SZEZG v MIMA & Anor

[2007] HCATrans 230

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S234 of 2006

B e t w e e n -

SZEZG
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

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 23 MAY 2007 AT 9.46 AM

KIRBY J: The applicant is a citizen of Bangladesh. He arrived in Australia on 13 September 2003 and on 23 October 2003 applied for a protection visa. The application was rejected by a delegate of the first respondent on 19 February 2004.

The applicant claims that he has suffered death threats and has had false charges made against him by the police because of his membership of the Chatra League, the student wing of the Awami League. When the Awami League was in power, the applicant claims to have been involved in the activities and policy development of the government. He also claims to have been active in election campaigns and to have led a number of public demonstrations. The Awami League is now in opposition, and he claims to have suffered persecution as a result of the change of government. He claimed to have worked for a non‑governmental organization known as "Deep Bangla International NGO". He said that he feared he would be killed if he returned to Bangladesh.

The Refugee Review Tribunal ("Tribunal") held that the applicant was not the person he claimed to be. The Tribunal so found because of a number of inconsistencies between his application, his passport and other documents that he produced. The Tribunal did not regard him as a truthful witness: further, his evidence was vague, generalized and often contradictory. The Tribunal was of the view that the entirety of the applicant's claims had been fabricated to meet the profile of a refugee. It even doubted the existence of the "Deep Bangla International NGO". The applicant did not therefore have a well-founded fear of persecution. The decision of the first respondent's delegate was accordingly affirmed.

The applicant unsuccessfully sought judicial review in the Federal Magistrates Court (Lloyd-Jones FM) on 26 July 2004. He appealed to the Federal Court. On 15 March 2005 Lindgren J dismissed the appeal. The applicant sought special leave to appeal to this Court, and on 8 September 2005 Hayne and Callinan JJ dismissed the application. The applicant applied again to the Federal Magistrates Court, and the respondent filed a notice of objection to competency in response. On 28 April 2006 that Court (Nicholls FM) dismissed the application as an abuse of process. His Honour pointed out that none of the Courts could detect any jurisdictional or like error on the part of the Tribunal. The applicant next applied for leave to appeal to the Federal Court. Leave was denied by that Court (Moore J) on 14 June 2006. His Honour held that the application was incompetent and an abuse of process.

The applicant filed a second application for special leave to appeal to this Court on 10 July 2006. He seeks to argue that the Federal Court erred in failing to find error of law, that the Tribunal's decision should have been governed by, and accorded with, the decisions of this Court in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 and that the Tribunal failed to follow proper procedures.

The application does not identify any question of law for this Court to consider, nor does it deal with the threshold issues that the earlier proceedings were an abuse of process. Accordingly, the application is an abuse of process. In any event, the application would be bound to fail on the facts. The application must be dismissed.

Because the applicant is 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.

AT 9.50 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicants, SZEZG and another, sought judicial review of decisions made by the Minister for Immigration and Multicultural Affairs (MIMA) and the Refugee Review Tribunal (RRT). The core of the dispute concerned the applicants' claims for protection visas, which had been refused by the Minister and subsequently affirmed by the RRT. The matter came before the High Court of Australia.

The central legal issues before the High Court were whether the RRT had erred in law in its assessment of the applicants' claims for protection visas. Specifically, the court was required to consider whether the RRT had failed to adequately consider the evidence presented by the applicants, particularly concerning their fear of persecution in their country of origin. The court also had to determine if the RRT had applied the correct legal test in assessing the credibility of the applicants' claims and whether it had properly considered the provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) in relation to protection visa applications.

The High Court, comprising Kirby and Callinan JJ, examined the RRT's decision-making process. Their Honours considered the evidence before the RRT and the reasons provided by the Tribunal for its findings. The court applied principles of administrative law, focusing on whether the RRT had acted within its jurisdictional error. This involved scrutinising whether the RRT had misunderstood or misapplied the law, failed to take into account relevant considerations, or taken into account irrelevant considerations. The court's reasoning would have involved a detailed analysis of the RRT's findings in light of the statutory requirements for granting protection visas and the established case law on the assessment of refugee claims.

The judgment of the High Court would have ultimately determined whether the RRT's decision was vitiated by an error of law, and consequently, what orders should be made in relation to the applicants' claims.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established