SZKJZ & Anor v Minister for Immigration and Citizenship

[2008] HCASL 203

SZKJZ & ANOR
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 203
S585/2007

1. The applicants, husband and wife, are nationals of India.  Their claim for protection under the Refugees Convention and Protocol relies, in substance, on the "fear" to which the husband deposes.  It is convenient to describe him as "the applicant".

2. The applicant's request for protection visas was rejected by a delegate of the Minister.  The applicant then sought review by the Refugee Review Tribunal ("the Tribunal").  However, the Tribunal affirmed the delegate's decision.

3. The applicant's case was based on an alleged fear of persecution by Muslim fundamentalists.  He claimed that, following an incident in Gujarat which had led to inter-communal riots, his shop had been burned and looted, and he had received threatening telephone calls from unknown Muslim fundamentalists.

4. The Tribunal rejected the applicant's application on the factual merits.  It considered that the applicant was not a credible witness.  It pointed to his four-year delay in travelling to Australia after the Gujarat riots.  It noted that the political party with which he was associated had formed the government of the State of Gujarat.  The Tribunal also noted country information.  It found that the applicant did not have a political or religious profile likely to attract the attention of Muslims.

5. The applicant then sought judicial review from the Federal Magistrates Court (Cameron FM).  The Federal Magistrate found no error on the part of the Tribunal, considering that, substantially, the applicant's complaints were addressed to the factual merits of  his claim.  Accordingly, his application was dismissed.

6. The applicant appealed to the Federal Court of Australia.  The appeal was heard by Madgwick J, exercising the appellate jurisdiction of that court.  His Honour could find no identifiable error on the part of the Federal Magistrate.  The appeal was therefore dismissed.

7. The applicant's application for special leave asserts a denial of natural justice and procedural fairness arising from the adoption of an overly burdensome definition of "well-founded fear" below.  Such an argument, in this case, would not enjoy reasonable prospects of success.  The claim of denial of procedural fairness lacks both particularity and substance.  The application for special leave is therefore dismissed.

8. Pursuant to 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