SZCVD v MIMA & Anor

[2007] HCATrans 355

[2007] HCATrans 355

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S421 of 2006

B e t w e e n -

SZCVD

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

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 AUGUST 2007, AT 9.29 AM

Copyright in the High Court of Australia

KIRBY J:   The applicant is a national of India.  He arrived in Australia in May 2003 and applied for a protection visa, claiming to be a "refugee" within the Refugees Convention and Protocol and thus entitled to protection under Australian law.  The applicant's application was refused by the delegate of the Minister.  He thereupon sought review by the Refugee Review Tribunal ("the Tribunal").

The applicant's case was based on his alleged participation in politics in India, ultimately as a member of the Trinamool Congress ("the TMC").  He claimed that when the Communist Party of India (Marxist) won government in the State in which he lived, West Bengal, he became a target of hoodlum activity which was not properly redressed following his complaints to the police.

The Tribunal found that the applicant came from a well-to-do family but presented a hesitant and incomplete account of his employment and financial situation and earlier overseas travel.  The Tribunal concluded that the applicant had exaggerated the extent of his participation in political activity.  This explained the vagueness and lack of specificity of his evidence in that regard.  Whilst the Tribunal was prepared to find an association with the TMC Youth Congress, it concluded, by reason of lack of documentation and firm evidence, that the applicant's connexion with the TMC had been relatively informal.  It rejected the assertion of prominence occasioning the alleged harassment by supporters of the Communist Party government.

Additionally, on the basis of country information, the Tribunal did not accept, as a generality, that Communist cadres were supported by the Government of West Bengal in the area where the applicant had lived and allegedly been politically active.  The Tribunal did not accept the applicant's claim that he was subject to outstanding charges fabricated by political opponents.  From his planned, orderly departure from India, the Tribunal concluded that the applicant had not fled because of any fear of persecution from his country of nationality.  Accordingly, it affirmed the decision of the delegate.

The applicant applied to the Federal Magistrates Court for judicial review. His application was heard in May 2006 by Driver FM. Substantially, the hearing was addressed to an alleged breach of the requirements of procedural fairness. The Federal Magistrate was unconvinced that there had been any breach of s 424A of the Migration Act 1958 (Cth) ("the Act"). He therefore dismissed the application.

The applicant then appealed to the Federal Court of Australia. The appellate jurisdiction of that Court was exercised by Conti J. His Honour rejected the claims of procedural unfairness in the Tribunal and of non‑compliance with ss 424A(1) and 425 of the Act. He dismissed the appeal.

In his application to this Court, the applicant persists with his claim that he was not accorded procedural fairness. In particular, the applicant asserts that the Tribunal should have raised various concerns with him before rejecting his claim. He presses the alleged breach of s 424A of the Act.

We are unconvinced that any error has been shown in the approach to judicial review by the Federal Court or the Federal Magistrates Court or in the conclusions reached in those courts.  An appeal to this Court would not enjoy such prospects of success as to warrant a grant of special leave.  The complaint of the applicant appears to boil down to one of an alleged failure on the part of the Tribunal to disclose its reasoning process.  That is not a course that was required, certainly in the circumstances of this case.  Even if there were some imperfections in the references to the evidence before the Tribunal, they were of the most slight and immaterial kind.  In the circumstances shown by the record, the applicant’s case is doomed to failure.  The application must therefore be refused.

Because the applicant is unrepresented, his application has been dealt with in accordance with Rule 41.10 of the High Court Rules.  Pursuant to Rule 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application and I publish the disposition signed by Justice Callinan and myself.

AT 9.33 AM THE MATTER WAS CONCLUDED