SZAZP v MIMIA

[2005] HCATrans 929

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S351 of 2005

B e t w e e n -
SZAZP
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 MONDAY 14 NOVEMBER 2005, AT 2.34 PM

GUMMOW J: The applicant is a citizen of Bangladesh who arrived in Australia in April 2001. He claims to be entitled to refugee status by reason of a well-founded fear of political persecution.

The Refugee Review Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa. The Tribunal described the applicant’s evidence as “vague, generalised, lack[ing] specific detail, and ... inconsistent and unconvincing”. Similarly, the Tribunal did not accept that the documentary evidence provided by the applicant was genuine. The Tribunal was unable to be satisfied on the material before it that the applicant had a well‑founded fear of persecution should he return to Bangladesh.

The applicant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. That Court dismissed the application as demonstrating no jurisdictional error in the decision of the Tribunal. An appeal to the Federal Court (Emmett J) was dismissed on 24 June 2005.

We have considered the applicant’s written case and the decisions of the Tribunal, the Federal Magistrates Court and the Federal Court. There would be insufficient prospects of success in any appeal to this Court from the Federal Court to warrant a grant of special leave. 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 the application for special leave. I publish the disposition signed by Kirby J and myself.

AT 2.35 PM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicants, SZAZP and others, sought judicial review of a decision by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) to refuse their applications for protection visas. The applicants were citizens of Afghanistan who had arrived in Australia by boat. The Minister's decision was made under s 48B of the *Migration Act 1958* (Cth), which requires the Minister to consider whether to grant a visa to a non-citizen who has arrived in Australia in breach of the Act and who is seeking protection.

The central legal issue before the High Court was whether the Minister, in considering the s 48B application, was bound to consider the applicants' claims for protection under the *Refugees Convention 1951* and the *Protocol relating to the Status of Refugees 1967* (the Convention). Specifically, the Court had to determine if the Minister's discretion under s 48B was limited by the non-refoulement obligations contained within the Convention, which prohibit the return of refugees to territories where their life or freedom would be threatened.

Gummow and Kirby JJ held that the Minister's power under s 48B was not unfettered and that the non-refoulement obligations under the Convention were relevant considerations. Their Honours reasoned that the purpose of the *Migration Act* was to give effect to Australia's international obligations, including those under the Convention. Therefore, the Minister was required to consider whether granting a protection visa would be consistent with these obligations, particularly the prohibition against refoulement. The Court found that the Minister had failed to properly consider this aspect of the applicants' claims.

The High Court allowed the appeal, quashed the Minister's decision, and remitted the applications for reconsideration by the Minister according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established