SZGFI & Ors v MIAC & Anor

[2007] HCATrans 729

[2007] HCATrans 729

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S128 of 2007

B e t w e e n -

SZGFI

First Applicant

SZGFJ

Second Applicant

SZGFK

Third 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

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 DECEMBER 2007, AT 9.18 AM

Copyright in the High Court of Australia

__________________

KIRBY J:   The applicants are a husband, wife and son who are nationals of India.  They arrived in Australia in January 2004 and promptly applied for protection visas.  The applicant husband ("the applicant") claimed to be entitled to protection as a "refugee" within the Migration Act 1958 (Cth) ("the Act"). The entitlements of the wife and son are derivative.

In February 2004 a delegate of the respondent Minister refused the application.  The applicant then applied for review by the Refugee Review Tribunal ("the Tribunal").  The Tribunal in June 2004 heard oral evidence from the applicant.  Subsequently, because of the retirement from office of the member earlier constituting the Tribunal, in July 2004 it was reconstituted to a different member.  As so reconstituted, the Tribunal rejected the applicant's application.

There followed an application for judicial review to the Federal Magistrates Court.  That application was rejected by Burnett FM in December 2006.  An appeal was then taken to the Full Court of the Federal Court of Australia.  That appeal was heard by Tracey J, exercising the appellate jurisdiction of the Federal Court.  That Court rejected the appeal, concluding that no jurisdictional error had been shown on the part of the Tribunal and that the applicant was endeavouring to invoke judicial review to secure what would, in effect, be merits review of the Tribunal conclusions adverse to his claim.

The applicant, on his own behalf and on behalf of his wife and son, now seeks special leave to appeal to this Court.  In our view, that application should be refused.

The essential foundation for the applicant's case grew out of his claim that he was subject to persecution in India by reason of his religion.  The applicant is a Muslim and he complained that police in India did not respond to complaints or provide State protection to him on that ground.  He asserted that, as a member of the Muslim Student Federation, he had been arrested and detained many times by Hindu extremists and had received ongoing threats. 

The Tribunal made findings adverse to the applicant.  In part, these were based on his ability to travel outside India on two occasions and to return there without apparent difficulty.  As well, the Tribunal was not satisfied that, at the age of 38 years, the applicant belonged to a student organisation, as he alleged.  On the footing of these findings, the applications for judicial relief were doomed to fail, absent some jurisdictional or legal error. 

Although the applicant relied on ss 424A and 430 of the Act, the invocation of those sections was rejected for reasons that do not call for the intervention of this Court. There would be no reasonable prospect of success in an appeal if special leave were granted. It is on that basis that the application for special leave to appeal is refused.

Because the applicants were unrepresented, their application has been dealt with in accordance with Rule 41.10 of the High Court Rules.  Pursuant to Rule 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.  I publish that disposition signed by Justice Heydon and myself.

AT 9.21 AM THE MATTER WAS CONCLUDED