SZKKY v Minister For Immigration And Citizenship and Anor

[2008] HCASL 197

SZKKY
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 197
S558/2007

1. The applicants, husband and wife, are nationals of India.  On their arrival in Australia, they sought protection visas, claiming to be "refugees" within the Refugees Convention and Protocol.  A delegate of the Minister refused the application in which the husband ("the applicant") is the effective moving party.  The wife's entitlement to protection is derivative.

2. The applicant claimed to have been associated with the Indian National Congress ("INC").  He said that, on this ground, he had been attacked by local members of the Communist Party and had been blamed for the death of one of that party's members.  He asserted that police were unwilling, or unable, to protect him.

3. On application for review to the Refugee Review Tribunal ("the Tribunal"), the Tribunal noted that the INC was the lead party in the national government of India and the ruling party in the applicant's home State until May 2006.  On the basis of country information, it concluded that the applicant's home State observed the rule of law and afforded legal protection to those who felt threatened or persecuted.  It did not accept that the applicant was unable to avail himself of State protection in India.

4. From the dismissal of the review by the Tribunal, the applicant sought judicial review from the Federal Magistrates Court (Turner FM).  That court rejected a claim of bias; found no error of law; and dismissed the application for judicial review on the basis that, essentially, the applicant was seeking review of the factual merits as decided below.

5. On appeal to the Federal Court of Australia, Rares J found no error on the part of the Federal Magistrate.  Specifically, he noted that the claim of bias was, essentially, little more than a complaint concerning the factual conclusions that the Federal Magistrate had reached.

6. In the applicant's written case before this Court, seeking special leave to appeal, no foundation is provided to demonstrate jurisdictional or other legal error.  We are unconvinced that any occasion has been shown for the intervention of this Court.  The application is 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