SZQRM & Ors v Minister for Immigration and Border Protection

[2014] HCASL 90

SZQRM & ORS

v

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR

[2014] HCASL 90
S316/2013

1. The first and second applicants are husband and wife, and the third applicant is their daughter.  The applicants are Lithuanian nationals who arrived in Australia in late 2010.  On 24 December 2010, the first applicant applied for the issue of Protection (Class XA) visas for himself, and his wife and daughter.  He claimed to fear persecution by reason of his and his wife's sexual orientation and their public expression of a sexually liberated ideology. 

2. On 24 February 2011, a delegate of the first respondent refused the application.

3. The delegate's decision was affirmed by the Refugee Review Tribunal ("the Tribunal").  However, by consent, the Tribunal's decision was set aside by the Federal Magistrates Court of Australia and the matter was remitted for consideration by a differently constituted tribunal.

4. On 30 October 2012, the Tribunal, again, affirmed the delegate's decision. 

5. On 11 July 2013, the Federal Circuit Court of Australia (Judge Nicholls) dismissed an application for judicial review.  An appeal from this judgment was dismissed by the Federal Court of Australia (Buchanan J).

6. The applicants apply for special leave to appeal. The applicants do not have legal representation and their application falls to be determined under r 41.10 of the High Court Rules 2004 (Cth).

7. In their written case the applicants complain that the Tribunal failed to investigate whether the first applicant's "severe depression" prevented him from taking "all possible steps" to avail himself of a right to enter and reside in the United Kingdom[1].  Secondly, the applicants submit that the Tribunal failed to understand and address the substance of their claim, which is to have been targeted by conservative right-wing groups in Lithuania for the liberal views that they espoused on sexual matters.  There is no reason to doubt the correctness of Buchanan J's conclusion that the Tribunal plainly understood and addressed both aspects of the applicants' claims to fear persecution[2]. Buchanan J considered that s 36(3) of the Migration Act 1958 (Cth) was engaged and afforded an alternative basis to defeat the applicants' claim for the grant of protection visas[3].  In circumstances in which no medical evidence was placed before the Tribunal of the first applicant's condition, the suggested ground of challenge to that conclusion is forlorn.  If special leave to appeal were granted, the appeal would have insufficient prospects of success. 

   [1]Migration Act 1958 (Cth), s 36(3).

   [2]SZQRM v Minister for Immigration and Border Protection [2013] FCA 1297 at [19].

   [3]SZQRM v Minister for Immigration and Border Protection [2013] FCA 1297 at [22].

8. The application is dismissed.

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

V.M. Bell
13 May 2014 S.J. Gageler