SZEEG & Ors v MIMIA

[2006] HCATrans 102

[2006] HCATrans 102

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S379 of 2005

B e t w e e n -

SZEEG

First Applicant

SZEEH

Second Applicant

SZEEI

Third Applicant

SZEEJ

Fourth Applicant

SZEEK

Fifth Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 MARCH 2006, AT 9.29 AM

Copyright in the High Court of Australia

__________________

KIRBY J:  

Background to the application

The applicants are husband, wife and children who claim to be citizens of Bangladesh.  The husband first arrived in Australia in April 1996 and the other members of the family arrived in or before November 1999.  On 30 April 2002, they applied for protection visas.  On 7 August 2002, a delegate of the respondent Minister refused the application.

The applicant husband claimed that he was a Muslim and had been involved in politics in Bangladesh in the interests of the Awami League.  He claimed that he would be killed and persecuted if returned to Bangladesh.  He claimed that the BNP had lodged a number of proceedings against him.

The Refugee Review Tribunal (“RRT”) rejected the applicant’s claim.  It noted that despite having been in Australia for many years he had only applied for protection in April 2002, whereupon he made ‘the barest of claims’.  He had changed his party affiliation in evidence before the RRT.  It noted that he had many opportunities before the hearing to present his claims and that the change of the party he claimed to be

affiliated with was not credible.  His account of political involvement was said to be vague and unconvincing.  Even if his claims were to be believed, his political profile had peaked 19 years ago and he had visited Bangladesh only once in 18 years.  His profile would have diminished dramatically and he could reasonably be expected to relocate within Bangladesh if he feared persecution on return.

On appeal to the Federal Magistrates Court, the applicant was represented by counsel.  A number of grounds of appeal were raised.  It was argued that the RRT had failed to consider the applicant’s subjective state of mind in considering whether or not he had a well-founded fear of persecution.  The applicant also submitted that he had been denied procedural fairness in that the RRT failed to give due consideration to an innocent mistake on his application form regarding his party affiliation.  This matter was fully explored in the RRT hearing and the Magistrate found that the applicant was sufficiently put on notice that the RRT had difficulty believing his claim to fear persecution and that no jurisdictional error was established.

On appeal to the Federal Court, the applicant argued that it was an error to find that he would be protected if he relocated to a different part of Bangladesh. Tamberlin J found that this raised only a question of fact. He rejected the other grounds of appeal, including that based on s 424A of the Migration Act 1958 (Cth). He pointed out that the issue of relocation had been raised with the applicant in the course of the hearing.

The applicant’s draft notice of appeal to this Court states that the Federal Court erred in finding that the RRT did not make an error of law in failing to comply with s 424A of the Act. It further claims that the Federal Court ‘erred to find out that the findings and reasons of the [RRT] enabled it to reach the conclusion in rejecting the applicant’s claim. Wherein [sic] the Tribunal observed the relocation issue ... and ... to give its (RRT) decision [sic].’ The written case also states that the RRT decision was unfair in that it made findings beyond the four key elements of the Convention definition of a “refugee” and that it had relied on a suggested relocation.

Disposition of the application

The application does not raise any questions of law of general public importance.  The findings of the RRT essentially turned on its assessment that the applicant was not a credible witness and that, even if his claims were to be believed, they did not amount to a well-founded fear of persecution for a Convention reason.

The applicants have not shown an arguable case for the grant of special leave. 

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 9.33 AM THE MATTER WAS CONCLUDED