M118-2003 v MIMIA

[2005] HCATrans 899

[2005] HCATrans 899

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B72 of 2004

B e t w e e n -

M118/2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 NOVEMBER 2005, AT 9.28 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant is a citizen of India who arrived in Australia in March 1994.  He claims to be entitled to refugee status by reason of a well-founded fear of political persecution.  The applicant claims that since 1983, while living in India, he supported the Liberation Tigers of Tamil Eelam (“LTTE”) movement in Sri Lanka.  After the LTTE was banned by the Indian Government in 1991, the applicant went into hiding, fearing arrest by the authorities.  He was subsequently suspected by the LTTE of having passed on information to the Indian authorities leading to the arrest of other LTTE supporters.  The applicant therefore claims to fear political persecution from both the LTTE and the Indian authorities.

The Refugee Review Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa.  The Tribunal accepted that the applicant had been a supporter of the LTTE and that the Indian authorities had investigated some LTTE supporters.  However, it considered that the applicant’s claims to fear persecution from both the LTTE and the Indian authorities lacked credibility.  There were significant inconsistencies in the applicant’s evidence; there was a long delay between the applicant arriving in Australia and applying for a protection visa, which the applicant had not satisfactorily explained; and the Tribunal considered the applicant had some motivation to exaggerate his claims to remain in Australia.  The Tribunal was unable to be satisfied on the material before it that the applicant had a well‑founded fear of persecution should he return to India.

The applicant applied to this Court for orders nisi for constitutional writs.  That application was lodged out of time.  The application was remitted to the Federal Court.  Kiefel J granted an extension of time but dismissed the application as demonstrating no basis for judicial review.  An appeal to the Full Court of the Federal Court (Lee, Merkel and Hely JJ) was dismissed.

We have considered the parties’ written submissions and the decisions of the Tribunal, Kiefel J and the Full Court.  An appeal to this Court from the Full Court would have insufficient prospects of success to warrant a grant of special leave.  Accordingly, special leave is refused with costs.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave with costs.  I publish the disposition signed by Kirby J and myself.

AT 9.30 AM THE MATTER WAS CONCLUDED