SZHSE & Ors v MIMA & Anor

[2007] HCATrans 353

[2007] HCATrans 353

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S417 of 2006

B e t w e e n -

SZHSE

First Applicant

SZHSF

Second Applicant

SZHSG

Third Applicant

SZHSH

Fourth 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 9.22 AM

Copyright in the High Court of Australia

__________________

KIRBY J:   The applicants (husband, wife and children) are nationals of India.  They arrived in Australia in April 2003 and promptly made an application for a protection visa.  The application contended that the applicants were "refugees" within the Refugees Convention and Protocol and thus entitled to protection under Australian law.  The claims for protection by the wife and children were derivative of the claims of the applicant husband.

In June 2003 a delegate of the Minister refused the application.  The applicants thereupon applied to the Refugee Review Tribunal ("the Tribunal") for review.  The Tribunal, as first constituted, affirmed the decision of the delegate.  However, in June 2005, by consent, the Federal Magistrates Court, which had before it an application for judicial review, remitted the application for re-hearing by a differently constituted Tribunal.  This was duly done. 

The applicant husband's claim was based upon a contention that he had been actively involved in the Akali Dal (Mann) Group, an organisation which he claimed had been black-listed by the Congress Party, which had instituted false claims against its members and caused them to be detained and subjected to physical and verbal threats.  He himself claimed to have been detained and tortured.  These matters were the focus of the claim of "persecution" during the second hearing before the Tribunal in August 2005.

The Tribunal rejected the contentions of persecution. In part, it did so on the basis that there was no independent evidence suggesting that members of the Akali Dal (Mann) Group were harassed, harmed or black‑listed by Indian political or governmental authorities; India was a parliamentary democracy. In part, however, the Tribunal's rejection of the application was based on its opinion that the husband applicant was not a witness of truth; that there were suspicious features of the application and its claims; that certain contentions about two arrests had not been earlier expressed either in the initial application to the Department or (in one case) before the Tribunal as first constituted; and that a notice concerning inconsistencies, given under s 424A of the Migration Act 1958 (Cth), had not been responded to. In particular, the Tribunal considered it implausible that the husband applicant, at the relevant time a man of 43 years, could have been, as he claimed, a member of the "Youth Wing" of Akali Dal.

From the second Tribunal's rejection of the application, the applicants sought judicial review by the Federal Magistrates Court.  The application came before Scarlett FM.  One claim of jurisdictional error was based on the suggested impermissibility of reasoning by the second Tribunal having regard to its use of evidence given before the first.  The Federal Magistrate rejected the criticism of the use of the record of the first Tribunal.  Other objections were rejected on the basis that they amounted, in effect, simply to challenges to factual findings.

The applicants then appealed to the Federal Court of Australia.  In November 2006, Nicholson J, exercising the appellate jurisdiction of that court, dismissed the appeal.  His Honour concluded that there had been no error of law or jurisdiction made by the second Tribunal had referred to the evidence in the previous hearing.  Nor was his Honour convinced that the second Tribunal had simply repeated the reasons of the first Tribunal without exercising independently the powers reposed in it.  As to the factual conclusions, Nicholson J found, as had the Federal Magistrate, that the essential basis for the second Tribunal's decision was its finding that the husband applicant lacked credibility in his claim to membership of the Akali Dal.

We find no error in the approach or conclusion of the Federal Court.  We see no reasonable prospect that, if special leave were granted, it would result in any disturbance of the Federal Court's judgment.  The applicants' written case fails meaningfully to address the reasons of Nicholson J and does not demonstrate any basis to question its correctness.  For these reasons, the application for special leave must be rejected.

Because the applicants are 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 and I publish the disposition signed by Justice Callinan and myself.

AT 9.26 AM THE MATTER WAS CONCLUDED