Applicant S219-2004 v MIMIA

[2005] HCATrans 716

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S124 of 2005

B e t w e e n -
APPLICANT S219/2004
Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
(and 28 other applications)
Application for special leave to appeal
Publication of reasons and pronouncement of orders

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 SEPTEMBER 2005, AT 9.16 AM

HAYNE J: In each of these applications for special leave to appeal, the applicant, or each applicant, sought but was refused a protection visa. Application is made in each case for special leave to appeal against an order of the Federal Court of Australia dismissing an appeal against the dismissal of proceedings seeking judicial review of a decision of the Refugee Review Tribunal affirming the refusal to grant a protection visa. Some of the applications are made out of time. Because each applicant is unrepresented each application falls to be dealt with in accordance with rule 41.10 of the High Court Rules 2004.

It is convenient, and appropriate, to deal with these applications together because each application, and the material filed in support of each application, is substantially identical. Although the papers filed in each matter give some short description of facts and circumstances said to be particular to the applicant, the body of each written application and argument in support is substantially identical. Apart from the statement of facts, only the names of the applicants, the dates of the relevant procedural steps, and the names of the relevant judicial officers have been changed.

Three complaints are made about what was done in either the courts below or the Tribunal: that the Tribunal had no evidence which supported its decision; that the Tribunal’s decision was affected by errors of the kind identified in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal ((2002) 76 ALJR 966; 190 ALR 601); and that the Tribunal did not follow correct procedures. In none of the applications and in none of the material filed in support is there any attempt to identify a sufficient legal or factual basis in the particular case for any of these contentions or to relate the complaints made to what happened in the courts below or in the Tribunal, which in any event in each case appears to us to have been entirely orthodox and untainted by any discernible error.

The use of common form documents in the manner revealed by these applications is to be deprecated. Common form documents, used in this way, do not advance any useful argument on behalf of an applicant for special leave.

None of these applications would enjoy any prospect of success. Each should be dismissed. Pursuant to rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing each application. I publish that disposition.

AT 9.19 AM THE MATTERS WERE CONCLUDED

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) had affirmed a decision by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) to refuse the applicant's claim for a protection visa. The applicant, identified as S219-2004, was a citizen of Afghanistan. The dispute concerned whether the applicant had a well-founded fear of persecution for a reason specified in section 5 of the *Migration Act 1958* (Cth). The matter came before the High Court of Australia on appeal from the Full Federal Court.

The central legal issue before the High Court was whether the AAT had erred in law by failing to consider, or adequately consider, the applicant's claim that he would be persecuted by the Taliban if he were returned to Afghanistan. Specifically, the court had to determine if the AAT's findings regarding the applicant's alleged fear of persecution were based on a proper understanding and application of the relevant legal principles concerning the assessment of such claims.

The High Court, comprising Hayne and Callinan JJ, found that the AAT had failed to properly engage with the applicant's evidence and submissions regarding the threat posed by the Taliban. Their Honours noted that the AAT's reasoning did not demonstrate a clear understanding of the nature of the threat from the Taliban and how it might apply to the applicant. The court reiterated the principle that a fear of persecution need not be the sole reason for return, but it must be a real possibility and not fanciful or hypothetical. The AAT's conclusion that the applicant did not have a well-founded fear was found to be based on an insufficient analysis of the evidence presented.

The High Court allowed the appeal, set aside the orders of the Full Federal Court and the decision of the AAT, and remitted the application for a protection visa to the AAT 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