Applicant M87-2002 v MIMIA & Anor

[2006] HCATrans 381

[2006] HCATrans 381

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M103 of 2005

B e t w e e n -

APPLICANT M87/2002

Applicant

and

THE 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

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 AUGUST 2006, AT 9.11 AM

Copyright in the High Court of Australia

KIRBY J:  

Background

The applicant is a national of Sri Lanka.  He arrived in Australia in March 1995 and in May of that year applied for a protection visa pursuant to the Migration Act 1985 (Cth) on the basis of alleged refugee status.  In July 1995, a delegate of the Minister refused the application.  The applicant then applied to the Refugee Review Tribunal (“the Tribunal”) seeking review of the primary decision.  On 9 April 1996, the Tribunal affirmed the primary decision.

The applicant then sought judicial review from the Federal Court of Australia.  His application was heard in January 2005 by Kenny J.  The applicant was out of time to bring his application and the respondent contended that the application should be dismissed on that ground.  Without explicitly determining that point, Kenny J considered the arguments addressed to the suggested breach of procedural fairness relating to the use of country information concerning Sri Lanka about which the applicant complained.  She found no error on the part of the Tribunal to warrant disturbance of its orders.

The applicant then appealed to the Full Court of the Federal Court (constituted by Sundberg, Marshall and North JJ).  Before that Court, the issue was whether Kenny J had erroneously failed to find a denial of procedural fairness with respect to the use that the Tribunal had made in its hearing of country information.  That information concerned a radical Marxist Sinhalese nationalist and terrorist organisation, Janathat Vimukthi Peramuna (the JVP).  However, the Full Court agreed with Kenny J that there had been no denial of procedural fairness and it affirmed the reasons given by her Honour.  It concluded that its view in this respect had been reinforced by concessions made by the applicant who represented himself in the oral hearing of the appeal.

The applicant’s draft notice of appeal to this Court states that the jurisdictional error upon which he relies involves the failure of the Tribunal to give him a fair hearing and specifically to put to him country information concerning the relevant situation in Sri Lanka upon which he should have been invited to make submissions and, possibly, to offer evidence.

Disposition

We have carefully considered the written case of the applicant, his proposed grounds of appeal and the reasons of the Tribunal and of the judges of the Federal Court.  In our opinion, the applicant has not advanced any grounds of law or of jurisdiction that would warrant a grant of special leave to appeal to this Court.  The conclusion of the Tribunal was fully open to it on the material placed before it.  In so far as the applicant’s complaint of unfairness concerns a factual element related to the issue of a passport, it is clear enough that the suggestion of implausibility of the applicant’s case was raised with him in the Tribunal.  It cannot be said that he was unaware of the substance of the issue which the Tribunal determined adversely to him.  No consideration of general or wider importance suggesting the grant of special leave is apparent.  It follows that special leave should be refused.

Orders

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

AT 9.14 AM THE MATTER WAS CONCLUDED