SZEYH & Anor v MIMA

[2006] HCATrans 557

[2006] HCATrans 557

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S99 of 2006

B e t w e e n -

SZEYH

First Applicant

SZEYI

Second 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

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 OCTOBER 2006, AT 9.29 AM

Copyright in the High Court of Australia

__________________

GUMMOW J:   The applicants, who are husband and wife, are Indian citizens.  The applicant husband claims that he fears persecution because of his political involvement and that of his father.  The applicant wife also relies on her husband’s alleged fear of persecution to ground her claim to refugee status.  The applicants were refused a protection visa by a delegate of the first respondent on 1 October 2003.

The applicants were invited to give oral evidence before the Refugee Review Tribunal (“the Tribunal”) in 2004, and also advised in writing that the Tribunal was unable to make a favourable decision on their written documentation alone.  The applicants informed the Tribunal that they did not wish to give oral evidence.  The Tribunal then dismissed the husband’s claims as unsupported assertions, and ruled that he did not have a well-founded fear of persecution.

In the Federal Magistrates Court, the first applicant claimed that his wife’s ill health and his migration agent’s advice had prevented him attending the Tribunal hearing. Consequently, he alleged that the Tribunal had erred by failing to give him a real and meaningful opportunity to attend a hearing. Emmett FM ruled that the Tribunal’s invitation to attend was sufficient and that there had been no denial of procedural fairness. Her Honour held that s 427(3) of the Migration Act 1958 (Cth) conferred a discretionary power on the Tribunal to hear oral evidence and did not, as claimed by the first applicant, compel the Tribunal to summon a person before it. There had thus been no jurisdictional error affecting the decision.

The ruling of Emmett FM was upheld on appeal to the Federal Court by Jacobson J, who gave detailed reasons and considered a range of authorities in this Court, the Federal Court and other courts.

The application to this Court has insufficient prospects of success to justify a grant of special leave.  Special leave is accordingly 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 9.31 AM THE MATTER WAS CONCLUDED