SZBJQ v MIMA & Anor

[2007] HCATrans 33

[2007] HCATrans 033

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S239 of 2006

B e t w e e n -

SZBJQ

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 FEBRUARY 2007, AT 9.22 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant is a citizen of Bangladesh who claims to fear political persecution as a member of the Jatiya Party.  On 9 July 2003, the Refugee Review Tribunal affirmed the decision of a delegate of the respondent to refuse the applicant’s application for a protection visa.   The Tribunal found that the applicant was not a credible or reliable witness, did not accept that he was ever a member of the Jatiya Party, and concluded that he had fabricated his claim.

An application for judicial review by the Federal Magistrates Court was dismissed by Lloyd-Jones FM as incompetent. This was the applicant’s second application for review; a previous application had failed before Driver FM, and an appeal to the Federal Court (Hely J) and an application for special leave to appeal to this Court (Hayne and Crennan JJ) had also been dismissed. Lloyd-Jones FM dealt with the applicant’s second application on the basis that it was incompetent due to the operation of the transitional time limits imposed by Item 42 of Pt 2 of Sched 1 to the Migration Litigation Reform Act 2005 (Cth) (“the 2005 Reform Act”). The effect of these provisions was that the Federal Magistrates Court had no jurisdiction to review decisions made before the commencement of the 2005 Reform Act where the application for review was filed more than 84 days after the commencement of that Act on 1 December 2005, namely 23 February 2006. Lloyd-Jones FM held that, since the applicant’s second application was filed on 24 February 2006, it was incompetent. Lloyd‑Jones FM also held that the applicant’s case would in any event fail on the merits.

An application for leave to appeal to the Federal Court was dismissed by Moore J, who accepted the finding that the application was incompetent by reason of the transitional time provisions, and held that “any appeal is doomed to fail”.

The application for special leave to appeal seeks to overcome the manifestly credibility-based findings of the Tribunal that the applicant was not a member of the Jatiya Party.  It does not identify any error of law in the conclusion of Lloyd-Jones FM and Moore J that the application for judicial review was incompetent by reason of being brought outside the time limits imposed by the 2005 Reform Act.  The application was in any event an abuse of process, and was bound to fail on that ground also.  There are no prospects of success on any appeal to this Court.  Special leave 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 Heydon J and myself.

AT 9.24 AM THE MATTER WAS CONCLUDED