MZWSJ & Anor v MIMA & Anor

[2006] HCATrans 688

[2006] HCATrans 688

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M51 of 2006

B e t w e e n -

MZWSJ

First Applicant

MZWSI

Second 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 9.23 AM

Copyright in the High Court of Australia

__________________

KIRBY J:   The applicants, mother and son, are nationals of Sri Lanka.  They arrived in Australia in August 2002 and promptly applied for protection visas under the Migration Act 1958 (Cth). A delegate of the respondent Minister refused the application. The applicants then sought review before the Refugee Review Tribunal (“the Tribunal”). In December 2003, the Tribunal affirmed the decision not to grant the protection visas sought.

The female applicant’s claim under the Refugees Convention was to the effect that she had a well-founded fear of persecution based on her membership of the Sri Lanka Muslim Congress and of involvement in politics with supporters of the Congress, one of whom was later murdered.  She thus rested the claim on the basis of an alleged well-founded fear of persecution for reasons of perceived political opinion or because of her race or religion.

On the day of the initial hearing before the Tribunal, the applicants did not appear, despite earlier indicating their intention to do so.  The Tribunal received a medical certificate indicating that the first applicant had been suffering a medical condition and was unable to attend work that day.  However, a representative of the applicants was present.  The Tribunal rescheduled the hearing and advised the applicants of the new date.  Again the applicants failed to attend.  No explanation was offered as to why they did not attend the second hearing.  In these circumstances, the Tribunal, pursuant to s 426A of the Act, proceeded to decide the application in the applicants’ absence.  By reference to country evidence and other material, the Tribunal rejected the applications stating that it was not satisfied that the female applicant had supported the political party as she claimed or that she and family members had been harassed or threatened for political associations as alleged.  The Tribunal affirmed the refusal of the protection visas.

In an application for judicial review heard by the Federal Magistrates Court, Phipps FM found no error of law or jurisdiction in the reasons of the Tribunal, given

the failure of the applicants to attend before it although notified of the rescheduled hearing date and considering the reasons given for the decision.

An appeal was then taken to the Federal Court of Australia, constituted by North J, who rejected the appeal.  North J concluded that the approach and decision of the Tribunal were open to it in the materials before it.  No error of law or jurisdiction had been demonstrated.  The decision of the Federal Magistrate was thus confirmed.

The applicants now seek special leave to appeal to this Court.  They contest the factual conclusions reached by the Tribunal and suggest that, in the absence of contrary evidence, the Tribunal should have accepted the female applicant’s written claims.  This argument was properly rejected in the courts below.  No arguable error of law or jurisdiction is apparent.  Many of the applicants’ problems appear to have arisen from the unexplained failure to attend at a rescheduled hearing arranged by the Tribunal and notified to the applicants.  Although the first applicant suggested to Phipps FM that she was unwell on the day of the rescheduled hearing, there was no evidence put to support that claim.

In the absence of a reasonably arguable case of error of law or jurisdiction, the application for special leave is 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 this application. I now publish that disposition signed by Callinan J and myself.

AT 9.26 AM THE MATTER WAS CONCLUDED