SZDEM & Ors v MIMIA

[2005] HCATrans 470

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S119 of 2005

B e t w e e n -
SZDEM
First Applicant
SZDEN
Second Applicant
SZDEO
Third Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 1 AUGUST 2005, AT 3.05 PM

__________________

GUMMOW J: The applicants are citizens of India. The first applicant claims to be entitled to refugee status by reason of a well-founded fear of persecution from members of a terrorist organisation seeking to intimidate him into assisting them. The remaining applicants’ visa applications were dependent upon that of the first applicant.

The Refugee Review Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the first applicant a protection visa. The Tribunal rejected the first applicant’s key factual claims due to internal inconsistencies and due to conflict with independent country information. The Tribunal was unable to be satisfied on the material before it that the first applicant had a well-founded fear of persecution should he return to India.

The applicant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. As the amended application had failed sufficiently to particularise the applicant’s claims of jurisdictional error on the part of the Tribunal, the Federal Magistrate ordered the applicant to file a further amended application within a specified time. The Federal Magistrate further ordered that if that order was not complied with the respondent Minister was entitled to move the Court for an order in Chambers dismissing the application for non-compliance without further reference to the applicant. The applicant failed to file a further amended application within the specified time and on the motion of the respondent the proceedings were dismissed pursuant to the Federal Magistrates Court Rules. An application was made to the Federal Court for an extension of time within which to apply for leave to appeal. The applicant sought to explain the delay but the application was dismissed by Stone J as having, in any event, virtually no chance of success.

The written case filed by the applicant appears to be a pro forma document which raises no grounds for the grant of special leave. In these circumstances an appeal to this Court from the orders of the Federal Court would have no prospect of success. Accordingly, special leave to appeal 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 Kirby J and myself.

AT 3.08 PM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicants, SZDEM and others, sought judicial review of decisions made by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) concerning their claims for protection visas. The dispute centred on whether the Minister had properly exercised his discretion under section 48B of the *Migration Act 1958* (Cth) to allow the applicants to lodge applications for protection visas, notwithstanding that they had previously had protection visa applications refused. The matter came before the High Court of Australia.

The primary legal issue before the High Court was whether the Minister's decision not to allow the applicants to make further applications for protection visas was vitiated by an error of law. Specifically, the court had to determine whether the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when exercising his discretion under section 48B. This involved an examination of the scope of the Minister's power and the nature of the duty owed to applicants in such circumstances.

Gummow and Kirby JJ found that the Minister's decision-making process had failed to adequately consider the applicants' circumstances and the potential for them to be subjected to persecution if returned to their country of origin. Their Honours held that the Minister's discretion under section 48B was not unfettered and required a genuine consideration of the merits of the applicants' claims for protection. The court applied principles of administrative law, emphasizing that a failure to consider relevant factors or the consideration of irrelevant factors could render a decision legally invalid. The court concluded that the Minister had erred in law by failing to properly exercise his discretion.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established