SZGXO v MIMA

[2007] HCATrans 351

[2007] HCATrans 351

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S414 of 2006

B e t w e e n -

SZGXO

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

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 AUGUST 2007, AT 9.16 AM

Copyright in the High Court of Australia

KIRBY J:   This disposition is to be read in conjunction with the disposition in the matter of SZGXZ v Minister for Immigration and Multicultural Affairs & Anor (S 415/2006), a case involving the sister of the present applicant.

The applicant is a national of the People's Republic of China (PRC).  She arrived in Australia in December 2004 and promptly applied for a protection visa.  She claims to be a "refugee" within the meaning of that term in the Refugees Convention and Protocol and therefore entitled to protection under Australian law.

In February 2005, a delegate of the Minister refused the application for protection.  The applicant thereupon applied to the Refugee Review Tribunal ("the Tribunal").  The Tribunal concluded that the applicant's account of her tribulations in the PRC lacked credibility.  Her claims were rejected on that basis.  It is that determination that has resulted in the proceedings for judicial review that have brought the matter, and the associated application, to this Court.

The applicant's case was that she and her sister (SZGXZ) owned and managed a clothing shop in China and had been victims of extortion by government officials.  A complaint was made to the authorities which resulted in the closure of the shop by the police.  The applicant complained that she had been detained by the police for fourteen days and mistreated in custody.  After her release, the applicant asserted that she had made further complaints, resulting in threats of further and more severe punishment.

In rejecting the claims of the applicant, the Tribunal noted that she had been able to leave China using a passport bearing her own name.  It pointed to internal inconsistencies and implausibility in the applicant's evidence.  It concluded that she had fabricated her claim.  It did not accept that the inconsistencies were the product of errors of interpretation.

The applicant sought judicial review by the Federal Magistrates Court. Her application came before Scarlett FM. She complained that the Tribunal had shown bias against her because of her lack of formal education and unfamiliarity with procedures. Scarlett FM rejected these contentions and held no breach of s 424A of the Migration Act 1958 (Cth). Scarlett FM concluded that no jurisdictional or other legal error had been made. He therefore dismissed the application for judicial review.

The applicant then appealed to the Federal Court of Australia. Her appeal came before Heerey J, exercising the appellate jurisdiction of that court. It was heard together with a concurrent appeal by the applicant's sister, SZGXZ. The complaints of bias and failure on the part of the Tribunal to carry out its statutory duties in accordance with s 424A of the Act were repeated. Heerey J dismissed these complaints, affirming the decision of the Federal Magistrate. His Honour went on to find that, in any case, even if the applicants' claims about happenings in the PRC were accepted as true, they did not amount to "persecution" necessary to found a claim for protection based on the Convention and Protocol.

In this Court, the applicant's draft notice of appeal repeats the contention of bias on the part of the Tribunal and argues that the application was not considered in accordance with s 91R of the Act.  It is not necessary for us to decide whether Heerey J was right in his additional conclusion that the applicant's claim, if proved, fell short of "persecution" in the Convention sense.  It is enough, to sustain the decisions below, to reach the conclusion, as we do, that no error is discernible in the decisions of the Federal Magistrates Court and the Federal Court to the effect that the applicant had failed to make out the complaints that she addressed to the procedures of, and course of reasoning in, the Tribunal.  The application for special leave to appeal must be refused.  It does not have any reasonable prospects of success.

Because the applicant is unrepresented, her 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 and I publish the disposition signed by Justice Callinan and myself.

AT 9.20 AM THE MATTER WAS CONCLUDED