SZKTA v Minister for Immigration and Citizenship

[2008] HCASL 457

SZKTA
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 457
S226/2008

1. The applicant is a national of India.  He arrived in Australia in September 2006 and applied for a protection visa, claiming to be a "refugee" within the Refugees Convention and Protocol ("the Convention").  That application was rejected in January 2007 by a delegate of the Minister.

2. From such rejection the applicant applied for review by the Refugee Review Tribunal ("the Tribunal").  In May 2007, that Tribunal rejected the application and affirmed the decision of the delegate.

3. The applicant then sought judicial review from the Federal Magistrates Court (Orchiston FM).  The Federal Magistrate found no jurisdictional error and dismissed the application.

4. From that decision the applicant appealed to the Federal Court of Australia.  The appellate jurisdiction of that Court was exercised by Tamberlin J.  On 8 May 2008 his Honour dismissed the application.  It is from the order of dismissal that the applicant now seeks special leave to appeal to this Court.

5. The applicant claimed to fear persecution because he had witnessed Muslims in India setting fire to a Hindu business in the course of inter-communal violence.  He stated that he had reported the incident to police but that they had not acted on his complaint.  He claimed that he had also witnessed the murder of a Hindu male on the night of the riots. 

6. The Tribunal found that the applicant's account of the murder and subsequent response to it of the local community and police was inconsistent, lacking in detail and implausible.  In essence, the Tribunal rejected the applicant's claim on the basis that he was not a truthful witness. 

7. Upon this unpromising foundation, the applicant's request for judicial review presented serious problems for him. The applicant made various claims based on s 425 of the Migration Act 1958 (Cth) ("the Act") and s 424A of that Act. However, no jurisdictional error was found by the Federal Magistrate.

8. In the Federal Court, Tamberlin J observed that the only ground ultimately advanced was that the Tribunal had failed to consider all of the applicant's claims and the issues propounded by him.  No particulars were given of this complaint.  Tamberlin J was unconvinced that it was made good.  He concluded that the applicant's case for protection was dismissed for lack of credibility and that no arguable error had been demonstrated on the part of the Federal Magistrate or the Tribunal.

9. In this Court, in his draft notice of appeal the applicant seeks to raise new grounds of complaint.  Specifically, the applicant submits that he was not on notice of the inconsistency of his account of the murder of the Hindu male and that, accordingly, the Tribunal did not discharge its obligations as required by the decision of this Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.

10. The application to this Court does not enjoy reasonable prospects of success such as to warrant a grant of special leave.  The belatedly added grounds of appeal are without foundation.  Even if the Tribunal did rely on inconsistencies between evidence given before it and before the application for the protection visa, this would not involve a relevant jurisdictional error.  See SZBYR v Minister for Immigration and Citizenship & Anor (2007) 81 ALJR 1190; 235 ALR 609; [2007] HCA 26. There is nothing to suggest that the Tribunal misdirected itself as to the meaning of "persecution". Its decision was based on its rejection, as untrue, of the applicant's factual claims. Accordingly, there is no occasion to evaluate whether the claims, if true, would satisfy the meaning of "persecution" within the Convention.

11. On this basis, the application lacks reasonable arguability.  Special leave should therefore be refused.  The application is dismissed.

12. Pursuant to 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
7 August 2008 J.D. Heydon