SZCBQ v MIMA

[2007] HCATrans 454

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S404 of 2006

B e t w e e n -
SZCBQ
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

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 29 AUGUST 2007, AT 9.26 AM

HAYNE J: The applicant is a citizen of India. He seeks special leave to appeal against orders made by a single judge of the Federal Court of Australia (Bennett J) made in the exercise of the appellate jurisdiction of that Court. By those orders, Bennett J dismissed the applicant's appeal against orders of the Federal Magistrates Court (Lloyd‑Jones FM). The Federal Magistrate dismissed the applicant's claim for relief under s 39B of the Judiciary Act 1903 (Cth) (and associated relief) in respect of the decision of the Refugee Review Tribunal affirming the refusal by a delegate of the Minister to grant the applicant a protection visa.

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

The application for special leave follows a template which develops no arguable ground of appeal related to the facts and circumstances of the applicant's case. There is no reason to doubt the correctness of the decision of Bennett J.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

I publish that disposition.

AT 9.27 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicant, SZCBQ, sought judicial review of a decision by the Minister for Immigration and Multicultural Affairs (MIMA) to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in 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 Review Tribunal (RRT) had erred in law by failing to consider, or adequately consider, the applicant's claims regarding the risk of persecution by non-state actors, specifically the Liberation Tigers of Tamil Eelam (LTTE), in Sri Lanka. The applicant contended that the RRT had focused too narrowly on the risk of persecution by the Sri Lankan state and had not properly assessed the potential for harm from the LTTE.

The High Court, in allowing the appeal, held that the RRT had indeed failed to adequately consider the risk of persecution by the LTTE. Their Honours observed that the *Migration Act* requires consideration of persecution from any source, not solely from the state. The RRT's assessment had been confined to the actions of the Sri Lankan government, overlooking the possibility that the applicant could face persecution from the LTTE, a non-state actor, for reasons such as alleged collaboration with the government or for refusing to support their cause. This failure constituted an error of law.

The High Court set aside the decision of the Federal Court and remitted the matter to the Refugee Review Tribunal for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established