SZHVB v MIMA & Anor

[2007] HCATrans 344

[2007] HCATrans 344

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S328 of 2006

B e t w e e n -

SZHVB

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 8.55 AM

Copyright in the High Court of Australia

KIRBY J:   The applicant is a citizen of the People's Republic of China.  He arrived in Australia on 20 March 2005 and applied for a protection visa on 14 April 2005.  That application was refused by a delegate of the first respondent on 6 July 2005. 

The applicant claimed to fear persecution from corrupt government officials who demanded money and interfered with the operation of the applicant's wholesale clothing business.  He claimed to have been accused of being a Falun Gong practitioner and detained by government authorities for four days, until a sum of money was paid for his release.  He denied being a Falun Gong practitioner, but said that he associated regularly with people who were.  He also claimed to fear persecution because he and his wife had had a second child in breach of government policy.  He claimed that he was unable to register the birth; faced heavy financial penalties; and said that his wife had been forcibly sterilized by government officials. 

The applicant appealed from the decision of the delegate to the Refugee Review Tribunal ("the Tribunal").  Before the Tribunal, the evidence of the applicant was vague and general, and this led to doubt the veracity of his claims.  Based on his demonstrated lack of knowledge about Falun Gong, the Tribunal was not satisfied that he associated with practitioners of the philosophy, nor was it satisfied that the problems that he had experienced with government officials amounted to any form of harassment.  The Tribunal further held that as China's one-child policy was one of general application, so would not ordinarily amount to persecution.  Moreover, if his wife had been sterilized, there was little chance that there would be further fines or medical treatments forced upon him or her.  Accordingly, the Tribunal held that the applicant would not be subject to disproportionate ill-treatment, that is to say, persecution, were he to return to China.  This latter approach appears conformable with the conclusion of this Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225.

The applicant appealed from the decision of the Tribunal to the Federal Magistrates Court (Driver FM). The applicant argued that the Tribunal was in breach of s 424A of the Migration Act 1958 (Cth) ("the Act"), which requires procedural fairness to applicants in relation to information adverse to their claims. He also argued that the Tribunal failed to carry out its statutory duty. In dismissing the application, the Federal Magistrate held that there was no evidence of bias, no jurisdictional error and no misunderstanding on the part of the Tribunal that would justify a finding in favour of the applicant.

The applicant appealed from the decision of the Federal Magistrate to the Federal Court (Rares J) which dismissed the application. It found that the applicant was seeking a merits review, rather than raising issues of law, and that there was no error in the decision of the Tribunal or the Federal Magistrate. The Federal Court affirmed that there had been no breach of s 424A of the Act.

The applicant now seeks special leave to appeal to this Court.  The draft notice of appeal does not raise any new issues of law or fact, and in substance it too seeks a merits review.  As any appeal would have insufficient prospects of success, special leave to appeal is denied.

Because the applicant is unrepresented, this application for special leave falls to be dealt with in accordance with rule 41.10 of the High Court Rules 2004. Pursuant to rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application and I publish the disposition signed by Justice Callinan and myself.

AT 8.58 AM THE MATTER WAS CONCLUDED