SZDQO v MIMIA

[2005] HCATrans 1016

[2005] HCATrans 1016

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S384 of 2005

B e t w e e n -

SZDQO

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
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 15 DECEMBER 2005, AT 9.27 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant is a citizen of India.  His claim to fear persecution is based upon problems related to family land which had been abandoned 20 or 40 years ago.  A recent attempt by the applicant’s family to reoccupy the land met with resistance by the farmers who had occupied the land in the interim.  The farmers had the backing of the Congress Party and the Farmers Union of India.  The applicant claimed that subsequent action by the family met with resistance by local officials and politicians including by the arrest and torture of the applicant.

The applicant’s claim for a protection visa was rejected by the Refugee Review Tribunal. The Tribunal was not satisfied on the evidence before it that the applicant’s fear of harm had anything to do with the political opinion of those involved, but was exclusively related to the possession of land. The applicant did not attend a hearing before the Tribunal due to illness. The Tribunal rescheduled the hearing, pursuant to s 426A(2) of the Migration Act 1958 (Cth), to a date 10 days subsequent, but the applicant failed to attend.

The applicant’s application for judicial review was rejected by the Federal Magistrates Court as demonstrating no jurisdictional error in the Tribunal’s decision. An appeal to the Federal Court was dismissed by Conti J. His Honour held that in exercising the power to reschedule a hearing under s 426A(2) of the Act, the Tribunal was not required to comply with the requirement of s 425A(3) that the period of notice given of the hearing must be at least the prescribed period, at least in circumstances where the Tribunal decides to reschedule a hearing at the behest of an applicant. His Honour further held that the period of notification given in the present case was reasonable and according to law.

We have considered the applicant’s written case and the decisions of the Tribunal, the Federal Magistrates Court and the Federal Court.  There would be insufficient prospects of success on any appeal to this Court from the Federal Court to warrant a grant of special leave.  Accordingly the application for special leave 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 Heydon J and myself.

AT 9.29 AM THE MATTER WAS CONCLUDED