SZDLQ v MIMA & Anor

[2007] HCATrans 136

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S290 of 2006

B e t w e e n -
SZDLQ
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 WEDNESDAY, 18 APRIL 2007, AT 9.48 AM

HAYNE J: The applicant, a citizen of India, seeks special leave to appeal against the orders of a single judge of the Federal Court of Australia (Black CJ) exercising the appellate jurisdiction of that Court. By those orders, Black CJ dismissed the applicant's appeal against orders of the Federal Magistrates Court (Nicholls FM).

In 2003 the applicant applied for a protection visa, which was refused by a delegate of the first respondent. The Refugee Review Tribunal affirmed the delegate's decision, and Smith FM dismissed an application for review of the Tribunal's decision. In the Federal Court, Conti J dismissed an appeal against those orders of Smith FM, and an application in this Court for special leave to appeal against the decision of Conti J was refused. The applicant then commenced fresh proceedings in the Federal Magistrates Court, seeking review of the same Tribunal decision. On a motion by the first respondent, Nicholls FM dismissed the application for review on the basis that it had no reasonable prospects of success and was an abuse of process.

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 are formulaic and develop no real argument in support of the application. There is no reason to doubt the correctness of the orders made by Nicholls FM or of the orders made by Black CJ.

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 9.50 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicants, SZDLQ and another, sought judicial review of decisions made by the Minister for Immigration and Multicultural Affairs (MIMA) and the second respondent. The dispute concerned the lawfulness of the Minister's decision to refuse to grant the applicants a protection visa. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Minister's decision to refuse the protection visa applications was vitiated by jurisdictional error. Specifically, the Court was required to consider whether the Minister had failed to exercise the power conferred by s 48B of the *Migration Act 1958* (Cth) in accordance with the law, and whether the Minister's delegate had failed to consider relevant considerations or taken irrelevant considerations into account when making the decision.

In their reasoning, Hayne and Crennan JJ applied principles of administrative law concerning the exercise of statutory powers. Their Honours emphasised that a failure to consider a mandatory consideration or the consideration of an irrelevant factor can constitute a jurisdictional error, rendering a decision invalid. The Court examined the evidence before the delegate and the reasons provided for the refusal to determine if the delegate had properly understood and applied the relevant provisions of the *Migration Act* and associated regulations, particularly in relation to the assessment of protection claims.

The High Court found that the delegate had made a jurisdictional error in refusing the protection visa applications. Consequently, the Court made orders quashing the delegate's decision and remitting the applications to the Minister for reconsideration according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established