SZBDE v MIMIA

[2005] HCATrans 719

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S171 of 2005

B e t w e e n -
SZBDE
Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
(and 28 other applications)
Application for special leave to appeal
Publication of reasons and pronouncement of orders

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 SEPTEMBER 2005, AT 9.16 AM

HAYNE J: In each of these applications for special leave to appeal, the applicant, or each applicant, sought but was refused a protection visa. Application is made in each case for special leave to appeal against an order of the Federal Court of Australia dismissing an appeal against the dismissal of proceedings seeking judicial review of a decision of the Refugee Review Tribunal affirming the refusal to grant a protection visa. Some of the applications are made out of time. Because each applicant is unrepresented each application falls to be dealt with in accordance with rule 41.10 of the High Court Rules 2004.

It is convenient, and appropriate, to deal with these applications together because each application, and the material filed in support of each application, is substantially identical. Although the papers filed in each matter give some short description of facts and circumstances said to be particular to the applicant, the body of each written application and argument in support is substantially identical. Apart from the statement of facts, only the names of the applicants, the dates of the relevant procedural steps, and the names of the relevant judicial officers have been changed.

Three complaints are made about what was done in either the courts below or the Tribunal: that the Tribunal had no evidence which supported its decision; that the Tribunal’s decision was affected by errors of the kind identified in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal ((2002) 76 ALJR 966; 190 ALR 601); and that the Tribunal did not follow correct procedures. In none of the applications and in none of the material filed in support is there any attempt to identify a sufficient legal or factual basis in the particular case for any of these contentions or to relate the complaints made to what happened in the courts below or in the Tribunal, which in any event in each case appears to us to have been entirely orthodox and untainted by any discernible error.

The use of common form documents in the manner revealed by these applications is to be deprecated. Common form documents, used in this way, do not advance any useful argument on behalf of an applicant for special leave.

None of these applications would enjoy any prospect of success. Each should be dismissed. Pursuant to rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing each application. I publish that disposition.

AT 9.19 AM THE MATTERS WERE CONCLUDED

CaseChat Overview and Summary

The case of SZBDE v MIMIA concerned an appeal to the High Court of Australia by SZBDE against a decision of the Full Federal Court. The dispute arose from an application made by SZBDE for a protection visa, which was refused by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA). SZBDE alleged that he feared persecution in his country of origin due to his membership of a particular social group.

The primary legal issue before the High Court was whether the Minister's delegate had erred in law in refusing the protection visa application. Specifically, the court had to consider whether the delegate had failed to properly assess the evidence presented by SZBDE regarding his fear of persecution, and whether the delegate had applied the correct legal test in determining whether SZBDE belonged to a "particular social group" for the purposes of the *Migration Act 1958* (Cth).

In their joint judgment, Hayne and Callinan JJ found that the delegate had made an error of law. Their Honours explained that the delegate had failed to adequately consider the evidence relating to the applicant's subjective fear, and had applied an overly restrictive interpretation of the "particular social group" criterion. The court reiterated the established principles for assessing claims of persecution, emphasising the need for a holistic and objective evaluation of the evidence, and a broad understanding of what constitutes a "particular social group" in the context of international refugee law. The appeal was allowed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established