SZCJH & Ors v MIMIA & Anor

[2006] HCATrans 289

[2006] HCATrans 289

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S591 of 2005

B e t w e e n -

SZCJH

First Applicant

SZCJI

Second Applicant

SZCJJ

Third Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW ACJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 JUNE 2006, AT 9.28 AM

Copyright in the High Court of Australia

__________________

GUMMOW ACJ:   The first applicant is a citizen of Cyprus, who resides in the territory controlled by the unrecognised Turkish Republic of Northern Cyprus.  She claims to fear political persecution from the TRNC authorities because of her alleged activities as a member of a group known as the 28 February Initiative whose aim was to unite the Turkish and Greek sides and re-unify Cyprus.  The other applicants are the husband (a citizen of Jordan) and child of the first applicant.  Their claims rely upon membership of her family.

The Refugee Review Tribunal affirmed the decision of the delegate of the respondent to reject the applicants’ claims for protection visas.  The Tribunal did not accept that she had ever been involved in the 28 February Initiative or any other political activities in Northern Cyprus, or that she had been harassed because of her political opinions.  It noted that the independent country information was consistent with this finding.  The Tribunal also held that it would be open for the first applicant to relocate to the Republic of Cyprus (that is, not TRNC-held) via Australia.

The applicants’ applications for judicial review on the grounds of non‑compliance with s 425 of the Migration Act 1958 (Cth) (“the Migration Act”) and alleged bias of the presiding member were dismissed by the Federal Magistrates Court. An appeal to the Federal Court was dismissed by Sackville J who held that no jurisdictional error had been shown. Sackville J also considered an argument (raised by counsel for the respondent in performance of his duty as an officer of the court) as to whether s 424A of the Migration Act had been breached in the light of the decision of this Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009; 215 ALR 162. His Honour held that, even if a breach had occurred, the Tribunal had relied upon an independent ground, namely that the first applicant could relocate to the Republic of Cyprus.

The applicant’s written case relies upon assertions of non‑compliance with s 424A of the Migration Act and denial of procedural fairness by the Tribunal, prompted no doubt by the course of proceedings in the Federal Court. However the applicant has not pointed to any error in the reasoning of Sackville J that no jurisdictional error was made by the Tribunal. There would be insufficient prospects of success on any appeal to this Court from the Federal 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 9.31 AM THE MATTER WAS CONCLUDED