Applicants S1570-2003 v MIMA & Anor

[2007] HCATrans 535

[2007] HCATrans 535

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S483 of 2006

B e t w e e n -

APPLICANTS S1570/2003

Applicants

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 THURSDAY, 6 SEPTEMBER 2007, AT 9.30 AM  

Copyright in the High Court of Australia

GUMMOW J:   The applicant is a citizen of Nepal.  A delegate of the first respondent refused the applications of him and his wife for protection visas.  The Refugee Review Tribunal upheld that decision on the ground that it was not satisfied that the applicant and his wife faced a real chance of persecution, nor that the claimed persecution was on Convention grounds.  Raphael FM dismissed an application for judicial review on the ground that the Tribunal had not fallen into jurisdictional error.  Downes J dismissed an appeal. 

Raphael FM disagreed with the Tribunal's conclusion that persecution because of an inter-caste marriage was not religious persecution, and the first respondent did not challenge that before Downes J.  It is a question whether the Tribunal was in fact wrong on this point, but even if it was wrong, an independent ground for its decision was that there was no real chance of persecution.  There are difficulties in construing the Tribunal's language on this aspect, and the grounds of appeal which the applicant wishes to argue if special leave is granted centre on the correct approach to construing the unclear language in these circumstances.  However, there is no real prospect of persuading the Full Court that Downes J's construction of the Tribunal's reasons is wrong.  Accordingly special leave must be 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 Justice Heydon and myself.

AT 9.32 AM THE MATTER WAS CONCLUDED