Applicants S1647 of 2003 v MIMIA & Anor

[2007] HCATrans 207

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C9 of 2006

B e t w e e n -

APPLICANTS S1647 OF 2003
Applicant
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 TUESDAY, 22 MAY 2007 AT 9.20 AM

KIRBY J: This is the second attempt by the applicants to secure special leave to appeal from this Court. The first attempt failed on 30 August 2005. On that day, McHugh and Heydon JJ refused the applicants special leave to appeal from a judgment of Stone J, exercising the appellate jurisdiction of the Federal Court of Australia. Her Honour, on 15 April 2005, dismissed an appeal from a decision of Federal Magistrate Barnes, dated 23 November 2004, in turn challenging the refusal by the Refugee Review Tribunal ("the Tribunal") on 11 June 1998 for review of an application for a protection visa which had been declined by a delegate of the Minister on 25 June 1997.

Notwithstanding this extensive litigation, the applicants filed a fresh application in the Federal Magistrates Court some three weeks after the foregoing refusal of special leave by McHugh and Heydon JJ. That application was returned before Federal Magistrate Mowbray on 23 March 2006. His Honour dismissed it pursuant to Rule 13.10 of the Federal Magistrates Court Rules, on the basis that it was an abuse of the process of the Court or otherwise untenable. The applicants then renewed their appeal to the Federal Court. Once again, Stone J dismissed the application concluding, in the light of the history, that the Federal Magistrate had been correct to dismiss it on the basis that he did.

The decision of the Federal Court, now challenged, was clearly correct. There is no prospect of success in this Court, including on the new grounds propounded by the applicants, a mother and son who are nationals of India, deriving from Punjab. The application is therefore refused.

Because the applicants are unrepresented, their application has been dealt with in accordance with Rule 41.10 of the High Court Rules. Pursuant to Rule 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition signed by Justice Callinan and myself.

AT 9.22 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicants, identified as S1647 of 2003, sought judicial review of decisions made by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) and the second respondent, the Refugee Review Tribunal. The core of the dispute concerned the refusal of the applicants' claims for protection visas. The matter came before the High Court of Australia, with Justices Kirby and Callinan presiding.

The central legal questions before the High Court were whether the Refugee Review Tribunal had erred in law by failing to consider certain aspects of the applicants' claims, specifically concerning the subjective fear of persecution and the objective likelihood of such persecution occurring. The court was also required to determine whether the Tribunal had adequately addressed the evidence presented by the applicants regarding their alleged experiences and the potential dangers they faced upon return to their country of origin.

The court's reasoning focused on the principles of administrative law governing the review of decisions by tribunals. Justices Kirby and Callinan examined the evidence and the Tribunal's reasons for decision to ascertain if the Tribunal had properly applied the relevant legal tests for assessing claims for protection visas. This involved scrutinising whether the Tribunal had given due weight to the applicants' subjective fears and had conducted a sufficiently rigorous objective assessment of the risks involved. The court considered the established legal framework for determining refugee status, including the requirements of the *Migration Act 1958* (Cth) and international conventions.

The High Court ultimately found that the Refugee Review Tribunal had made errors of law in its assessment of the applicants' claims. Consequently, the court made orders setting aside the decisions of the Tribunal and remitting the applications for reconsideration by the Tribunal 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