MZXFW & Ors v MIMA & Anor

[2007] HCATrans 369

[2007] HCATrans 369

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M157 of 2006

B e t w e e n -

MZXFW

First Applicant

MZXFX

Second Applicant

MZXFY

Third Applicant

and

THE 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

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 2 AUGUST 2007, AT 9.18 AM

Copyright in the High Court of Australia

__________________

GUMMOW J:   The applicants are a family of Sri Lankan citizens. The applicant husband claimed to fear persecution on account of his political beliefs arising out of his support of the UNP and as a result of false allegations of involvement with the LTTE.  On 25 July 2003, the Refugee Review Tribunal affirmed the decision of a delegate of the respondent minister to refuse the applicants' application for a protection visa.  The applicants then commenced proceedings in the original jurisdiction of this Court for review of that decision, and on 23 February 2004 the matter was remitted to the Federal Court, which in turn transferred the matter to the Federal Magistrates Court.  By consent, on 5 May 2005 McInnis FM set aside the Tribunal's order and remitted the matter to a differently‑constituted Tribunal.

On 21 November 2005, the second Tribunal affirmed the delegate's decision not to grant protection visas to the applicants. A number of inconsistencies in the husband's evidence led the Tribunal to write to him, purportedly pursuant to s 424A of the Migration Act 1958 (Cth), inviting him to comment on those inconsistencies. The applicant's adviser responded in writing on his behalf. Taking that response into account, the Tribunal accepted that the applicant husband was a supporter of the UNP, and that political violence existed in Sri Lanka. However, the Tribunal found that the applicant husband's specific claims lacked credibility, and did not accept that the applicants faced a real chance of persecution for a Convention reason.

An application for judicial review of the Tribunal's decision was dismissed by Hartnett FM on 9 June 2006. Hartnett FM rejected the applicants' contention that the Tribunal had failed to consider their claims and that it failed to apply s 424A correctly.

The applicants appealed to the Federal Court. In addition to the matters pressed before the Federal Magistrate, the applicants alleged that because further doubts remained in the Tribunal's mind after their response to the letter pursuant to s 424A, the Tribunal was then obliged to seek further clarification from them. Ryan J correctly rejected the applicants' contentions and dismissed the appeal on 13 November 2006.

The application for special leave to appeal does not advance any question of law that would justify the intervention of this Court. In particular, the applicants' contentions about s 424A are foreclosed by the decision of this Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26. There are no prospects of success on any appeal to this Court. Special leave is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave and I publish the disposition signed by Justice Heydon and myself.

AT 9.21 AM THE MATTER WAS CONCLUDED