SZEYE v MIMIA

[2006] HCATrans 405

[2006] HCATrans 405

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S588 of 2005

B e t w e e n -

SZEYE

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 1.43 PM

Copyright in the High Court of Australia

KIRBY J:  

Background

The applicant, a national of China, arrived in Australia in January 2004 and promptly applied for a protection visa. A delegate of the Minister refused the application. That decision was reviewed by the Refugee Review Tribunal (“the Tribunal”). The applicant did not respond to an invitation to give oral evidence before the Tribunal. Pursuant to s 426A of the Migration Act 1958 (Cth) (“the Act”), the Tribunal decided the case in the absence of the applicant on the basis of his written application. The Tribunal was not satisfied that the applicant had a genuine fear upon the grounds he had stated, namely that he was an adherent of Falun Gong. Nor was it satisfied that he would face harm in the reasonably foreseeable future were he returned to China.

The applicant sought judicial review from the Federal Magistrates Court.  The application was heard by Federal Magistrate Smith.  The Federal Magistrate affirmed the delegate’s decision on the basis that the Tribunal’s conclusion that the applicant had failed to satisfy it as to the truth of the claims made in his application, was open to the Tribunal on the footing of the applicant’s absence from the hearing to which he had been invited.  Federal Magistrate Smith found no jurisdictional or other error in the Tribunal’s reasons and dismissed the application. 

On appeal to the Federal Court of Australia, the appellate jurisdiction of that Court was exercised by Sackville J.  The applicant was unrepresented.  He repeated his claim that he would be imprisoned if he were returned to China.  However, Sackville J concluded that no error had been shown on the part of the Federal Magistrates Court justifying judicial review.

The applicant’s draft notice of appeal to this Court states that the procedures that were required to be observed under the Migration Regulations, in connection with the primary decision, were not observed in this case.  The applicant’s written case states that the applicant is a genuine Falun Gong practitioner.  It repeats his factual claim that is said to give rise to his entitlement to a protection visa but does not otherwise elaborate the grounds of appeal propounded.

Disposition

We have carefully considered the applicant’s written case.  However, the applicant has not established any error of law or jurisdictional or procedural error that would attract the intervention of this Court.  As it emerged before the Tribunal, the contest is basically one concerned with the facts and the applicant’s claim for protection was not helped by his decision not to provide oral evidence and argument before the Tribunal.  Whatever occasioned this election (and it might have been based on linguistic or cultural factors) it meant that the factual basis of the applicant’s claim was limited.  Subsequent efforts to create a foundation for judicial review have foundered on that initial weakness.  The efforts now to propound a legal, jurisdictional or procedural error are unconvincing.  There would be no prospect of success in this Court, were special leave granted.  The application must therefore 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 1.46 PM THE MATTER WAS CONCLUDED