Applicant A47-2003 v MIMIA & Anor

[2006] HCATrans 482

[2006] HCATrans 482

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S587 of 2005

B e t w e e n -

APPLICANT A47/2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 SEPTEMBER 2006, AT 9.25 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant is a citizen of India and a Muslim who claims to fear persecution on the ground of religion and membership of a pro‑Muslim political party, Al-Umma (“UA”).  The applicant claimed to have been a leader of the UA in his local district of Thavijavur in the state of Tamil Nadu.  Following a bombing in 1997 which killed 39 Hindus at a public meeting in Coimbature and which was blamed by Hindu extremists on UA, in 1998 UA was officially banned and its leaders and members were arrested.  The applicant claimed that he was wanted by the authorities, avoided arrest by flight, and would face arrest and detention if he returned to India. 

The decision of a delegate of the respondent to refuse his application for a protection visa was affirmed by the Refugee Review Tribunal.  The Tribunal accepted the applicant’s account of his involvement with UA, and that it was likely that he would be arrested if he returned to India, and that police in India do on occasion commit human rights abuses.  However the Tribunal did not accept that this would be for any Convention reason.  Rather, relying upon the independent country information, the Tribunal held it would be because the government was attempting to maintain law and order and contain sectarian violence and terrorism, and was pursuing UA members because UA was an extremist organisation with a record of terrorist acts.  It would be reasonable for the police to investigate him as a leader of UA who might hold information relevant to their inquiries.  The Tribunal concluded that the applicant’s fears were based upon the prospect of being subject to criminal investigation, rather than upon any Convention reason.

The applicant’s application for judicial review on the grounds of jurisdictional error and denial of procedural fairness was dismissed by the Federal Magistrates Court by reason of failure to comply with the time limit imposed by s 477(1A) of the Migration Act 1958 (Cth) (“the Act”). Nicholls FM also found that the grounds of review were not in any event made out because it was open to the Tribunal to find that the Indian authorities were pursuing UA for the purposes of investigating serious crime rather than by reason of any Convention reason and that there had been no breach of s 424A(1) of the Act because the country information relied upon was not specifically about the applicant and so was within the exclusion comprised by s 424A(3).

An appeal to the Federal Court, at which the applicant was unrepresented, was dismissed by Bennett J, who also raised, considered and rejected an argument as to whether s 424A of the Act had been complied with in the light of the decision of this Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009; 215 ALR 162.

The applicant’s summary of argument relies upon vague grounds alleging contradiction in the Tribunal’s reasons, together with a repetition of the assertion of non‑compliance with s 424A of the Act. Much of the applicant’s written case is formulaic in nature and does not identify any error in the decision of Bennett J. There would be no prospects of success on any appeal to this Court from the Federal Court. Special leave is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish the disposition signed by Heydon J and myself.

AT 9.29 AM THE MATTER WAS CONCLUDED