Applicant S1486-2003 v MIMIA & Anor

[2007] HCATrans 86

[2007] HCATrans 086

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S64 of 2006

B e t w e e n -

APPLICANT S1486 OF 2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 1 MARCH 2007, AT 9.22 AM

Copyright in the High Court of Australia

KIRBY J:   The male applicant (the “applicant”) and his family, who are of Sri Lankan nationality, sought and were denied protection visas by a delegate of the first respondent.  The applicant says that he is a Tamil and was employed in his homeland as a senior Customs Official.  He claims to have a well‑founded fear of persecution, principally for two reasons:  (1) threats made to him by the Liberation Tigers of Tamil Eelam (LTTE); and (2) reprisals by other senior officials, criminals and the LTTE on account of his zealous performance of his duties.

As to the applicant’s claim of fear of persecution for a Convention reason, the Refugee Review Tribunal, to which the applicant applied for review of the denial of a visa to him, said that not only had the applicant embellished his account, but also, any adverse attention that he may have attracted was not racially, religiously or politically motivated, or motivated by reason of his membership of a particular social group.

The applicant then sought, and was refused, relief in the Federal Court. Subsequently, he applied for relief under section 75(v) of the Constitution. The Federal Court declined to grant an order nisi.  The applicant nevertheless applied for a review of the Tribunal’s decision in the Federal Magistrates Court, and when he failed there, sought unsuccessfully to have the Tribunal’s decision overturned by the Federal Court.  It is in respect of the latter decision that the applicant applied to this Court for special leave to appeal.

The respondent, in addition to urging that there is no demonstrable jurisdictional error to enliven the jurisdiction of this Court, as has been previously submitted, would argue in this Court that there is an issue estoppel precluding the grant of the relief sought.

In our view, no jurisdictional error has been shown, nor is such a submission reasonably arguable.  There is thus no need to consider any question of issue estoppel.  The applicant’s application for special leave to appeal must be dismissed.

Because the applicant is unrepresented, this application for special leave falls to be dealt with in accordance with rule 41.10 of the High Court Rules 2004. Pursuant to rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application.

I publish that disposition signed by Justice Callinan and myself.

AT 9.25 AM THE MATTER WAS CONCLUDED