MZWXH & Anor v MIMA & Anor

[2007] HCATrans 214

[2007] HCATrans 214

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M124 of 2006

B e t w e e n -

MZWXH

First Applicant

MZWXI

Second Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL 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 TUESDAY, 22 MAY 2007 AT 9.38 AM

Copyright in the High Court of Australia

KIRBY J:   The applicants are husband and wife and nationals of Thailand.  They claim to be entitled to protection as "refugees" within the Refugees Convention and Protocol to which Australia is a party.  That convention is given effect in Australia by the Migration Act 1958 (Cth) ("the Act"). The wife's claim has at all times been treated as dependent on that of her husband. No separate ground is relied on in her case; nor is it suggested, in the application to this Court, that she was not properly served with process, an issue that figured below.

The applicants arrived in Australia in May 2004 and applied for a protection visa shortly thereafter.  In June 2004, a delegate of the Minister responsible refused the application.  There followed an unsuccessful application for review to the Refugee Review Tribunal ("the Tribunal"); an application for judicial review to the Federal Magistrates Court; and an appeal from the adverse decision of that Court to the Full Court of the Federal Court, whose appellate jurisdiction was exercised by Rares J.  His Honour dismissed the appeal on 4 September 2006.

It would be sufficient to say that we find no error in his Honour's conclusion that the applicants have failed to demonstrate an arguable case that the Tribunal made any jurisdictional or other legal error in arriving at the conclusion that it reached.  However, because the grounds of the application to this Court are clear and accurate, and (whilst signed by the applicant husband personally) bear evidence of having been drafted by, or with the assistance of, someone who advised the applicants of the limited basis for judicial intervention, we would add only this.

The applicants complained that the Tribunal, and the courts below "did not take a very relevant consideration into account" and thus fell into jurisdictional error.  The relevant information was "the country information document concerning poll related violence and the way election campaigns are organised in Thailand".

There is no basis in fact for this assertion.  The Tribunal invited the applicants to appear before it when it found that it was unable to make a favourable decision on the materials presented.  The applicants failed to take advantage of that invitation and to give oral evidence.  They likewise failed to appear in the Federal Court.  In the absence of oral evidence, which the Tribunal invited, it was open to the Tribunal to reach the conclusion that it did.  As the Tribunal pointed out, the election in which the applicants contend there was the violence that occasioned their fear on a Convention ground occurred three years before the applicants left Thailand for Australia.  The Tribunal's conclusion "on the limited information available to it" that the applicant husband faced no real chance of persecution due to political opinion or for any other Convention reason, was therefore reached without jurisdictional error.  In these circumstances, dismissal of the applications for judicial review was clearly open to the courts below.  There is no prospect that this Court would reach a different conclusion on the basis of the record.  The application for special leave should therefore be dismissed.

Because the applicant is unrepresented, the application has been dealt with in accordance with Rule 41.10 of the High Court Rules.  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 Justice Callinan and myself.

AT 9.41 AM THE MATTER WAS CONCLUDED