SZBZF v MIMA

[2006] HCATrans 642

[2006] HCATrans 642

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S153 of 2006

B e t w e e n -

SZBZF

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 WEDNESDAY, 15 NOVEMBER 2006, AT 9.38 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant is a citizen of India and a Muslim who claims to fear persecution on the basis of general discrimination against Muslims and his activity in a pro‑Muslim political party, the Samajwadi (Socialist) Party, at the hands of members of the Hindu nationalist Shiv Sena party in the Worli district of Mumbai.  The decision of a delegate of the first respondent to refuse his application for a protection visa was affirmed by the Refugee Review Tribunal (“the Tribunal”).  The Tribunal found that his concerns of discrimination were “localised” and “not at such a level of harm as to constitute persecution”.  It also found that it would be open to the applicant to relocate within Mumbai or elsewhere in India.

An application for judicial review to the Federal Magistrates Court was dismissed by Barnes FM in September 2004.  An appeal to the Federal Court (Sackville J) and an application for special leave to appeal to this Court (McHugh and Heydon JJ) were dismissed respectively in November 2004 and August 2005.  The present proceedings arise from the applicant’s second application for judicial review in the Federal Magistrates Court, which the respondent Minister moved be struck out as an abuse of process and as res judicata.  Driver FM dismissed the application as incompetent because the subject of it had already been found to be a privative clause decision in the previous proceedings.  His Honour added that this order reflected the vexatious element in the application, and also the fact that it was filed out of time.  An application for leave to appeal to the Federal Court (Finn J) was dismissed.

The application for special leave to appeal does not deal with the basis upon which the applicant failed in the courts below.  In the Federal Court, Finn J correctly held that whether the application was looked at as a question of jurisdiction, of abuse of process, or of res judicata or estoppel, any appeal was “doomed to failure”.  There would be no prospect 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 9.41 AM THE MATTER WAS CONCLUDED