SZKPN v Minister for Immigration and Citizenship

[2008] HCASL 500

SZKPN
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 500
S273/2008

1. The applicant is a national of the Philippines.  She arrived in Australia in August 2006 and promptly made an application for a protection visa claiming to be a "refugee" within the Refugees Convention and Protocol.  That application was refused in December 2006 by a delegate of the Minister.

2. The applicant's claim was based on an alleged fear of persecution on political grounds.  She stated that an uncle had been shot dead in April 2001 because of his support for a candidate in a local election.  As a result, the applicant stated that she had become active in politics; that she had protested against a newly elected mayor whose supporters caused her to be threatened on several occasions; and that this had resulted in her relocation to Manila.  She stated that police had supported her political opponents causing her to leave the Philippines for Thailand.  However, because of visa problems she was forced to return to the Philippines; following death threats to relocate to Manila; and after further threats to leave for Australia to seek protection.

3. The applicant sought review of the delegate's decision in the Refugee Review Tribunal ("the Tribunal").  That Tribunal drew to her attention, for her response, evidence that she had been based in Manila for eleven years in stable employment and that she had travelled to Thailand without seeking protection.

4. The Tribunal did not accept the applicant's evidence or her response.  It noted reasons for finding her testimony unconvincing.  It rejected her claim for review.  It found her not to have been a credible witness.

5. Judicial review was sought in the Federal Magistrates Court (Turner FM). The Federal Magistrate rejected the applicant's arguments, including those based on the operation of s 424A of the Migration Act 1958 (Cth). He found that no jurisdictional error was established and dismissed the application.

6. An appeal to the Federal Court of Australia (Cowdroy J) likewise failed and it is from the orders of the Federal Court that the present application is made to this Court for special leave to appeal.

7. The applicant's draft notice of appeal appears to follow a template precedent.  It does not meaningfully address itself to the decision of the Federal Court. 

8. We are unconvinced that there would be reasonable prospects of success were special leave granted in this case.  We see no reason to doubt the correctness of the decisions of the courts and Tribunal below.  Although the Tribunal's reference to the failure to seek protection in Thailand was legally irrelevant, because Thailand is not a signatory to the Refugees Convention, when this element is excised from the decision there remain extremely powerful factual findings, sufficient to support the decisions below.  The application for special leave is therefore dismissed.

9. 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
28 August 2008 J.D. Heydon