MZWIQ v MIMIA & Anor

[2006] HCATrans 384

[2006] HCATrans 384

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M144 of 2005

B e t w e e n -

MZWIQ

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

THE 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 THURSDAY, 3 AUGUST 2006, AT 9.19 AM

Copyright in the High Court of Australia

KIRBY J:  

Background

The applicant is a national of Sri Lanka.  He arrived in Australia in March 1996 and sought protection as a refugee in June of that year.  In January 1997, a delegate of the Minister refused his application.  The applicant then sought review of that decision by the Refugee Review Tribunal (“the Tribunal”).  On 4 April 1997, the Tribunal affirmed the primary decision.  The applicant joined the parties to the Muin and Lie proceedings in this Court.  Ultimately, after this Court’s decision in those proceedings was delivered, the applicant’s proceedings were remitted to the Federal Court of Australia.  Following dismissal of the application by the Federal Court, the present application was filed in the Federal Magistrates Court in May 2004. 

Federal Magistrate McInnis, before whom the application then came, did not dispose of it on the basis of any principle of res judicata.  He took this course because, in deciding the application, he did not have access to full details of the initial Federal Court decision.  Further, he noted that the grounds of appeal in the earlier proceedings had been formulaic and that the new proceedings raised more specific complaints concerning a denial of procedural fairness in the failure of the Tribunal to put country information to the applicant.  Ultimately, however, Federal Magistrate McInnis concluded that there was no error in the reasoning process undertaken by the Tribunal, rejecting the contention that the applicant had been denied procedural fairness as he asserted.

The applicant then appealed to the Federal Court of Australia.  His appeal was heard by Heerey J, exercising the appellate jurisdiction of that Court.  His Honour dismissed the complaints of procedural unfairness on the part of the Tribunal.  He concluded that the applicant had failed to demonstrate any denial of natural justice or of procedural fairness.  In his opinion, the decision under review had turned essentially on factual, i.e. credibility, findings.  He rejected the applicant’s argument that the Tribunal had been bound to expose its mental processes or its provisional views so that the applicant could address submissions designed to affect their determination. 

In this Court, the applicant’s draft notice of appeal does not identify any real or viable grounds of appeal.  The applicant’s written case states that the Federal Court erred in finding that there had been no breach of natural justice with respect to the suggested inconsistency between the claimed detention of the applicant in Sri Lanka and a letter from the applicant’s employers.  This is an apparent reference to a finding, appearing in the Tribunal’s reasons, as part of its ultimate conclusion adverse to the applicant.  In this Court, the applicant contends that his “case has not been assessed properly both on the ground of credibility and demeanour”.

Disposition

We have carefully considered the applicant’s written case and the reasons of the Tribunal, the Federal Magistrate and of Heerey J in the Federal Court.  The application does not enjoy sufficient prospects of success to warrant the grant of special leave to appeal to this Court. 

The applicant’s claim of entitlement to refugee status depended, in essence, upon the resolution of factual issues that were adequately identified by the Tribunal.  The case is very much one that is fact specific.  This Court has repeatedly pointed out that it is not the function of judicial review, as such, to reassess primary factual conclusions.  Absent error of law, jurisdiction or procedure, such decisions will stand.  In our view, the applicant has not formulated any questions of law of general principle that would warrant a grant of special leave to appeal to this Court.  Accordingly, special leave must be refused.

Order

Pursuant to r 41.10.5 of the High Court Rules, we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish that disposition signed by Callinan J and myself.

AT 9.22 AM THE MATTER WAS CONCLUDED