SZEHX v MIMIA

[2006] HCATrans 103

[2006] HCATrans 103

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S383 of 2005

B e t w e e n -

SZEHX

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 9.33 AM

Copyright in the High Court of Australia

KIRBY J:  

Background to the application

The applicant, who claims to be a citizen of the Peoples’ Republic of China, arrived in Australia on 28 March 2004.  On 6 April 2004 he lodged an application for a protection visa and on 15 April 2004 a delegate of the respondent refused to grant his application.  On 21 May 2004 the Refugee Review Tribunal (“RRT”) wrote to the applicant advising that it had considered all the material before it relating to his application but that it was unable to make a favourable decision on that information alone.  The applicant was invited to give oral evidence and to present arguments at a hearing to take place on 25 June 2004.  He was advised that, if he did not attend the hearing and a postponement was not granted, the Tribunal might make a decision in his case without further notice.  The applicant failed to appear before the Tribunal.  The Tribunal proceeded to make an adverse decision in his absence. 

In support of his application for a protection visa the applicant claimed to have experienced an ordeal in China as a Falun Dafa (Gong) practitioner.  He claimed that on 20 July 2001 he and another such practitioner went to the Tiangin Government Centre to distribute Dafa material and was reported to the authorities.  He claimed that he and his companion were arrested and handcuffed in a public place where many people took turns beating them for over an hour.  He claims to have been repeatedly beaten until he lost consciousness.  He states that he was then sent to a detention centre for three months and to avoid further persecution, went to the Shangdong Province.  He claims to have been tracked down in Shangdong Province and that he was later arrested for practising Dafa exercises.  He claims to have been beaten brutally by police on at least two occasions.  He claimed that, if he continued to live in his own city, he would face further punishment from the Chinese government.

The RRT accepted that the applicant is a citizen of the Peoples Republic of China.  However the RRT was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention if he were returned to China.  It found that the applicant’s claims were unclear in some respects; lacked useful details; and in some instances were inconsistent.  One example was that the applicant claimed to be a Falun Dafa practitioner but provided no details about his practice of Falun Dafa.  The Tribunal stated that “it is unclear why he would be arrested, or why he would be prosecuted, given that he claimed to have been punished in May 2003 for practising Falun Dafa and he does not claim to have practised it since then”.  It further noted that he claimed to fear being arrested and punished if he returned to China.  Yet he did so after a few days in Australia earlier in March 2004 which suggested that he did not fear persecution.  He left China legally before coming to Australia and making the present application. 

On appeal to the Federal Magistrates Court, where the applicant was unrepresented, the respondent submitted that the Tribunal had discharged its statutory duty to provide the applicant with an opportunity to give oral evidence and present arguments and that he had failed to take that opportunity. The Tribunal had proceeded appropriately and consistently with section 426A of the Migration Act 1958 (Cth) to make a decision without taking further evidence from the applicant. The Federal Magistrate agreed with that submission. The Magistrate noted that, in the case of a self-represented applicant, the Court had to consider independently whether any arguable case based on the material in the record could have been made out. However, the Federal Magistrate concluded that no grounds were shown to indicate that the Tribunal had committed any legal or jurisdictional error.

On appeal to the Federal Court, two grounds of appeal were articulated.  Conti J noted that those grounds merely restated the applicant’s factual claims which he had made before the Tribunal.  The appeal was dismissed.

The applicant’s draft notice of appeal to this Court repeats the grounds of appeal in the Federal Court, namely, that he faces a risk of imprisonment if returned to China and that his fear of persecution is well‑founded.  The applicant’s written case does not identify any legal or jurisdictional error said to justify a grant of special leave to appeal.  The argument is devoted to matters of fact relating to the applicant’s claims of persecution. 

Disposition of the application

The application raises no question of law still less a question of general public importance.  There is no indication of an error of jurisdiction.  No legal grounds of appeal are articulated either in the draft notice of appeal or in the written case.  The matter turns entirely on the facts and there is no legal or jurisdictional error apparent in the decision of the RRT.

In these circumstances the application does not enjoy any prospect of success in this Court, were special leave granted.  It should be 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 9.38 AM THE MATTER WAS CONCLUDED