MZQAP v MIMIA

[2005] HCATrans 624

[2005] HCATrans 624

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M34 of 2005

B e t w e e n -

MZQAP

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 29 AUGUST 2005, AT 9.30 AM

Copyright in the High Court of Australia

McHUGH J:   The Refugee Review Tribunal rejected the claim of the applicant, an Indian national, for a protection visa on the ground that the Tribunal found that there is no real chance that the applicant will be persecuted because of his support of and involvement in the Marumalarchi Dravida Munnetra Kazhagam (“MDMK”) and will not be persecuted for a Convention reason, as opposed to prosecuted, for his support of the Liberation Tigers of Tamil Elam (“LTTE”) in Tamil Nadu in India.

The Federal Magistrates Court held that the Tribunal did not err in finding that s 21 of the Indian Prevention of Terrorism Act (“POTA”) was not selectively applied to members of the MDMK.  The Court also held that the factual findings that the Tribunal reached were open to the Tribunal, and that the Tribunal did not fall into jurisdictional error.

The Federal Court dismissed an appeal on the ground that the Tribunal’s decision did not involve any error of law or jurisdictional error.

The applicant’s special leave application complained of errors of law. However, the Tribunal’s decision discloses no error of law. Further, the applicant’s contention that the decision of the Federal Court constituted an interlocutory judgment, and that the application should be remitted back to the Tribunal for re-consideration according to law, should also be rejected. It is noted that the Tribunal contravened s 91R(3) of the Migration Act 1958 (Cth) because the Tribunal failed to “disregard any conduct engaged in by the person in Australia”. The Tribunal had concluded that the fact “that the applicant has not been involved in any Tamil activities or groups in Australia, nor in any groups that show support for the LTTE ... indicates to the Tribunal that the applicant has exaggerated the depths of his conviction for his support to the LTTE and the Tamil cause.” V02/13858 at 17-18. However, this error of law did not affect “the [T]ribunal’s exercise or purported exercise of power” Craig v South Australia (1994) 184 CLR 163 at 179 because the Tribunal’s principal finding was that “any prosecution of the applicant for his support of the LTTE is no more than the application of a law of general application, and does not amount to persecution within the meaning of the Convention.” V02/13858 at 17.

The application is dismissed.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application.  I publish our joint reasons.

AT 9.33 AM THE MATTER WAS CONCLUDED