Applicant S1815 of 2003

[2007] HCATrans 613

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S194 of 2007

In the matter of -
an application by APPLICANT S1815 OF 2003 for leave to issue a proceeding

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 10 OCTOBER 2007, AT 9.46 AM

THE COURT OFFICER: No appearance, your Honour.

HIS HONOUR: Thank you. On 23 April 2007 a Justice of this Court acting pursuant to rule 6.07 of the High Court Rules directed the Registrar to refuse to issue a document headed “Application for Special Leave to Appeal” without the leave of a Justice first had and obtained by the parties seeking to issue to file it. What is before me is an application for such leave.

When the matter was before me on 19 September 2007 I drew the attention of the solicitor for the applicant to the provisions of section 33 of the Federal Court of Australia Act 1976 and to certain decisions of this Court, the most recent of which is United Mexican States v Cabal (2001) 209 CLR 165 at 179 [30].

The purported application for special leave to appeal is from a judgment of Justice Nicholson in the Federal Court dated 20 February 2006. Justice Nicholson dismissed an application for an extension of time to file and serve an application for leave to appeal and for that leave. The earlier judgment in question is that of Justice Gyles, the electronic citation of which is [2006] FCA 1202. His Honour dismissed an application for an order nisi directed to the Refugee Review Tribunal and a party then described as the Minister for Immigration and Multicultural and Indigenous Affairs. The Federal Court was not acting in relation to any appeal from the Federal Magistrates Court.

Section 33(2) of the Federal Court of Australia Act 1976 provides that:

Except as otherwise provided by another Act, an appeal shall not be brought to the High Court from a judgment of the Court constituted by a single Judge.

No relevant statute otherwise provides. There is an exception in section 33(2) but it is in limited terms. The exception states:

However, this subsection does not apply to a judgment of Court constituted by a single Judge exercising the appellate jurisdiction of the Court in relation to an appeal from a judgment of the Federal Magistrates Court.

The decision of Justice Nicholson was not within the terms of that exception. Indeed, his Honour in refusing leave was not exercising the appellate jurisdiction. The effect of the decision was to deny any embarkation upon the exercise of appellate jurisdiction. That appears by analogy from what was said in the authorities I have referred to, including the passage in United Mexican States v Cabal (2001) 209 CLR 165 at 179 [30]. Further, there was no appeal at all from the Federal Magistrates Court.

The result is that any application for special leave would not be competently brought. For that reason it would be futile to grant the application for leave to issue such a proceeding. Accordingly, the application is refused.

AT 9.53 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicant, an asylum seeker, sought judicial review of a decision by the Refugee Review Tribunal (RRT) to affirm the Minister's decision to refuse to grant a protection visa. The applicant claimed to fear persecution in their country of origin due to their membership of a particular social group, specifically, women who had been subjected to domestic violence and who had subsequently left their husbands. The applicant had been granted a partner visa but this was cancelled by the Minister on the grounds that the applicant had not been in a genuine relationship with their sponsor. The RRT had affirmed the Minister's decision, finding that the applicant did not meet the criteria for a protection visa.

The primary legal issue before Gummow J was whether the RRT had erred in law in its assessment of the applicant's claim for a protection visa. Specifically, the court was required to consider whether the RRT had correctly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) in determining whether the applicant's fear of persecution was well-founded and whether they belonged to a particular social group for the purposes of the *Convention relating to the Status of Refugees* (1951) and its Protocol. The court also considered whether the RRT had adequately considered the evidence before it, including evidence of domestic violence and the potential for further harm upon return to the applicant's country of origin.

Gummow J found that the RRT had failed to properly consider the applicant's claim that she belonged to a particular social group, namely women who had left their husbands and were therefore at risk of persecution. The RRT had focused on the genuineness of the applicant's relationship with her sponsor, which was relevant to the partner visa but not determinative of her protection claim. Gummow J held that the RRT had erred in law by failing to engage with the specific characteristics of the alleged social group and the nexus between those characteristics and the feared persecution. The court applied the principles established in cases concerning the definition of a "particular social group" under the Refugee Convention, emphasizing the need for a common characteristic that binds members of the group and distinguishes them from the rest of the population.

The application for judicial review was granted, and the decision of the Refugee Review Tribunal was set aside. The matter was remitted to the RRT for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established