SZOIG v Minister for Immigration and Border Protection

The applicants, SZOIG, sought leave to appeal against a decision of the Federal Circuit Court, which had dismissed their application for a protection visa. The applicants, Indian nationals and Sikhs of Lubana ethnicity, had previously applied for a protection visa on the basis of the refugee criterion in s 36(2)(a) before the complementary protection provision in s 36(2)(aa) was enacted. Following a Full Court decision in SZGIZ, they made a second application for protection visas on the basis of complementary protection. The delegate refused their second application, and the Administrative Appeals Tribunal (AAT) affirmed that decision, finding that the applicants did not have a real risk of significant harm in India due to their ethnicity or religion. The applicants sought leave to appeal the Federal Circuit Court's decision, arguing that the primary judge had failed to consider legal and factual errors by the Tribunal and that the Tribunal had erred in not considering certain events postdating its decision.

The court considered whether the applicants had demonstrated that the Federal Circuit Court had exercised its discretion to dismiss the appeal wrongly. The court found no merit in the applicants' arguments that the primary judge had failed to consider legal and factual errors by the Tribunal or that the Tribunal had fallen into jurisdictional error. The court held that the primary judge had not erred in dismissing the applicants' appeal as there was no arguable case for the relief claimed. The court further held that the Tribunal was not required to consider events postdating its decision.

The application for leave to appeal was dismissed, and the applicants were ordered to pay the Minister's costs. The Federal Circuit Court's decision that the applicants were not eligible for protection visas under the complementary protection provision was upheld.