SZQAM v Minister for Immigration and Citizenship

[2012] HCASL 47

SZQAM
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2012] HCASL 47
S383/2011

1. The applicant is a citizen of Iran and arrived in Australia on 19 November 2006.  He applied for a Protection (Class XA) visa on 3 June 2010.  On 13 October 2010, a delegate of the first respondent refused his application.

2. On 15 February 2011, the Refugee Review Tribunal ("the Tribunal") affirmed the delegate's decision. The applicant claimed to fear persecution on grounds of sexual orientation. The applicant asserted that, were he to be returned to Iran, he would face discrimination and persecution on this basis. The Tribunal found that the applicant had fabricated all of his core claims. It held that the applicant had attended gay clubs and become involved with the Mardi Gras for the sole purpose of enhancing his application, and that this conduct was thus to be disregarded pursuant to s 91R(3) of the Migration Act 1958 (Cth). The Tribunal determined that the applicant had not furnished sufficient evidence to substantiate his claim to be homosexual. The Tribunal therefore did not accept as credible his claim that he was at risk of persecution in Iran for reasons of his membership of a particular social group comprising homosexual men in Iran.

3. On 18 August 2011, the Federal Magistrates Court (Nicholls FM) dismissed the applicant's application for review of the Tribunal's decision.  Nicholls FM noted difficulties with the applicant's application, but identified complaints based on, among other things: Wednesbury unreasonableness; the imposition of a burden of proof on the applicant; and alleged breaches of the rules of procedural fairness, the rule against bias and of ss 420, 424, 424A and 424AA of the Migration Act.  His Honour found that no jurisdictional error was discernible in the Tribunal's decision.

4. The applicant appealed against Nicholls FM's decision to the Federal Court. On 3 November 2011, Katzmann J dismissed the appeal for non-attendance pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

5. The application to this Court does not address the fact that the appeal to the Federal Court was dismissed for non-attendance.  It does not advance any question of law that would justify the grant of special leave to appeal.  

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