SZKSC & Anor v Minister for Immigration and Citizenship

[2008] HCASL 331

SZKSC & ANOR
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 331
S89/2008

1. The applicants are husband and wife and are citizens of India.  They arrived in Australia on 7 December 2006.  A delegate of the first respondent refused their application for protection visas on 8 February 2007.  On 10 May 2007 the Refugee Review Tribunal affirmed the delegate's decision.  The male applicant claimed to fear persecution because he was a Hindu and a member of the Bhartiya Janta Party (BJP) who employed both Hindus and Muslims in his business.  He claimed that he had been threatened and attacked and was fearful of contacting the police for protection.

2. The Tribunal wrote to the applicants on 12 March 2007 inviting them to attend a hearing but it did not receive a response. The Tribunal proceeded to convene the hearing and make its decision in their absence, pursuant to s 426A of the Migration Act 1958 (Cth). The Tribunal stated that it could not be satisfied that the male applicant had a well-founded fear of persecution on the limited evidence before it.

1. On 15 November 2007 the Federal Magistrates Court (Scarlett FM) refused an application for review of the Tribunal's decision. His Honour held that the Tribunal had not breached ss 425, 425A or 424A of the Act and had not fallen into error in applying the provisions of s 426A. His Honour also noted that, if the male applicant had been ill at the date of the hearing, as claimed, a letter or facsimile message could have been sent shortly thereafter to the Tribunal explaining his absence, however, this had not occurred.

1. On 3 March 2008 the Federal Court (Flick J) dismissed the applicants' appeal.  His Honour found the sole ground of breach of s 424A to be without substance as there was no relevant "information" to enliven the obligation.

2. The application to this Court does not advance any question of law that would justify the grant of special leave to appeal.  There is no reason to doubt the correctness of the decisions below.  The further claim that the applicants were not allowed to argue their case in the Federal Court is without merit. 

1. 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
12 June 2008