SZFYM & Anor v MIMIA

[2006] HCATrans 387

[2006] HCATrans 387

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S483 of 2005

B e t w e e n -

SZFYM

First Applicant

SZFYN

Second Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

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 9.29 AM

Copyright in the High Court of Australia

KIRBY J:   These Bangladeshi citizens, who are father and son, formerly resided in India.  The father says that if he were to return to India he would be at risk of persecution as an illegal immigrant and would face deportation to Bangladesh.  There he would be at risk as a Hindu in a Muslim country because of his inter-caste marriage. 

The respondent refused the applicants a protection visa.  The Refugee Review Tribunal (“the Tribunal”) affirmed that decision on several bases.  The father held an Indian passport which appeared in all respects to be valid and legitimate.  His evidence contained contradictions and inconsistencies.  Indeed, in substance the Tribunal found that none of the applicant’s claims were made out. 

The applicant challenged the Tribunal’s decision in the Federal Magistrates Court.

After the Tribunal made its decision (on 18 June 2002), the applicants applied to the Federal Court seeking judicial review of that decision.  The Federal Court referred the matters to the Federal Magistrates Court on 9 September 2002.  Before the Federal Magistrate the applicant’s application was heard together with that of his wife, who in separate proceedings also seeks special leave to appeal to this Court (SZFXY v Minister for Immigration Multicultural and Indigenous Affairs).  On 6 December 2002 Driver FM dismissed both applications after having heard from the applicants who were represented by counsel. 

On 24 December 2002 the applicant lodged a notice of appeal in the Federal Court and on 27 August 2003 Hill J dismissed the appeal. On 23 September 2003 the applicant sought special leave to appeal in this Court and on 28 April 2004 the application was deemed abandoned. On 14 April 2004 the applicants filed a second application for special leave to appeal and on 3 March 2005 a court comprising McHugh and Heydon JJ dismissed the application with costs. The applicants then filed fresh applications in the Federal Magistrates Court which came on for hearing before Mowbray FM. His Honour found that he was bound by the decisions of both the Federal Court and this Court in previous proceedings lodged by the applicants. This Court’s decision meant that the Tribunal’s decisions were privative clause decisions and, as such, the time limit on applications to the Federal Magistrates Court set out in s 477 of the Migration Act 1958 (Cth) applied to the applications. As such, the application was found to be incompetent.

The matter then went to the Federal Court (Sackville J).  His Honour found that the first decision of the Federal Magistrates Court, which had been affirmed on appeal, gave rise to a res judicata between the parties and accordingly the application before him constituted an abuse of process.  In any event there was no basis for deciding that the Tribunal had made any jurisdictional or like error.  Nor is there any discernable error in the approach of Sackville J, and for that reason alone the application for special leave to appeal to this Court would have to be refused.

Because the applicant is unrepresented, the 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 Callinan J and myself.

AT 9.32 AM THE MATTER WAS CONCLUDED