SZFIO v MIMA

[2006] HCATrans 699

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S174 of 2006

B e t w e e n -
SZFIO
Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 DECEMBER 2006, AT 9.23 AM

HAYNE J: The applicant, a citizen of Bangladesh, seeks special leave to appeal against the orders of a single judge of the Federal Court of Australia (Besanko J) made in the exercise of the appellate jurisdiction of that Court. Besanko J dismissed the applicant’s appeal against orders of the Federal Magistrates Court (Driver FM) dismissing, as an abuse of process, an application to that Court for relief under s 39B of the Judiciary Act 1903 (Cth) directed to the decision of a delegate of the Minister refusing to grant the applicant a protection visa. The applicant had earlier sought review of the delegate’s decision by the Refugee Review Tribunal but the Tribunal had affirmed the decision. The applicant had then sought judicial review of the Tribunal’s decision but had failed in the Federal Magistrates Court and an application for leave to appeal against those orders was dismissed.

Because the applicant is unrepresented, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

There is no reason to doubt the correctness of the decisions of the courts below.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition.

AT 9.24 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

SZFIO (the applicant) sought judicial review of a decision by the Minister for Immigration and Multicultural Affairs (the Minister) to refuse to grant a protection visa. The applicant, who was of Sri Lankan origin, claimed to fear persecution in Sri Lanka due to his alleged involvement with the Liberation Tigers of Tamil Eelam (LTTE). The Minister had refused the visa on the grounds that the applicant was a person to whom Australia had protection obligations under the *Migration Act 1958* (Cth) but that the applicant was excluded from the definition of a refugee by reason of his past and present involvement with the LTTE, which was designated as a terrorist organisation. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the applicant's alleged past and present involvement with the LTTE constituted a basis for excluding him from the definition of a refugee under section 36(2)(b) of the *Migration Act 1958* (Cth). This section provides that a person is not a refugee if there are serious reasons for considering that the person has committed a war crime, a crime against humanity, or a serious non-political crime outside Australia, or has been guilty of acts contrary to the purposes and principles of the United Nations. The applicant contended that his involvement with the LTTE did not fall within these exclusion clauses.

The High Court considered the nature of the applicant's alleged involvement with the LTTE and the evidence presented. Their Honours applied the principles established in previous cases concerning the interpretation of the refugee exclusion clauses. They found that the evidence did not establish that the applicant had committed acts that would bring him within the exclusion provisions of section 36(2)(b). Consequently, the High Court held that the Minister's decision to refuse the protection visa on those grounds was not justified.

The High Court allowed the appeal, quashed the decision of the Minister, and remitted the application for a protection visa to the Minister for reconsideration according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established