Applicants S1137-2003 v MIMIA & Anor

[2006] HCATrans 390

[2006] HCATrans 390

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S490 of 2005

B e t w e e n -

APPLICANTS S1137/2003

Applicants

and

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 1.03 PM

Copyright in the High Court of Australia

KIRBY J:  

Background

The applicants, nationals of Bangladesh, are husband and wife.  They arrived in Australia in April 1998 and applied for a protection visa the next month.  They claim to be refugees.  The basis of their claim is that the applicant husband is a Hindu and the wife was a Muslim.  They asserted, that, on this basis, their marriage was illegal in Bangladesh and that they had been subjected to family, religious and police harassment which had given rise to a well-founded fear of persecution.

The delegate of the Minister rejected the applicants’ application.  The Refugee Review Tribunal (“the Tribunal”) affirmed this decision.  Amongst other grounds, it concluded that the applicants had failed to show that their marriage was illegal in Bangladesh and had tendered evidence for that purpose which the Tribunal found was fraudulent.

The applicants then sought judicial review.  Initially, they did so in the Federal Court but their application was dismissed by Gyles J in December 2000.  They then joined in the grouped proceedings in this Court in Muin and Lie.  Their application in that respect was remitted to the Federal Court and ultimately dismissed by Emmett J in February 2004.  They then initiated a third application in the Federal Magistrates Court.  This came before Federal Magistrate Smith who rejected the application for judicial review in April 2005.  It was that decision, which the applicants challenged in a fresh appeal to the Federal Court, that gives rise to the present application for special leave to appeal to this Court.  In the Federal Court, Tamberlin J, exercising the appellate jurisdiction, dismissed the applicants’ application.  He did so in short reasons which addressed the two grounds which, he explained, represented the substance of the applicants’ complaint before him.

The first of these complaints was that Federal Magistrate Smith had failed to consider the argument that the Tribunal had denied the applicants procedural fairness and that it had been biased against them.  The second was that the Federal Magistrate had erred in not finding that the Tribunal had made a jurisdictional error when it took into account an incorrect view of the law with respect to inter-religious marriage in Bangladesh.  Tamberlin J rejected each of these arguments.

In this Court, the application for special leave contains one ground only.  In it, the applicants complain that the Federal Court erred in considering their argument of jurisdictional error when it did not correctly state the applicable law with respect to inter-religious marriage in Bangladesh.  The applicants’ written case also states that the Tribunal was required to inform the applicants of the adverse information relied on by it with respect to inter-religious marriage.  There is a further complaint about the inadequacy of the reasons of Tamberlin J for rejecting the application for judicial review addressed to the Federal Magistrates Court.

Disposition

We have considered carefully the history of this matter and the written argument advanced by the applicants.  It can be accepted that inter‑religious marriage, in some communities, including doubtless Bangladesh communities, occasions serious difficulties for those involved.  However, as this Court has said on many occasions, the function of judicial review is not, as such, to provide the opportunity for a fresh re‑agitation of the factual arguments that are properly decided by the Minister’s delegate or, on review, the Tribunal.  It is necessary for the party seeking judicial review to establish (relevantly) an error of law or jurisdiction that engages the jurisdiction of the judicial branch.

We are not convinced that the applicants have raised an issue of law or jurisdiction that would warrant the grant of special leave to appeal.  Although the reasons of Tamberlin J in the Federal Court are very brief, there is nothing in them that suggests that the Tribunal made a jurisdictional or other legal error in relying on the country information before it indicating that inter-religious marriage, as such, is not illegal in Bangladesh.  Nor have the applicants made out a case that the Tribunal was biased or failed to put them on notice of the information subsequently used in its determination.  In any event, the question of the availability of inter-religious marriage is a simple question of fact in the particular case.  It is not an issue that attracts a grant of special leave.

It follows that the application for special leave should be refused.

Order

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 1.07 PM THE MATTER WAS CONCLUDED