SZCKD v MIMA

[2006] HCATrans 608

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S143 of 2006

B e t w e e n -
SZCKD
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 THURSDAY, 9 NOVEMBER 2006, AT 9.28 AM

HAYNE 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 (Graham J) exercising the appellate jurisdiction of that Court. By those orders, Graham J dismissed the applicant’s appeal against orders of the Federal Magistrates Court dismissing an application for relief under s 39B of the Judiciary Act 1903 (Cth), in respect of a decision of the Refugee Review Tribunal affirming the decision of a delegate of the Minister to refuse 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 applicant’s written submissions raise no question of principle which would conveniently fall for consideration if special leave to appeal were to be granted. Any appeal would have insufficient prospects of success.

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 9.29 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicants, SZCKD and others, sought judicial review of decisions made by the Minister for Immigration and Multicultural Affairs (MIMA) to refuse their applications for protection visas. The applicants were citizens of Afghanistan and had arrived in Australia by boat. The primary dispute concerned the lawfulness of the Minister's decisions, which were made under s 48B of the *Migration Act 1958* (Cth).

The central legal issue before the High Court was whether the Minister, when considering an application for a protection visa under s 48B, was required to consider the applicant's claims for protection under the *Refugees Convention and the 1967 Protocol relating to the Status of Refugees* (the Convention) in addition to the criteria set out in s 48B itself. Specifically, the Court had to determine if s 48B imposed a duty on the Minister to consider whether the applicant would be a refugee within the meaning of the Convention, even if the applicant did not meet the criteria for a protection visa under s 48B.

The High Court held that s 48B of the *Migration Act* did not impose a duty on the Minister to consider whether an applicant would be a refugee within the meaning of the Convention. Their Honours, Hayne and Crennan JJ, reasoned that the language of s 48B was clear and did not suggest that the Minister was required to undertake a separate assessment of refugee status under the Convention. Instead, the section provided a specific pathway for certain non-citizens to apply for a protection visa, and the Minister's assessment was confined to the criteria prescribed by that section. The Court affirmed that the Minister's discretion under s 48B was to be exercised according to the terms of the provision, and not by reference to obligations under international law that were not expressly incorporated into the statutory scheme.

The appeals were dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established