SZEVR & Ors v MIMIA & Anor

[2007] HCATrans 232

[2007] HCATrans 232

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S235 of 2006

B e t w e e n -

SZEVR

First Applicant

SZEVS

Second Applicant

SZEVT

Third Applicant

SZEVU

Fourth Applicant

SZEVW

Fifth Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS 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 9.53 AM

Copyright in the High Court of Australia

__________________

KIRBY J:   The applicants, a husband, wife and children, are citizens of Bangladesh.  The wife and husband arrived in Australia on 9 July 2000 and applied for protection visas on 3 August 2000.  A delegate of the first respondent refused these applications on 13 September 2000.  On 13 September 2000 the applicants applied to the Refugee Review Tribunal (the "Tribunal") for review of that decision.  Their two children were born in Australia on 25 October 2001.  An application was made on behalf of them on 12 February 2002.  The applications were considered together by the Tribunal.

The husband, the first applicant, claimed to have been the owner of a women's clothing business and a minibus business, and to have become joint secretary of the Mini Bus Owners' Association, an organization "politically aligned with" the Jatiya Party (the "JP").  He claimed that members of the Bangladesh National Party (the "BNP"), the party which was in government, captured and tortured him and other supporters of the JP.  When the government changed in 1996 to the Awami League, he claimed that the Mini Bus Owners' Association was proscribed, that he was attacked, and that one of his buses was set alight.  The police were unresponsive to his complaints.  He also complains that a number of false charges have been laid against him by members of the Awami League.  He says that since he has left Bangladesh, "terrorists" have attacked and robbed his former home:  government violence and corruption have destroyed his businesses and threatened his life.  This is so, he says, despite the fact that the JP is the junior coalition partner in government with the Awami League.

The Tribunal did not accept that the change of government had the detrimental effects claimed by the first applicant.  The Tribunal was of the view that the first applicant and his family did not suffer economic hardship as a result of his political affiliations, because they were able to buy new buses and pay for regular international travel during the relevant period.  The Tribunal pointed out that the number of times the family left Bangladesh on travel and re-entered without difficulty demonstrated that they did not have a well-founded fear of persecution.  Further, it did not accept that the documents provided to verify arrest warrants issued for the applicant were genuine.  The Tribunal was not satisfied that the first applicant was a credible and honest witness.  It also found that the court system in Bangladesh is sufficiently independent to offer the first applicant a fair trial in relation to any politically motivated charges.  The Tribunal affirmed the decision of the first respondent's delegate.

The applicants appealed to the Federal Court.  On 25 March 2003 Wilcox J dismissed the application.  On 12 August 2003 the Full Federal Court dismissed a further appeal.  The applicants unsuccessfully sought special leave to appeal to this Court (Kirby and Callinan JJ) on 18 June 2004.  The applicants thereafter made a further application for judicial review to the Federal Magistrates Court.  On 8 December 2004 that Court (Mowbray FM) upheld the respondent's objection to competency and dismissed the application.  The Federal Magistrate also made an order that any proceedings instituted by the applicant could not continue unless leave of the Court were obtained.  An application for leave to appeal to the Federal Court (Jacobson J) was dismissed on 11 March 2005 and an application for special leave to appeal to this Court (Gummow and Kirby JJ) was again dismissed on 1 August 2005. 

On 1 September 2005 a fresh application was filed with the Federal Magistrates Court (Lloyd-Jones FM) which held that leave should not be given unless the Court were convinced that the proceedings were not an abuse of process.  The Federal Magistrate held that all points argued had been previously raised, observing also that all courts had found against the applicants.  He dismissed the application, finding that the proceedings were an abuse of process.  The applicants sought leave to appeal in the Federal Court (Moore J), which saw no error in the decision of the Federal Magistrate and refused the application, finding that it had no prospects of success.

The applicants applied once again for special leave to appeal to this Court on 11 July 2006.  The applicants raise the same arguments as were raised in previous applications and do not identify any issue of law.  In addition, they make no attempt to address the threshold issue, which alone is fatal to the application, that it must be shown that their application is not an abuse of process.  The application must be dismissed.

Because the applicants are 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.

Adjourn the Court now until 10.15 am in this courtroom.

AT 9.58 AM THE MATTER WAS CONCLUDED