MZXCN v MIMIA

[2006] HCATrans 686

[2006] HCATrans 686

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M4 of 2006

B e t w e e n -

MZXCN

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

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 9.17 AM

Copyright in the High Court of Australia

KIRBY J:   The applicant claims that he is a national of Bangladesh, although he arrived in Australia in October 1997 on an Indian passport.  Soon after his arrival, he sought a protection visa on the basis that he was a refugee in accordance with the Refugees Convention and Protocol.  This claim was rejected by a delegate of the respondent Minister.  The applicant then sought a review of that decision by the Refugee Review Tribunal (“the Tribunal”).  The Tribunal found the applicant to be an unreliable witness.  It was not satisfied that he faced a real chance of persecution if he were returned to Bangladesh.  It confirmed the refusal of the protection visa.

The applicant then sought judicial review. His application was listed in the Federal Magistrates Court in October 2005 before Connolly FM. Although notified of the hearing, the applicant failed to attend. The application was then dismissed under the Federal Magistrates Court Rules 2001.

The applicant then purported to appeal to the Federal Court.  The Minister objected to the competency of this “appeal” on the basis that the judgment of the Federal Magistrate was interlocutory so that the applicant required leave to appeal.

In the Federal Court, North J upheld the objection to competency.  However, he concluded that, even if the applicant were to be treated as making an oral application for leave to appeal, he would refuse such an application. 

Now, the applicant has sought special leave to appeal to this Court.  His draft notice of appeal complains about the order made by North J.  However, the complaint is expressed in formulaic terms.  Reference is made to orders of Graham J and Branson J – perhaps the result of using an old precedent.  The relevant orders were made by North J.

We have looked behind the technical problems faced by the applicant by reason of the foregoing procedural history.  If there were an arguable error of law or jurisdiction apparent in the record, we would consider protecting the applicant’s substantive rights.  However, there is no such error. 

Before the Tribunal, the case turned essentially on the disbelief by the Tribunal of the applicant’s claim that he had been subjected to violence in Bangladesh because of his political opinions. 

The applicant specifically complains that the Tribunal had impermissibly referred to a later x-ray report in order to reject his claim that he had been beaten with a hockey stick.  However, all that the Tribunal did, in referring to the report, was to point out that it indicated the skull, scalp and brain were normal and thus did not advance the applicant’s claim which was otherwise disbelieved.

Neither the applicant’s draft notice of appeal, nor his written argument in this Court, succeeds in identifying any error of law or jurisdiction that would warrant the intervention of this Court.  Accordingly, the application for special leave fails on the substantive merits.  This conclusion permits the dismissal of the application without deciding whether it would, in any case, be doomed to fail because of the lack of competence of the purported “appeal” to the Federal Court.  The application is dismissed.

Because the applicant is unrepresented, this application 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. That disposition which I now publish is signed by Callinan J and myself.

AT 9.20 AM THE MATTER WAS CONCLUDED