SZGTE v MIMA & Anor

[2006] HCATrans 639

[2006] HCATrans 639

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S148 of 2006

B e t w e e n -

SZGTE

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

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 NOVEMBER 2006, AT 9.31 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant is a citizen of the People’s Republic of China who claims to fear persecution because since coming to Australia he has become a practitioner of Falun Gong.  The decision of a delegate of the first respondent to refuse his application for a protection visa was affirmed by the Refugee Review Tribunal (“the Tribunal”).  The Tribunal found that the applicant’s claims for a protection visa were based solely on his practice of Falun Gong, and that although he alleges he was involved with the pro‑democracy student movement at Tiananmen Square during May and June 1989 his application was not put on this basis.  The Tribunal found that although the applicant undertakes part of a Falun Gong exercise regime, he was not a “genuine and committed” practitioner of Falun Gong, and would not be returning to China as a known Falun Gong practitioner.

The applicant’s application for judicial review on grounds of jurisdictional error and denial of procedural fairness was dismissed by the Federal Magistrates Court.  Prior to the hearing, Emmett FM rejected an application by the applicant seeking to file a further amended application raising new grounds two days out of time.  Emmett FM then found that the findings of the Tribunal were open to it, and that it had not undertaken a “disproportionate interrogation” of the applicant as he claimed. 

An appeal to the Federal Court, both on the substantive decision and the refusal of leave to file a further amended application, was dismissed by Graham J.  While Graham J found that Emmett FM had made an error of fact in coming to her decision to refuse leave to file the further amended application, his Honour held that leave should have been refused in any event.  His Honour took into account case management factors, the “doubtful merit” of the proposed new grounds and the inadequate explanation for the failure to raise these grounds earlier in circumstances where considerable time had been allowed to file an amended application.  Graham J then held that the Tribunal’s findings were open to it, and not attended by jurisdictional error.

The application for special leave to appeal raises a number of grounds relating both to the substantive decision, and to the treatment of the applicant’s application further to amend his application.  However none of the grounds seeking to attack the substantive decision demonstrates jurisdictional error.  They do not challenge the central finding of the Tribunal rejecting the applicant’s claim to be a genuine Falun Gong practitioner, and one seeks to agitate claims based upon the applicant’s alleged presence at Tiananmen Square, a factor which was expressly disavowed by him before the Tribunal as founding his application.  Nor is the exercise of a procedural discretion to allow an amendment to an application a suitable question to attract a grant of special leave.  There is no question which justifies a grant of special leave, which accordingly is refused. 

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

AT 9.34 AM THE MATTER WAS CONCLUDED