SZASP v MIMIA

[2006] HCATrans 403

[2006] HCATrans 403

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S553 of 2005

B e t w e e n -

SZASP

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, 3 AUGUST 2006, AT 1.35 PM

Copyright in the High Court of Australia

KIRBY J:  

Background

The applicant, a national of Bangladesh, arrived in Australia in October 1997.  In the next month, he applied for a protection visa as a refugee, pursuant to the Migration Act 1958 (Cth). In April 1998, a delegate of the Minister refused the application. The applicant then applied for reconsideration of his claim by the Refugee Review Tribunal (“the Tribunal”). On 1 November 2000, the Tribunal affirmed the primary decision.

This led to an application to the Federal Magistrates Court for judicial review of the Tribunal’s decision.  That application was heard and decided by Federal Magistrate Lloyd-Jones, whose decision was given in October 2004.  The reason for the long delay in the bringing, and finalisation, of the application is undisclosed.  Ultimately, the application was dismissed.  The Federal Magistrate was satisfied that the essential findings of the Tribunal were open to it on the materials before it and that, when the decision was read in its entirety, there were no grounds sufficient to establish the applicant’s contention that a jurisdictional or other legal error had occurred.

The applicant then appealed to the Federal Court of Australia.  The appellate jurisdiction of that Court was exercised by Conti J.  On 28 February 2005, his Honour determined the two grounds of appeal advanced before that Court.  The first had suggested that the Tribunal had erred in the understanding of its jurisdiction, in so far as it had suggested that threats to the applicant had to be disabling or life threatening in order to constitute “persecution”.  Secondly, the Federal Magistrate was said to have erred in holding that the applicant did not have a well founded fear of persecution in the future, should he return to Bangladesh, because he had not been persecuted in the past.  Conti J rejected both of those arguments.  Specifically, his Honour dismissed the suggestion that the Tribunal had foreclosed reasonable speculation by ignoring hypothetical future events that might confront the applicant were he to return to Bangladesh.

The applicant’s case, at the level of the primary decisions, arose out of his suggested involvement in the student wing of a political party (Jatiyo) in the early 1990s which, he said, had resulted in retaliation against him by a group of hooligans supporting the Awami League.  Much of the applicant’s complaint concerning the reasoning of the Tribunal was addressed to a comment that the reason for the principal attack on the applicant had not been his “political opinion, but … a retaliation against [his] violent actions against the attackers or their associates in the past”.  The applicant complained that this speculation had diverted the Tribunal from the correct enquiry mandated by the Act.  The Federal Magistrate and Conti J were unconvinced.

Disposition

We have carefully considered the applicant’s written case and the successive reasons of the Tribunal, the Federal Magistrates Court and the Federal Court.  We are unconvinced that there would be reasonable prospects of success were special leave granted. 

Essentially, the applicant’s complaints amount to the kind of fine‑combing analysis of the Tribunal’s reasons that this Court has discouraged.  See, for example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271‑272; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 599. Although speculation as to the motivation of the attack on the applicant was not really necessary in this case, there was no error of law or of jurisdiction in disclosing that possible hypothesis. It was arguably relevant to assessing the existence of a relevant “fear” and the possibility that, so long after the violence had occurred against the applicant (which the Tribunal was prepared to accept), similar events would arise if he were now to be returned to Bangladesh.

The Tribunal ultimately found that it was unlikely, given the considerable lapse of time, that the applicant would have remained of interest to political opponents.  It concluded that, in the early 1990s, the applicant had only a low profile in politics in Bangladesh.  Even more so now.  In the light of this conclusion (which was open to the Tribunal) it was equally available to the Tribunal to decide that the necessary foundation for the establishment of refugee status was missing.  The adverse assessment of the applicant’s credibility makes this a most unpromising case, factually, for the intervention of this Court.

It follows that the application for special leave to appeal should be refused.

Orders

In this Court, the applicant requires an extension of time having taken nine months within which to file his application.  The applicant has advanced reasons of financial hardship as well as family reasons for this delay.  We are prepared, in the special circumstances, to grant the extension of time sought. 

However, pursuant to r 41.10.5 of the High Court Rules, we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish that disposition signed by Callinan J and myself.

AT 1.40 PM THE MATTER WAS CONCLUDED