MZWHI v MIMIA

[2005] HCATrans 925

[2005] HCATrans 925

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M101 of 2005

B e t w e e n -

MZWHI

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 MONDAY 14 NOVEMBER 2005, AT 2.26 PM

Copyright in the High Court of Australia

GUMMOW J:   The applicant is a citizen of India who arrived in Australia in December 1998.  He claims to be entitled to refugee status by reason of a well-founded fear of political persecution.

The Refugee Review Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa.  The Tribunal considered that the applicant was not a convincing or entirely truthful witness and it did not accept all the elements of his claims.  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 sought judicial review of the Tribunal’s decision in the Federal Court.  Weinberg J dismissed the application as demonstrating no jurisdictional error in the decision of the Tribunal.  Leave to appeal from that judgment was refused by Sundberg J.  The applicant then lodged out of time further proceedings in the Federal Magistrates Court.  That Court dismissed the application as precluded by issue estoppel or Anshun estoppel – Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 – and further observed that there was no jurisdictional error apparent on the material before the Court.

An appeal to the Federal Court (Merkel J) was dismissed on 29 July 2005.  His Honour expressed the view that issue estoppel or Anshun estoppel probably did not apply as the decision of Weinberg J was interlocutory, but agreed that the applicant had failed to demonstrate any jurisdictional error in the Tribunal’s decision.

We have considered the applicant’s written case and the decisions of the Tribunal, the Federal Magistrates Court and the Federal Court.  There would be insufficient prospects of success in any appeal to this Court from the decision of Merkel J to warrant a grant of special leave.  Accordingly, special leave to appeal is 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 Kirby J and myself.

AT 2.28 PM THE MATTER WAS CONCLUDED