WZARI v Minister For Immigration And Multicultural Affairs And Citizenship and Anor

[2013] HCASL 201

WZARI

v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND CITIZENSHIP & ANOR

[2013] HCASL 201
P44/2013

1. The applicant is a citizen of Fiji who arrived in Australia in 1990.  On 24 March 2005, the applicant was convicted of aggravated sexual penetration, unlawful detention, threats to kill and breach of a Violence Restraining Order.  He was sentenced to a period of imprisonment for seven years and three months.  The applicant's Partner (Class BS Sub‑class 801) visa was cancelled on 10 March 2010.  The applicant applied for a Protection (Class XA) visa on 13 June 2012.  On 9 August 2012, a delegate of the first respondent refused the application.

2. On 14 September 2012, the Refugee Review Tribunal ("the Tribunal") affirmed the delegate's decision.  The Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm amounting to persecution because of his actual or imputed political opinion if returned to Fiji.

3. On 14 May 2013, the Federal Circuit Court of Australia (Judge Burchardt) dismissed an application for review of the Tribunal's decision.  The applicant relied upon two grounds:  first, that the Tribunal made a legal error in determining his claim; and secondly, that the Tribunal failed to apply the correct test for "degrading treatment".  Judge Burchardt held that the findings made by the Tribunal were open to it, and that the Tribunal applied the correct test.

4. On 9 August 2013, the Federal Court of Australia (Siopis J) dismissed the applicant's appeal against the decision of Judge Burchardt. Siopis J held that: two grounds of appeal raised by the applicant concerned factual findings open to the Tribunal; neither the Tribunal nor Judge Burchardt fell into error in determining that the applicant's anxieties over separation from his family were not relevant to his application; and the Tribunal did not fall into jurisdictional error when it considered whether the applicant would suffer "degrading treatment", within the meaning of s 36(2A)(e) of the Migration Act 1958 (Cth), if returned to Fiji. Further, Siopis J held that there was no evidence to indicate that the applicant was deprived of an opportunity to give evidence or make submissions, or that he was denied procedural fairness.

5. The applicant seeks special leave to appeal to this Court.  The application and additional submissions filed raise assertions of fact and contentions which are not relevant to the grant of a Protection visa.  There is no reason to doubt the correctness of the decision of Siopis J.  Special leave to appeal should be refused.

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 December 2013 P.A. Keane