SZEXZ v MIMIA & Anor

[2006] HCATrans 640

[2006] HCATrans 640

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S150 of 2006

B e t w e e n -

SZEXZ

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

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 NOVEMBER 2006, AT 9.34 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant is a citizen of India and a Sikh who claims to fear persecution in the Punjab from Hindu members of the police and the India Congress party.  The decision of a delegate of the respondent to refuse his application for a protection visa was affirmed by the Refugee Review Tribunal (“the Tribunal”).  The Tribunal found that the applicant lacked credibility and that his evidence was inconsistent.  In particular, the Tribunal noted that the applicant had resided for significant periods in South Africa and Botswana without applying for refugee status before returning to India.  This suggested that he did not have a fear of persecution in India. 

The applicant’s application for judicial review was dismissed by the Federal Magistrates Court. Lloyd‑Jones FM found there was no jurisdictional error or want of procedural fairness. Although Lloyd‑Jones FM accepted that the Tribunal had breached s 424B(2) of the Migration Act 1958 (Cth), the breach did not in this case constitute jurisdictional error. Section 424B(2) provides that an applicant must be given a “prescribed period” within which to supply further information, but the effect of the breach in the instant case benefited the applicant by giving him additional time over the prescribed period. An appeal to the Federal Court was dismissed by Jacobson J, who added that even if the breach of s 424B(2) did amount to jurisdictional error, relief should be refused on discretionary grounds because the applicant had suffered no injustice.

The application for special leave to appeal relies on two grounds. The first ground alleges that the Tribunal made errors of fact, and constitutes an impermissible attempt to obtain a merits review of the Tribunal’s decision, a decision which was based on credit. The second ground agitates the s 424B(2) issue. In this respect we agree with Jacobson J that even if the breach of the section did constitute jurisdictional error (a matter which it is not necessary to resolve), relief ought to be refused as a matter of discretion. There are no prospects of success on any appeal. Special leave is 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 9.36 AM THE MATTER WAS CONCLUDED