SZEKC v MIMA & Anor

[2007] HCATrans 225

[2007] HCATrans 225

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S324 of 2006

B e t w e e n -

SZEKC

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

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 23 MAY 2007 AT 9.29 AM

Copyright in the High Court of Australia

KIRBY J:   The applicant, who claims to be a citizen of India, arrived in Australia on 1 April 2004.  On 27 April 2004 he lodged an application for a protection visa with the first respondent.  He claimed to fear persecution from militant Hindu groups in India because of his attempts to preach Christianity in India.  On 3 May 2004 a delegate of the first respondent ("the delegate") refused to grant the applicant a protection visa.

The applicant applied to the Refugee Review Tribunal ("the Tribunal") for a review of the delegate's decision.  The Tribunal thought the applicant an unconvincing witness and did not accept that he was attempting to spread Christianity before leaving India.  It did not accept that he had a commitment to Christianity or that he was persecuted on this account.  His application was accordingly rejected.

The applicant applied for judicial review to the Federal Magistrates Court challenging the Tribunal's decision. That Court (Driver FM) observed that, although the Tribunal's decision had been handed down on 17 August 2004, the relevant application to the Federal Magistrates Court was not filed until 14 March 2006. Pursuant to Item 42 of Pt 2 of Schedule 1 to the Migration Litigation Reform Act 2005 (Cth), the applicant was deemed to have been notified of the Tribunal's decision on 1 December 2005. In the Federal Magistrates Court, the Minister relied on the time limit stated in s 477 of the Migration Act 1958 (Cth).

Driver FM upheld the submission that the appellant's application had been filed out of time and held that the Federal Magistrates Court had no jurisdiction to entertain it.  The application was dismissed.

The applicant appealed to the Federal Court relying upon several decisions holding that there was no relevant time limit in respect of decisions affected by jurisdictional error.  It was not apparent from the notice of appeal to the Federal Court or the reasons of Cowdroy J what was being referred to, but it was probably a reference to Plaintiff S157 v The Commonwealth (2003) 211 CLR 476. The Federal Court was constituted for the appeal by Cowdroy J. His Honour dismissed the appeal upholding the time limit relied on by the Minister. The applicant then sought special leave to appeal to this Court.

In this Court the applicant submits that the Tribunal failed to follow proper procedures, denied him natural justice and had a closed mind on his case.  These submissions must fail as they have no support in the record.  Most importantly, the applicant has made no attempt to deal with a basic problem for him, namely that he had already unsuccessfully appealed against the same decision of the Tribunal to the Federal Magistrates Court and to the Federal Court.  In those prior proceedings, the challenges to the Tribunal's decision were dismissed on their legal merits.  This is not, therefore, a case in which any application of time limits deprived the applicant of an opportunity to have the merits of his case heard.  That has already happened.  Nor would this matter afford a suitable occasion to consider any question as to the validity of the time limit legislation, a matter, some aspects of which, have been examined in the supervening decision of this Court in Bodrudazza v Minister for Immigration and Multicultural Affairs [2007] HCA 14.

Special leave to appeal to this Court must be refused.

Because the applicant is unrepresented, this application for special leave falls to be dealt with in accordance with rule 41.10 of the High Court Rules 2004. Pursuant to rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application. I publish that disposition signed by Justice Callinan and myself.

AT 9.33 AM THE MATTER WAS CONCLUDED