MZWMI v MIMIA & Anor

[2006] HCATrans 690

[2006] HCATrans 690

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M161 of 2005

B e t w e e n -

MZWMI

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 THURSDAY, 14 DECEMBER 2006, AT 9.29 AM

Copyright in the High Court of Australia

KIRBY J:   The applicant and her two sons are nationals of India.  They arrived in Australia in May 1996.  In August 1996, the applicant applied for a protection visa extending to them all.  In June 1997, a delegate of the respondent Minister refused this application.  The applicant then sought review before the Refugee Review Tribunal (“the Tribunal”).  Two adjournments were granted by the Tribunal.  The applicant was informed that no further adjournments would be allowed.  Despite this, she failed to attend the hearing.  On the materials before it, the Tribunal declined to accept the applicant’s claims of the requisite well-founded fear of persecution for reasons of her husband’s involvement in the Sikh Independence Movement.  Essentially, the Tribunal affirmed the decision of the delegate based on grounds of the applicant’s lack of credibility.

The applicant sought judicial review and her proceedings became part of the Muin proceedings in this Court.  They were remitted to the Federal Court which, in turn, transferred them to the Federal Magistrates Court.  In that court, the proceedings were first heard in March 2004 by McInnis FM.  He accepted the Minister’s submission that the applicant had failed to demonstrate jurisdictional or other legal error.

In April 2005, the applicant filed fresh proceedings in the Federal Magistrates Court.  These were heard by Riethmuller FM and decided on 6 April 2005.  His Honour noted the earlier decision of McInnis FM and the fact that Crennan J, in the Federal Court, had rejected an attempt to appeal from that earlier decision.  After noting the unsatisfactory nature of a medical certificate faxed to the Federal Magistrates Court, purporting to explain why the applicant could not have participated in the hearing, Riethmuller FM refused a further application for adjournment.  He summarily dismissed the proceedings as an abuse of process, because of the earlier decision of McInnis FM.

The applicant then sought to appeal from the orders of Riethmuller FM to the Federal Court of Australia.  For that purpose, the Federal Court was constituted by Sundberg J.  His Honour found that the decision of Riethmuller FM to refuse an adjournment and to dismiss the proceedings summarily as an abuse of process were not attended by sufficient doubt to warrant reconsideration on appeal.  The application was dismissed.

Now the applicant seeks special leave to appeal to this Court.  She contends that there was a difference between the proceedings before the two magistrates and that Sundberg J had erred in holding otherwise.  However, an analysis of the two proceedings does not show any relevant difference in the essential issues.  No error of law or jurisdiction is demonstrated to cast doubt on the relevant decisions, namely those of the Federal Court and of Riethmuller FM in the Federal Magistrates Court.  An appeal to this Court does not enjoy reasonable prospects of success.  The application for special leave must therefore be dismissed.

Because the applicant is unrepresented, this application for special leave falls to be dealt with in accordance with Rule 41.10 of the High Court Rules 2004. 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 Callinan J and myself.

AT 9.32 AM THE MATTER WAS CONCLUDED