SZHVV v MIAC & Anor

[2007] HCATrans 733

[2007] HCATrans 733

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S134 of 2007

B e t w e e n -

SZHVV

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, 6 DECEMBER 2007, AT 9.29 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 March 2005 and promptly made an application for a protection visa.  He claimed to be a "refugee" entitled, as such, to a protection visa pursuant to the Migration Act 1958 (Cth) ("the Act"). A delegate of the respondent Minister, in April 2005, rejected the application.

The applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of the delegate's decision.  The Tribunal rejected his application in October 2005.  It concluded that the applicant was not owed protection obligations. 

The applicant then sought judicial review from the Federal Magistrates Court.  Federal Magistrate Nicholls, in September 2006, found that the applicant had failed to establish jurisdictional error on the part of the Tribunal.  Accordingly, he dismissed the application.

The applicant appealed to the Federal Court of Australia.  The appellate jurisdiction of that court was exercised by Jessup J.  On 26 February 2007, his Honour dismissed the appeal and affirmed the decision of the Federal Magistrate.  It is from the orders of the Federal Court that the applicant seeks special leave to appeal to this Court.  In our view, the application fails.

The applicant's initial complaint, to the delegate and to the Tribunal, was that he had been mistreated by the authorities in China in 1989 because of his political opinions.   He claimed to have continued to promote the Democratic Party, as a result of which police searched his home in December 2004.  It was at that stage that the applicant decided to leave China for Australia.

The Tribunal pointed out that the applicant's claims were entirely dependent on acceptance of him as a credible witness.  However, in several key aspects, the Tribunal found that the applicant was not credible.  It described him as an unimpressive witness and found that some of his evidence was implausible, vague, unconvincing and contradictory.  Specifically, it noted that the applicant lacked knowledge of the Chinese Democratic Party, except in the broadest of terms.  His unhindered departure from China was referred to as a factual element hard to reconcile with suggested persecution by the Chinese authorities.  The Tribunal therefore dismissed the application.

The Federal Magistrate dismissed the applicant's criticism of the Tribunal's reasoning. He also rejected the applicant's reliance on suggested breaches of s 424A of the Act. He concluded that the applicant had been given a fair opportunity in the hearing to present his case. He dismissed the complaint of the denial of procedural fairness and found no jurisdictional error. We find no error in the reasoning and conclusions of the Federal Magistrate.

Likewise, no error is discerned in the reasoning of Jessup J in the Federal Court, including his Honour's refusal to grant leave to include a new ground of bias to the grounds of appeal.  Essentially, the applicant is endeavouring to re-open the factual findings on the merits as recorded in the Tribunal's reasons.  Whilst care on the part of the Tribunal is needed in making findings as to credibility on the basis of the appearance of applicants and witnesses, we see no reasonable prospect of this Court's disturbing the credibility findings adverse to the applicant.  The application would enjoy no reasonable prospect of success, were special leave granted.  It is therefore dismissed. 

Because the applicant was unrepresented in this Court and has filed a written case, his application was 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.  I publish that disposition signed by Justice Heydon and myself.

AT 9.33 AM THE MATTER WAS CONCLUDED