SZHCW v MIAC & Anor

[2008] HCATrans 39

[2008] HCATrans 039

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S244 of 2007

B e t w e e n -

SZHCW

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, 7 FEBRUARY 2008, AT 9.11 AM

Copyright in the High Court of Australia

KIRBY J:   The applicant is a national of the People's Republic of China.  He arrived in Australia in September 2004 and promptly sought a protection visa.  He claimed to be a "refugee" within the Refugees Convention and Protocol, given effect by the Migration Act 1958 (Cth) ("the Act"). His claim was based upon his alleged membership of an underground Christian church in China.

The claim was rejected by a delegate of the Minister in March 2005.  The Refugee Review Tribunal ("the Tribunal") also rejected the claim.  An application to the Federal Magistrates Court was dismissed by Raphael FM, who found no error amenable to judicial review and saw the applicant's claim as being for a "merits" reconsideration.  The Federal Magistrate also rejected a claim of bias on the part of the Tribunal.

An appeal to the Federal Court was decided by Rares J, exercising the appellate jurisdiction of that Court. On the basis of the record, his Honour rejected, as unsubstantiated, the complaint that the Tribunal had failed to accord the applicant an opportunity to give evidence in accordance with s 425 of the Act. No jurisdictional error was found.

The applicant's essential difficulty is that the Tribunal did not accept his claim of persecution for reasons of his religion. It found his oral evidence with respect to his religion so vague, ambiguous and generalised as to be unconvincing. Further, it did not accept that the applicant had come to the adverse attention of authorities or that the applicant had departed from China on a false passport. In short, the claim was rejected wholly on a factual or evidentiary basis. It is not suitable for a grant of special leave to appeal to this Court. No point of law or principle is raised. Nor was there any evidence in the record to support the belated contention that the Tribunal had failed to give the applicant an opportunity to give evidence as envisaged by s 425 of the Act.

In these circumstances, the application must be refused.

Because the applicant is unrepresented and has filed a written case, his application has been dealt with in accordance with rule 41.10 of the High Court Rules.  In accordance with 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 Heydon J and myself.

AT 9.13 AM THE MATTER WAS CONCLUDED