SZBFD v MIMIA

[2006] HCATrans 101

[2006] HCATrans 101

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S389 of 2005

B e t w e e n -

SZBFD

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
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 MARCH 2006, AT 9.23 AM

Copyright in the High Court of Australia

KIRBY J:  

Background to the application

The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 7 June 2002.  On 5 July 2002 he applied for a protection visa which was refused by a delegate of the respondent Minister on 12 July 2002.  In his application for a protection visa, the applicant claimed that he feared persecution by virtue of his membership of the Awami League.  He claimed that his political involvement began as a student when he joined the Chattra League, the student wing of the Awami League.  He further claimed that when the BNP was returned to government in 2001, he became the target of persecution on political grounds.  He claimed that he went “underground” for the seven months preceding his departure from Bangladesh and that he had learned that two false cases had been brought against him and that warrants for his arrest had been issued.

In the course of the hearing before the Refugee Review Tribunal (“RRT”) it was put to the applicant that he had lodged documents in support of a business visa to Australia.  The applicant confirmed that these documents were false and said that he had lodged them in order to escape the harassment he was experiencing.  The RRT expressed significant doubts regarding the applicant’s claim of membership of the Awami League.  It found that the applicant was not a credible witness.  It did not accept that he was involved in any political activity; held any political positions; or had a profile that would have brought him to the adverse attention of the BNP or authorities in Bangladesh. 

The applicant applied to the Federal Magistrates Court for judicial review of the RRT’s decision. He was represented before that Court. He claimed that the rules of natural justice had been breached, in that the RRT failed to put to the applicant its doubts about the credibility of his claims. In particular, the RRT made a finding that there were no false charges registered against the applicant but had failed to inform him that it did not accept his claim. The Federal Magistrate noted that under section 425 of the Migration Act 1958 (Cth), the RRT would not comply with the obligation to give an applicant an opportunity to be heard unless it explained, clearly and unambiguously, the reasons why it felt unable to make its decision on the basis of the information provided. However, it was also noted that the RRT was not obliged to put an applicant on notice of every detail of his claims that the Tribunal was minded to reject.

Prior to the hearing before the Federal Magistrate, it had been ordered that the applicant file and serve with the amended application any evidence upon which he proposed to rely.  The applicant did not file any evidence in support of his application.  In particular, he did not file a transcript of the hearing before the RRT.  The Magistrate concluded that, in the absence of the transcript, it was not open to find that the matters asserted by the applicant were not raised with the applicant during the course of the hearing before the RRT.  No legal or jurisdictional error had therefore been shown in the decision of the RRT.

On appeal to the Federal Court, where the applicant was unrepresented, he claimed that he had been deprived of procedural fairness, in that he had not been provided with an opportunity to comment on the Tribunal’s doubts, and that the Tribunal had not adequately dealt with his claims of having false charges lodged against him.  Allsop J found as correct the approach taken by the Federal Magistrate, which required the applicant to satisfy him, on the available evidence, that there was a failure to put to him matters asserted by the applicant sufficiently important to evoke principles of natural justice, and to demonstrate that they were not raised in the RRT.  His Honour was not prepared to conclude that the Federal Magistrate had committed any relevant error in refusing to conclude that there was a failure to accord procedural fairness.

The applicant’s draft notice of appeal to this Court is formulaic in content.  It states that the Federal Court erred in failing to find an error of law; that the RRT’s decision was affected by the High Court decision in Muin; and that the RRT had not followed the proper procedures as prescribed by the Migration Act.  The applicant’s written case also appears to be somewhat formulaic in content.  No particulars of any breach of natural justice are provided.  Much of the written case is devoted to reiterating the applicant’s claims of persecution.  The applicant’s lengthy discussion of Muin appears to have been borrowed from another earlier application.  It does not bear any apparent relationship to the facts of the instant case.

Disposition of the application

The application raises no question of law that would warrant a grant of special leave to appeal.  The applicant is unable to point to any instance of a breach of procedural fairness, or any other error of law that would amount to a jurisdictional error.  The applicant does not show how his case was affected by this Court’s decision in Muin.  Nor has the applicant identified any prescribed procedure that was not complied with by the Tribunal.  No error of law or jurisdiction is apparent in the decision either of the Federal Magistrate or the Federal Court.

In these circumstances there would be no prospects of success in any appeal to this Court from the Federal Court.  The application therefore fails.

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 Heydon J and myself.

AT 9.29 AM THE MATTER WAS CONCLUDED