SZKUP & Anor v Minister for Immigration and Citizenship

[2008] HCASL 308

SZKUP & ANOR
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 308
S73/2008

1. This is an application for special leave to appeal from a decision of the Federal Court of Australia (Jessup J), made on 18 February 2008, dismissing an appeal from a decision of the Federal Magistrates Court of Australia (Scarlett FM), made on 6 September 2007. The Federal Magistrates Court dismissed proceedings before that Court arising out of a decision of the Refugee Review Tribunal to affirm a decision of a delegate of the first respondent not to grant Protection (Class XA) visas to the applicants.

2. The applicants, husband and wife, are citizens of India. The first applicant, the husband, applied for a protection visa upon the ground of his fear of persecution in India. The second applicant, the wife, applied for a protection visa based upon her situation as a dependent of the first applicant. The Tribunal accepted that the first applicant had suffered considerable difficulties as a result of the break down in the relationship between the first applicant's family and its former business partner. Among other things, the Tribunal also accepted that the first applicant had joined, and become an active member of, the BJP party in India, and that the first applicant's former business partner attempted to implicate the first applicant in a bomb blast that occurred in Mumbai. However, the Tribunal held that these difficulties arose as a result of financial and business dealings. Accordingly, the Tribunal was not satisfied that the first applicant had a well-founded fear of persecution for any Convention reason now or in the reasonably foreseeable future should he return to India.

3. Before Scarlett FM the applicants asserted that the Tribunal had failed to comply with s 424A of the Migration Act 1958 (Cth) and had denied the applicants procedural fairness. Scarlett FM pointed out that the s 424A argument was misconceived, because the Tribunal based its decision mainly on the evidence of the first applicant and because s 424A had no application to the particular circumstances. There was no substance in the claim of breach of procedural fairness. Before Jessup J the applicants endeavoured to put their case on new grounds. Jessup J declined to permit that, primarily because, on examination, there was no substantial basis for any of these new grounds. The application to this Court does not show any reason to doubt the correctness of Jessup J's decision. An appeal has no prospects of success.

4. The application is dismissed.

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

A.M. Gleeson
5 June 2008 J.D. Heydon