assertions concerning his fear of persecution (from which the claims of the other applicants are derivative).

5

1. Given the issues contested below, there would be no reasonable prospects of success, were special leave to be granted to the applicants.  The persecution alleged related to the applicant husband's association with an organisation known as the MIM, and to related threats said to have been made against him by criminal elements from which local police and authorities could, or would, give no protection.  It was open to the Tribunal to find that any such complaints were unlikely to have much significance outside the local area of the applicants' residence in India, or to be sufficiently serious as to demonstrate persecution within the Refugees Convention.

2. On this basis, there is no proper foundation for this Court to intervene.  Special leave is therefore refused.

3. 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