SZQCJ v Minister for Immigration and Citizenship

[2012] HCASL 52

SZQCJ
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2012] HCASL 52
S411/2011

1. The applicant is a citizen of India who arrived in Australia on 19 June 2010.  On 30 July 2010, the applicant applied for a Protection (Class XA) visa.  The application was made on the basis that the applicant was a partner of another Indian national ("SZQCI"), and part of SZQCI's family unit.  In October 2010, at the invitation of the Department of Immigration and Citizenship, the applicant submitted his own application for a protection visa.  On 9 November 2010, a delegate of the first respondent rejected that application. 

2. On 4 March 2011, the Refugee Review Tribunal ("the Tribunal") affirmed the delegate's decision.  The applicant claimed to fear persecution on grounds of his sexual orientation.  The applicant claimed to have been in a homosexual relationship with SZQCI for three years, that his homosexuality had exposed him to harassment and assault, and that he was on account of his homosexuality unable to live in either India or Qatar (where he and SZQCI worked).  The Tribunal formed the view that the applicant had fabricated the claim to have been in a homosexual relationship with SZQCI, and that his claims to have been threatened and directly harmed were untruthful.  The Tribunal noted inconsistencies between the applicant's and SZQCI's evidence, and within the applicant's own evidence.

3. On 31 August 2011, the Federal Magistrates Court (Nicholls FM) dismissed the applicant's application for review of the Tribunal's decision. The applicant claimed that the Tribunal had committed jurisdictional error and had breached the rules of natural justice. Nicholls FM found that the findings of the Tribunal had been open to it on the evidence before it, and that there had been no jurisdictional error. His Honour also found that the Tribunal had complied with its procedural fairness obligations under the common law as well as its obligations under ss 424A and 425 of the Migration Act 1958 (Cth) ("the Act") and that, to the extent that the applicant alleged bias or the apprehension of bias on the part of the Tribunal, no such bias could be proven.

4. On 24 November 2011, the Federal Court (Katzmann J) dismissed the applicant's appeal and ordered the applicant to pay the costs of the first respondent. Katzmann J found that the applicant's grounds of appeal were without substance, and rejected the applicant's claim that the Tribunal had breached s 424A of the Act.

5. The application to this Court does not advance any questions of law that would justify the grant of special leave to appeal.  There is no reason to doubt the correctness of the decision 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