SZHFN v MIMA & Anor

[2007] HCATrans 350

[2007] HCATrans 350

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S413 of 2006

B e t w e e n -

SZHFN

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 9.13 AM

Copyright in the High Court of Australia

KIRBY J:   The applicant is a national of the Republic of China (Taiwan).  He arrived in Australia on 30 September 2004 and promptly made an application for a protection visa.  He claims to be a "refugee" within the Refugees Convention and Protocol and thus entitled to protection in accordance with Australian law.

The applicant's claim was rejected by a delegate of the Minister.  He then applied for review of that decision before the Refugee Review Tribunal ("the Tribunal").  The Tribunal rejected the application.  Judicial review was refused by Smith FM in the Federal Magistrates Court in April 2006.  In November 2006, Marshall J, exercising the appellate jurisdiction of the Federal Court of Australia, dismissed the applicant's appeal from the Federal Magistrates Court.  The applicant now seeks special leave to appeal to this Court.

The essence of the applicant's case is that, on a business visit to the People's Republic of China (PRC) in 2001, he was recruited to report on conditions in Taiwan, specifically on a Falun Gong Centre there and on the Taiwanese elections.  However, he claimed that his association with Falun Gong had attracted him to its tenets, causing him to withdraw from his work for the PRC, after which he claimed to have been intimidated and threatened.

The applicant was invited to give oral evidence before the Tribunal.  He made no response to this invitation.  He did not appear at the Tribunal hearing.  Accordingly, the Tribunal proceeded to make its decision in the absence of the applicant.  It concluded that the applicant had not satisfied it that he was owed protection obligations under the Convention.

The Federal Magistrate detected no errors in the approach of the Tribunal and rejected the applicant’s complaints of procedural and jurisdictional error.  In the Federal Court, Marshall J concluded that the applicant's appeal was unarguable.

In this Court, the proposed notice of appeal contends that the Tribunal failed to consider the application for a protection visa in accordance with s 424A of the Act, and that the Tribunal was biased against the applicant in ways that are not elaborated upon.

We are of the view that s 424A had no relevant application to the proceedings before the Tribunal.  Its decision turned on an insufficiency of material, unsupplemented by any further evidence which the applicant was invited to, but failed, to offer.  The Tribunal's decision is untainted by any jurisdictional error.  The Federal Magistrate and the Federal Court were correct so to decide.  The application for special leave must therefore be refused.

Because the applicant is unrepresented, his 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 9.16 AM THE MATTER WAS CONCLUDED