SZAYF v MIMIA

[2005] HCATrans 695

[2005] HCATrans 695

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S237 of 2005

B e t w e e n -

SZAYF

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 SEPTEMBER 2005, AT 9.41 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant is a citizen of India.  He arrived in Australia in March 2001, suffering from tuberculosis, and claims to be entitled to refugee status by reason of a well-founded fear of persecution at the hands of Hindus in his village in Rajasthan on the ground that he is Muslim.  In particular, he claims that threats had been made against him following his appearance in court as a witness in a case involving a number of Hindus implicated in the murder of two Muslims.

The Refugee Review Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa.  Despite the applicant’s condition, the Tribunal proceeded with a hearing on 3 April 2003, during which it monitored the applicant’s answers in order to determine whether he was hampered by health or language difficulties.  The Tribunal was not satisfied, even upon consideration of the applicant’s illness, that he was not able to avoid mistreatment by the Hindus in his village by relocating to either another part of Rajasthan or elsewhere in India.

The applicant sought review of the Tribunal’s decision in the Federal Magistrates Court.  He submitted that there had been a denial of procedural fairness in that the Tribunal had failed to consider the impact of his illness upon his capacity to give evidence before the Tribunal.  He also criticised the failure of the Tribunal to afford him an interpreter and its reliance upon independent country information.  The Court dismissed his application on the basis that the applicant had not shown jurisdictional error in the Tribunal’s decision. 

The applicant then sought to appeal to the Federal Court (Sackville J).  The appeal was dismissed on the grounds that the applicant had not appeared at the first directions hearing relating to the appeal.  An application to set aside this order was subsequently also dismissed by Sackville J.  His Honour saw nothing to suggest any error in the decision of the Federal Magistrates Court.

We have reviewed the applicant’s written case and the decisions of the Tribunal, the Federal Magistrates Court and the Federal Court.  There are insufficient prospects of success in any appeal to this Court.  Accordingly, special leave to appeal is refused. 

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

AT 9.44 AM THE MATTER WAS CONCLUDED