SZEWH v MIMIA & Anor

[2006] HCATrans 402

[2006] HCATrans 402

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S552 of 2005

B e t w e e n -

SZEWH

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 THURSDAY, 3 AUGUST 2006, AT 1.32 PM

Copyright in the High Court of Australia

KIRBY J:  

Background

The applicant is a national of Bangladesh.  He arrived in Australia in August 2002 and on 24 September 2002 applied for a protection visa pursuant to the Migration Act 1958 (Cth) on the basis that he was a “refugee” within the Refugees Convention. In December 2002, a delegate of the Minister refused the application. The applicant then sought review of that decision by the Refugee Review Tribunal (“the Tribunal”). By decision made in May 2004, the Tribunal affirmed the primary decision.

The applicant then sought judicial review in the Federal Magistrates Court.  On 1 July 2005, Federal Magistrate Smith dismissed the application.  From that order, the applicant appealed to the Federal Court of Australia.  In that Court, Graham J, exercising the appellate jurisdiction of the Federal Court, dismissed the appeal.  It is from his Honour’s order that the applicant now seeks special leave to appeal to this Court.

The essential controversy in the Federal Court concerned whether the Tribunal, and the Federal Magistrate, had failed to accord procedural fairness to the applicant and to permit him to give his evidence in accordance with the requirements of s 425 of the Act.  At the primary level, the applicant’s case had been that he had been falsely charged with detonating a bomb at an Awami League office in June 2001 and subjected to other false charges on serious offences.  The Tribunal was quite unconvinced of these claims, referring, amongst other things, to the fact that the applicant had avoided arrest, and been permitted to leave Bangladesh, without hindrance.  It also found, on the basis of country evidence, that the claims were unreliable.  It was sceptical about documentary material tendered by the applicant and unpersuaded that the applicant would face risks of serious harm, on a return to Bangladesh, for reasons of his political opinions.

The Federal Magistrate found no error in the approach and analysis of the Tribunal.  In the Federal Court, Graham J noted the imperfections of the transcript before the Tribunal and the unresponsive character of some of the recorded answers of the applicant, when compared to the questions asked.  His Honour rejected the suggestion that the Tribunal had denied the applicant procedural fairness.  Specifically, he rejected the submission that the applicant had not been on notice that the authenticity of the documents tendered by the applicant was in issue in the proceedings.

Disposition

We have carefully considered the applicant’s written case and the reasons of the Tribunal, the Federal Magistrate and Graham J in the Federal Court.  The applicant has not advanced any issues of law, jurisdiction or procedure that warrant a grant of special leave to appeal to this Court.  In its essence, the disposition of the applicant’s claim turned on the Tribunal’s assessment of his credibility and the veracity of the documents that he had submitted in support of his application.  The adverse country information was adequately drawn to the notice of the applicant.  He has not established any factual foundation for an argument based on s 424A of the Act.  No jurisdictional or procedural error is evident in the decision of the Tribunal.  Nor has any error of law been established in the decisions of the lower courts. 

It follows that the application for special leave to appeal to this Court must be refused.

Order

Pursuant to r 41.10.5 of the High Court Rules, we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish that disposition signed by Callinan J and myself.

AT 1.35 PM THE MATTER WAS CONCLUDED