SZCOT v MIMIA

[2005] HCATrans 630

[2005] HCATrans 630

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S465 of 2004

B e t w e e n -

SZCOT

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 MONDAY, 29 AUGUST 2005, AT 9.35 AM

Copyright in the High Court of Australia

McHUGH J:   The applicant was born in Burma but has resided in Bangladesh since the age of six or seven.  It is not clear that he ever had formal resident status in Bangladesh.  It appears that he is essentially stateless.  He claims to fear persecution if he returns to Burma, on the basis that his physical appearance identifies him as a member of a minority group, and because he speaks Bengali with an accent. 

The applicant arrived in Australia on 3 February 2001 and lodged an application for a protection visa on 16 March 2001.  On 20 January 2003, the Refugee Review Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.  On 16 June 2003, the Federal Court dismissed an appeal against that decision.  There was no appeal from that decision of the Federal Court.  Instead, the applicant commenced fresh proceedings in the Federal Magistrates Court.  On 13 September 2004, Driver FM determined that the appeal was incompetent.  His Honour also held that if he was wrong in that decision, he would nevertheless have dismissed the appeal as an abuse of process having regard to the earlier Federal Court proceedings.  The learned Magistrate considered that Wilcox J had had regard to all the material before the Tribunal and was mindful that the applicant was unrepresented.  There was nothing to suggest that any grounds might have been raised before the Federal Magistrates Court that had not been considered by Wilcox J.  The applicant applied for leave to appeal against the orders of Driver FM.  The Full Federal Court refused leave on the grounds that there was no error in the reasons of the learned Magistrate.  The applicant now seeks special leave to appeal against that decision of the Full Federal Court. 

The Tribunal found the applicant to be a sincere and credible person.  It also found that he is in the unenviable position of being essentially stateless, and that Australia may face difficulties in having either Burma or Bangladesh accept him.  This might result in humanitarian concerns as to the future treatment of the applicant.  However, in light of the Tribunal’s rejection of his claim to be a refugee within the terms of the Convention Relating to the Status of Refugees 1951, there is no basis for this Court to intervene in his case.  This is because the Tribunal is entitled to draw its own conclusions on the facts with which it is presented.  In the absence of an error of law, this Court may not disturb those conclusions.  We note that the Full Federal Court and the Federal Magistrates Court agreed that “[c]onsideration of the applicant’s circumstances on humanitarian grounds is a matter solely within the Minister’s discretion”:  SZDMF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 381 (unreported) at [3]. As this application raises no question of law, it must be refused.

The application for special leave to appeal 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 9.35 AM THE MATTER WAS CONCLUDED