MZXFU v MIMA

[2007] HCATrans 348

[2007] HCATrans 348

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M162 of 2006

B e t w e e n -

MZXFU

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL 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 WEDNESDAY, 1 AUGUST 2007, AT 9.07 AM

Copyright in the High Court of Australia

KIRBY J:   The applicant is a national of Pakistan.  He claims that he is entitled to protection as a "refugee" within the Refugees Convention and Protocol, as provided by Australian law.  He arrived in Australia in June 2005 and promptly applied for a protection visa.  A delegate of the Minister refused the application.  The applicant sought review before the Refugee Review Tribunal ("the Tribunal").  In November 2005, the Tribunal rejected the application for review.  Although, in its reasons, the Tribunal accurately and repeatedly referred to the events complained of by the applicant as occurring in Pakistan, its concluding words stated:  "Having regard to the above the Tribunal is not satisfied, on the evidence presently before it, that the applicant has a well-founded fear of persecution in India within the meaning of the Convention" (emphasis added).

Essentially, the applicant's asserted fear derives from the suggestion that, in Pakistan, he was alleged to be an Ahmadi Muslim convert.  The Tribunal accepted that there was discrimination in Pakistan against the Ahmadi minority and that some difficulties arose in securing police protection for Ahmadi Muslims from antagonistic members of the majority community.  Nevertheless, the Tribunal did not accept that the applicant had suffered persecution from religious extremists for the reasons that he claimed nor that he would be unable to secure protection in Pakistan from police against the acts of religious extremists. 

The applicant sought judicial review in the Federal Magistrates Court.  In June 2006, Riethmuller FM dismissed his application.  In so far as it was based on the mistaken reference to India, the Federal Magistrate concluded that, read in context, this was no more than a typographical error.  It did not signify jurisdictional error on the part of the Tribunal.  Nor were the other propounded grounds for review persuasive.

The applicant sought to appeal to the Federal Court of Australia.  He became out of time and thus required leave to appeal for this purpose.  The appellate jurisdiction of the Federal Court was exercised by Sundberg J.  In November 2006, his Honour concluded that the Tribunal's reasons demonstrated that it had performed its task correctly; that no new evidence should be received; and that the application for review did not enjoy reasonable prospects of success.   Accordingly, the extension of time sought was refused, with the result that the attempt to appeal to the Federal Court failed.

In this Court, the applicant makes various complaints about the proceedings below.  At their heart is the Tribunal's reference to his claim as relating to India rather than Pakistan.  If there were any reasonable possibility that the Tribunal had been confused or mistaken in this respect, it might amount to jurisdictional error.  However, for the convincing reasons given below, the repeated references to Pakistan in the Tribunal's reasons indicate that the reference to India was no more than a typographical mistake.  It does not constitute or evidence jurisdictional error.  None of the other matters relied on by the applicant would warrant consideration of his case by this Court.

In these circumstances the application fails and it is not necessary to require, as it otherwise would, that steps be taken to join the Tribunal as a party to the proceedings.

Because the applicant is unrepresented, his 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 and I publish the disposition signed by Justice Callinan and myself.

AT 9.11 AM THE MATTER WAS CONCLUDED