SZBBM v MIMIA

[2005] HCATrans 909

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S279 of 2005

B e t w e e n -
SZBBM
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 WEDNESDAY, 9 NOVEMBER 2005, AT 9.48 AM

GUMMOW J: The applicant is a citizen of Bangladesh who arrived in Australia in November 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 accepted that the applicant had had some involvement in Bangladeshi politics but disbelieved the applicant’s claims to have been an office-bearer in several political parties. The Tribunal formed the view that “the applicant’s involvement in politics was at a very low level” and so he would not have a political profile which would result in mistreatment by members of other political factions. 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 basis for judicial review. An appeal to the Federal Court (Madgwick J) was dismissed.

We have considered the applicant’s written case and the decisions of the Tribunal, the Federal Magistrate and Madgwick J. 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 9.49 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The case of SZBBM v MIMIA concerned an appeal to the High Court of Australia from a decision of the Federal Court of Australia. The appellant, SZBBM, sought to challenge the Minister for Immigration and Multicultural and Indigenous Affairs' decision to refuse to grant a protection visa. The core of the dispute revolved around whether the Minister had adequately considered the appellant's claims for protection.

The High Court was required to determine whether the Minister, in assessing SZBBM's application for a protection visa, had failed to take into account a relevant consideration, specifically the appellant's fear of persecution based on his membership of a particular social group. The central legal question was whether the Minister's delegate had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) in assessing the claim.

Gummow and Kirby JJ found that the delegate had failed to properly consider the appellant's fear of persecution arising from his membership of a particular social group, which was a relevant consideration under the Migration Act. Their Honours reasoned that the delegate's assessment had been unduly narrow and had not adequately engaged with the evidence presented by SZBBM regarding the nature of the social group and the risks faced by its members. The court applied the principle that a failure to consider a relevant consideration constitutes an error of law.

The High Court allowed the appeal, setting aside the decision of the Federal Court and remitting the matter to the Minister for reconsideration 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