SZKRP v Minister for Immigration and Citizenship

[2008] HCASL 410

SZKRP
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 410
S134/2008

1. The applicant is a citizen of India and arrived in Australia on 1 December 2006.  On 6 February 2007 a delegate of the first respondent refused his application for a protection visa.  On 8 May 2007 the Refugee Review Tribunal affirmed the delegate's decision.  The applicant claimed to have been an active member of the People's War Group (PWG) and to have joined the Radical Youth League (RYL) of the Communist Party of India (Marxist-Leninist).  He claimed to have been arrested on false charges and tortured by police because of his activities with the RYL, because he started and distributed a newspaper and because he had done propaganda work for the PWG.  The Tribunal found that the applicant was not a credible or forthright witness and that he was evasive in response to the Tribunal's questioning.  It did not accept that he was an active member of the PWG or the RYL, or that he had been engaged in the production of a newspaper.  The Tribunal also noted that the applicant had previously had opportunities to apply for protection but had not done so.

2. On 3 October 2007 the Federal Magistrates Court (Cameron FM) refused an application for review of the Tribunal's decision. His Honour rejected each of the grounds put forward by the applicant: there was no "incorrect application of law to facts" as the basis for the Tribunal's decision was the Tribunal's assessment of the applicant's credit, there was no failure to enquire, no denial of procedural fairness and no bias or lack of good faith. The weight given to the evidence was a matter for the Tribunal and could not ground a finding of jurisdictional error. Finally, his Honour was satisfied that the Tribunal, on consideration of the evidence, had come to the conclusion that the credibility of the applicant's case was so compromised that no corroborative evidence could assist it. Therefore, no jurisdictional error could be shown in the Tribunal's decision not to grant the applicant an extension of time to respond to the letter sent to the applicant pursuant to s 424A of the Migration Act 1958 (Cth).

3. On 5 March 2008 Gray J dismissed the applicant's appeal to the Federal Court.  The applicant sought an adjournment on the basis of his claim that he was seeking more factual information.  This application was rejected.  The only ground advanced by the applicant was that the Tribunal erred in failing to consider all of the claims and issues the applicant put to the Tribunal.  His Honour found that the applicant's claims went to the facts and that it was not within the power of the Court to review such findings.

4. The application to this Court does not advance any question of law that would justify the grant of special leave to appeal.  The applicant raises new claims not advanced in the courts below:  that the Tribunal misapplied the test of persecution and that the Tribunal failed to consider whether the applicant was a member of "a particular social group".  In view of the Tribunal's conclusion, on credibility grounds, that the applicant was not a member of the PWG or the RYL, it was unnecessary for the Tribunal to consider these issues.  There is no reason to doubt the correctness of the decisions below.

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

W.M.C. Gummow	S.M. Kiefel
31 July 2008