NANJ v MIMIA

[2005] HCATrans 260

[2005] HCATrans 260

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S249 of 2004

B e t w e e n -

NANJ

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 27 APRIL 2005, AT 1.49 PM

Copyright in the High Court of Australia

McHUGH J:   The applicant is a citizen of Bangladesh.  He arrived in Australia on 16 December 2000 and applied for a protection visa on 12 January 2001.  On 10 April 2001 a delegate for the Minister wrote to the applicant to inform him that his application had been refused.  On 12 March 2003, after a series of correspondence with the applicant and his agent, the Refugee Review Tribunal handed down its decision affirming the decision of the delegate to refuse the visa.  The applicant did not attend the hearing at which the decision was handed down.  The Federal Court and the Full Federal Court have heard and dismissed appeals in this matter.

The applicant claims to have a well-founded fear of persecution due to his membership of the Jatiya political party in Bangladesh.  He says that he has been the victim of assaults and threats on his life from activists of other political organisations.  He further claims that he has been falsely accused of a number of offences, and will not be accorded a fair trial if he returns to Bangladesh. 

The Tribunal found that the Jatiya party is now in a peaceful coalition with the ruling Bangladesh National Party and that the judicial system is sufficiently independent to afford the applicant a fair trial upon his return.  The applicant contended before Hely J of the Federal Court that the Tribunal’s decision was affected by jurisdictional error.  The Federal Court rejected that contention. 

The applicant also made submissions in relation to the correspondence leading to the Tribunal’s determination.  He argued that he was not informed of the date of the hearing, and was therefore denied an opportunity to present his case to the Tribunal.  Hely J found that the Tribunal had complied with the relevant requirements under the Migration Act 1958 (Cth) by sending several letters to the applicant at the address shown on the visa application form, and to his nominated agent. His Honour found that the Tribunal was entitled to proceed under section 426A of the Act. Under that section, the Tribunal is entitled to make a decision on the review of an application without taking any further action to allow or enable the applicant to appear before it, if an applicant who has been invited to attend proceedings does not attend. The Full Court of the Federal Court affirmed his Honour’s conclusion on this point.

The application for special leave to appeal to this Court is out of time and nothing in the reasons of the courts below suggests that their decisions were attended by any error of law.  Further, this is another matter in which the applicant’s summary of argument is nearly identical to summaries of argument in other applications for special leave to appeal.  The points raised in the summary do not deal in any relevant way with the findings of the Tribunal.  An appeal in this matter would have no prospect of success, and the application for special leave to appeal to this Court must be dismissed.

Under the power conferred by rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application.  I publish our joint reasons.

AT 1.49 PM THE MATTER WAS CONCLUDED