SZRES v Minister for Immigration and Citizenship

[2013] HCASL 32

SZRES

v

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

[2013] HCASL 32
S351/2012

1. The applicant is a citizen of India.  He arrived in Australia on 28 November 2010 on a business visa. He applied for a Protection (Class XA) visa on 10 January 2011 which was refused by a delegate of the first respondent on 10 March 2011.  

2. On 27 January 2012, the Refugee Review Tribunal ("the Tribunal") affirmed the delegate's decision.  In his application, the applicant claimed that he was a Christian and an active member of the Kerala Catholic Youth Movement.  During a religious festival at his parish church in 2010, fireworks caused the neighbouring Sree Narayana Dharma Paripalana Yogam ("SNDP") Hindu temple to catch fire.  The applicant claimed that because of his position as parish council secretary, he was blamed for the fire and members of the SNDP attacked his home.  He fled to Bangalore but upon his return, was attacked.  Despite expressing concerns about the applicant's credibility, the Tribunal did not find it necessary to make an adverse credibility finding.  Although some of the applicant's claims of past harm were accepted, the Tribunal was nonetheless not satisfied that he had a well-founded fear of persecution for a Convention reason should he return to India.  The passage of time since the fire, and the absence of any suggestion that Indian police would not protect the applicant, militated against a finding that he would face a real chance of serious harm should he return.

3. On 7 September 2012, the Federal Magistrates Court of Australia (Nicholls FM) dismissed the applicant's application for judicial review of the Tribunal's decision.  Nicholls FM held that all three of the applicant's grounds of review failed and that there was no legal error in the Tribunal's reasoning. 

4. On 23 November 2012, the Federal Court of Australia (Siopis J) dismissed the applicant's appeal from Nicholls FM's decision.  Siopis J refused the applicant leave to argue the first ground of appeal because it had not been raised before Nicholls FM and had no prospect of succeeding.  Ground two was also dismissed as it failed to identify any error on the part of Nicholls FM.

5. The application for special leave to appeal does not raise any question of law which would justify the grant of special leave.  An appeal to this Court would enjoy no prospects of success.

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

S.M. Kiefel
13 March 2013 S.J. Gageler