SZBUD & Anor v MIMIA

[2005] HCATrans 640

[2005] HCATrans 640

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S217 of 2005

B e t w e e n -

SZBUD

First Applicant

SZBUE

Second Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 30 AUGUST 2005, AT 9.37 AM

Copyright in the High Court of Australia

McHUGH J:   The applicants are citizens of India.  They are husband and wife.  They claim to fear persecution by reason of their Hindu religion and the husband’s support for the Congress party.  They are from the State of Gujarat, which has experienced violence between Hindus and Muslims.  In the proceedings before the Refugee Review Tribunal, only the husband made specific claims to be a refugee within the meaning of the Convention Relating to the Status of Refugees 1951.  The wife’s application thus depended upon the outcome of the husband’s application. 

The Tribunal rejected the application on the basis that the applicant husband’s claims were far-fetched and that, as a Hindu in a majority-Hindu country, he would be afforded protection by the State.  On 23 November 2004, the Federal Magistrates Court rejected an application for a review of the Tribunal’s decision on the basis that the application disclosed no reasonable cause of action.  On 15 April 2005, the Federal Court dismissed an application for leave to appeal against the Federal Magistrates’ decision, and for an adjournment of proceedings to permit the applicants to obtain money to engage counsel.  The Federal Court dismissed the application on the basis that an appeal would have little or no chance of success.  This was due in large part to the defects in the applicants’ draft notice of appeal, which did not give any particulars to substantiate the allegations of jurisdictional error that it contained.  Moreover, in light of the applicants’ failure to attend hearings before the Tribunal, the Federal Court rejected their claim that they had been denied procedural fairness.  The applicants had had several months during which they could have sought legal assistance, but they made no effort to do so.  The applicants seek special leave to appeal against the Federal Court’s decision.

The applicants’ submissions in support of the present application are affected by the same defects as were present in the Courts below.  They are in a form that has become familiar to this Court.  As they have no bearing on the facts of the applicants’ case, they are of little or no assistance to the application.  Nothing in the reasons of the Courts below, or of the Tribunal, suggests any arguable error of law.  Accordingly, the Federal Court was correct in dismissing the application, and refusing to grant an adjournment. 

Having examined the reasons of the Courts below, and the reasons of the Tribunal, it is evident that an appeal would have no prospect of success.  Accordingly, the application must be dismissed.

The application for special leave is dismissed.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order that the application is dismissed.  I publish our joint reasons.

AT 9.37 AM THE MATTER WAS CONCLUDED