SZOZV v Minister for Immigration and Citizenship

[2012] HCASL 57

SZOZV
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2012] HCASL 57
S380/2011

1. The applicant is a citizen of India and arrived in Australia on 25 July 2008.  He applied for a Protection (Class XA) visa on 14 May 2010.  On 15 September 2010, a delegate of the first respondent refused his application.  

2. On 20 January 2011, the Refugee Review Tribunal ("the Tribunal") affirmed the delegate's decision.  The applicant claimed to fear persecution in India on the grounds of his homosexuality.  The applicant gave evidence that although he thought he was homosexual when at school in India, he felt unable to express his homosexuality until he arrived in Australia.  The applicant claimed to have attended gay bars in Sydney's Oxford Street and to have had a homosexual relationship with a person called Smith, with whom he lived for approximately six months.  He further claimed that when his brother, with whom he also lived at times, discovered the relationship he beat the applicant and Smith and told the applicant's father of it, who threatened to kill him if he returned to India.  The Tribunal did not accept that the applicant was or ever had been homosexual, considering that his vague and inconsistent evidence suggested he contrived his homosexuality and the resulting problems with his family.  The Tribunal noted inconsistencies in his evidence about his contact with his family.  It also noted that the applicant was unable to elaborate on key aspects of his evidence that he was homosexual.  In particular, the applicant could not provide Smith's given name or details of Smith's personal circumstances, nor name any club or bar he had attended. 

3. On 15 June 2011, the Federal Magistrates Court (Smith FM) dismissed the applicant's application for review of the Tribunal's decision. Whilst the applicant advanced several grounds of review in his application, he in essence contended that the Tribunal made an incorrect decision on the evidence before it. Smith FM expressed himself to be unsatisfied that the Tribunal's decision was affected by any jurisdictional error, including any failure to follow the procedures for giving an applicant information falling within s 424A(1) of the Migration Act 1958 (Cth).

4. On 31 October 2011, the Federal Court of Australia (Foster J) dismissed the applicant's appeal from Smith FM's decision.  His Honour held that all of the grounds of appeal raised by the applicant sought to review the merits of the Tribunal's decision and did not grapple with the requirement that the appellant show error on the part of Smith FM.  To the extent that the Tribunal's failure to comply with s 424A was raised, no such non-compliance could be established.   

5. The applicant's draft notice of appeal in this Court relies on substantially the same grounds advanced in the Federal Court.  Those grounds do not enjoy sufficient prospects of success to justify a grant of special leave to appeal.  There is no reason to doubt the correctness of the decisions below. 

6. 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
29 March 2012