SZKQB & Ors v Minister for Immigration and Citizenship

[2008] HCASL 489

SZKQB & ORS
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 489
S209/2008

The applicants for special leave to appeal are a family of citizens of India.  Each of the family members applied for protection visas on the basis of the claim of the applicant father ("the father") to fear persecution because of his political opinion.  The father claimed that he, his family and his business had been attacked because of his association with the Bharatiya Janata Party ("the BJP").  On 1 May 2007, the Refugee Review Tribunal affirmed the decision of the respondent Minister to refuse to grant the applicants protection visas. 

The father was invited to give oral evidence before the Tribunal. However, he did not appear at the hearing. Pursuant to s 426A of the Migration Act 1958 (Cth) ("the Act"), the Tribunal proceeded to make its decision in his absence. The Tribunal stated that is was not satisfied, on the insufficient evidence before it, that the father was a militant of the BJP or that there was a real chance he would suffer harm amounting to persecution. No specific Convention claims were advanced by or on behalf of the other applicants and it followed that none of the applicants had a well-founded fear of persecution for a Convention reason.

An application for an order to show cause why a remedy should not be granted under s 476 of the Act was dismissed by Cameron FM on 7 February 2008. His Honour rejected each of the applicants’ grounds of review and noted that no evidence had been adduced to support the allegation that the father had in fact attended the hearing. His Honour also considered whether the hearing invitation given to the father had complied with the requirements of the Act. It was clear to his Honour that the Act had been complied with.

Rares J dismissed the appeal to the Federal Court on 7 May 2008.  In his Honour’s view, there was no possible basis to conclude that the decision of the Tribunal was affected by jurisdictional error.

The application for special leave to appeal does not advance any question of law that would justify the intervention of this Court.  There are no prospects of success on any appeal to this Court.  Special leave is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.

W.M.C. Gummow
28 August 2008 S.M. Kiefel