SZGCF & Anor v MIAC & Anor

[2008] HCATrans 21

[2008] HCATrans 021

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S264 of 2007

B e t w e e n -

SZGCF

First Applicant

SZGCG

Second Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 FEBRUARY 2008, AT 9.34 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicants are husband and wife and are citizens of Bangladesh.  On 29 September 2004 a delegate of the first respondent refused their application for protection visas.  The Refugee Review Tribunal ("the Tribunal") rejected the application for review of the delegate's decision on 8 March 2005.  The male applicant claimed to fear persecution because he was a leading member of the Jatiya Party between 1988 and 2004 and because he was a successful businessperson.  Although the Tribunal accepted that the male applicant was a member of the Jatiya Party and that the applicants and the male applicant's brother had been beaten by unknown persons, it was not satisfied that there was sufficient evidence to conclude that the attacks were politically motivated.  The Tribunal found that the applicants could continue their political activities without fear of persecution.

On 22 December 2006 Burnett FM dismissed the application for review of the Tribunal's decision. His Honour rejected the applicants' argument that the various authorities relied on by the Tribunal going to the definition of a "refugee" constituted "information" within the meaning of s 424A of the Migration Act 1958 (Cth). The balance of the applicants' claims went to the merits and did not disclose jurisdictional error.

Edmonds J dismissed the applicant's appeal to the Federal Court on 10 May 2007. His Honour agreed that there was no breach of s 424A, and that the Tribunal's findings were open to it for the reasons given.

The applicants' written submissions raise a new ground, not advanced in the courts below, that the Tribunal fell into jurisdictional error by finding that it was mere speculation that the attacks on the applicants and the male applicant's brother were politically motivated.  However, this claim goes to the merits of the Tribunal's decision. There was no failure to give reasons within the requirement of s 430 of the Act, nor is there substance to the claim that the Tribunal applied an inappropriate standard of proof.  Any appeal would have insufficient prospects of success to warrant a grant of special leave.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.  I publish the disposition signed by Kiefel J and myself.

AT 9.36 AM THE MATTER WAS CONCLUDED