SZBJZ v MIAC

[2007] HCATrans 683

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S185 of 2007

B e t w e e n -
SZBJZ
Applicant
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 15 NOVEMBER 2007, AT 9.45 AM

GUMMOW J: The applicant, a citizen of Bangladesh, seeks special leave to appeal against the orders of a single judge of the Federal Court of Australia (Moore J) exercising the appellate jurisdiction of that Court. By those orders, Moore J dismissed the applicant's appeal against orders of the Federal Magistrates Court (Barnes FM) dismissing an application for review of a decision of the Refugee Review Tribunal. The Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa.

The applicant has previously sought judicial review of the same Tribunal decision. The Federal Magistrates Court dismissed the application, the Federal Court dismissed the appeal and the High Court refused leave to appeal on 3 August 2005.

Because the applicant is unrepresented, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

The application is without merit. The decision below was clearly correct. The application was time-barred and it was an abuse of process.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish the disposition signed by Justice Kiefel and myself.

AT 9.46 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicant, SZBJZ, sought judicial review of a decision by the Migration and Citizenship Council (MIAC) to refuse her application for a protection visa. The dispute concerned whether SZBJZ met the criteria for a protection visa under the *Migration Act 1958* (Cth). The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Refugee Convention and the *Migration Act* required the Minister to consider the applicant's subjective fear of persecution independently of the objective circumstances of her claimed persecution. Specifically, the court had to determine if the Minister was obliged to assess the applicant's subjective fear even if the objective evidence did not support the likelihood of persecution.

Gummow and Kiefel JJ held that the Minister's assessment of a protection visa application must encompass both the subjective fear of the applicant and the objective circumstances giving rise to that fear. Their Honours reasoned that the statutory framework, informed by the Refugee Convention, mandates a two-stage inquiry: first, whether the applicant has a subjective fear of persecution, and second, whether that fear is well-founded, meaning there is a real chance of persecution. The court affirmed that the Minister cannot disregard a genuine subjective fear simply because the objective evidence does not establish a high probability of persecution.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established