Applicants M141-2004 v MIMA & Anor

[2006] HCATrans 634

[2006] HCATrans 634

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M78 of 2006

B e t w e e n -

APPLICANTS M141 OF 2004

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL 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 WEDNESDAY, 15 NOVEMBER 2006, AT 9.18 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicants are a husband and wife and their four children.  They are citizens of Pakistan, and travelled to Australia in 1998.  On 2 November 2001 the family lodged an application for protection visas under the Migration Act 1958 (Cth) (“the Act”). The applicant husband claimed that he was entitled to a protection visa because of his fear of persecution in Pakistan. He alleged that this fear of persecution was sufficient to satisfy the criteria for granting a protection visa contained in s 36(2)(a) of the Act. His wife and children claimed visas on the basis of s 36(2)(b) of the Act, which enables the spouse and dependents of a claimant under s 36(2)(a) to also claim protection visas.

The basis of the husband’s fear of persecution allegedly stemmed from the fact that his parents had migrated to Pakistan from India in 1947, at the time of partition.  He claimed that the local population resented these migrants, and had murdered members of his family in 1976 or 1977.  He claimed to fear serious harm if he returned to Pakistan.

The husband’s claim for a protection visa was refused by a delegate of the first respondent on 19 March 2002. This refusal entailed that the claims of the applicant wife and children did not satisfy the requirements for obtaining protection visas under s 36(2)(b) of the Act.

The Refugee Review Tribunal (“the Tribunal”) reviewed the claims on 27 March 2003.  It found that there was no real chance that the applicant husband would experience serious harm if he returned to Pakistan, and described parts of his evidence as lacking in credibility.  Accordingly, the Tribunal affirmed the decision not to grant protection visas.

On 23 May 2003 the applicants sought judicial review of the Tribunal’s decision in the Federal Magistrates Court.  That application was dismissed by consent orders made on 3 June 2004.

The applicants applied in the original jurisdiction of this Court, and, on 13 April 2005, Hayne J remitted that matter to the Federal Magistrates Court, which heard it on 24 January 2006.

The applicants claimed that their solicitor had acceded to the earlier consent orders without authority.  They sought an extension of time to seek writs of certiorari and mandamus.  Hartnett FM dismissed that application, ruling that because the applicants had not taken any steps to set aside the consent orders from the previous proceedings, the principles of res judicata and issue estoppel barred the issues they sought to advance.  Her Honour also held that there had not been a satisfactory explanation for the delay in bringing the proceedings for certiorari and mandamus, and that the application had no prospect of success.  The decision of Hartnett FM was upheld in the Federal Court by Sundberg J on 12 May 2006.

The applicants’ case demonstrates no jurisdictional error on the part of the Federal Court or Federal Magistrates Court, and discloses no questions of law that would warrant a grant of special leave to appeal.  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 9.21 AM THE MATTER WAS CONCLUDED