SZHYN v MIAC & Anor

[2007] HCATrans 717

[2007] HCATrans 717

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S469 of 2007

B e t w e e n -

SZHYN

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for reinstatement

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 26 NOVEMBER 2007, AT 9.01 AM

Copyright in the High Court of Australia

SZHYN appeared in person.

MS S.A. SIRTES:   May it please the Court, I appear for the respondent Minister.  (instructed by Blake Dawson Waldron)

BHARAT DHUNGANA, affirmed as interpreter:

HIS HONOUR:   Could you tell the applicant that I have read all the papers that have been filed and ask him if there is anything he wants to add to the material that has been filed, anything he wants to say.

SZHYN (through interpreter):   Yes.

HIS HONOUR:   You have handed me a number of copies of the written case you would wish to rely on if your application is reinstated.  Is that right?

SZHYN (through interpreter):   Yes.

HIS HONOUR:   I will put those with the file.  Is there anything else you want to provide or say?

SZHYN (through interpreter):   No, everything else is there.

HIS HONOUR:   Thank you.  Mrs Sirtes, do you have a copy of this written case?

MS SIRTES:   No, I have not seen it, your Honour.

HIS HONOUR:   I will just read through this document.  Thank you.  I need not trouble you, Mrs Sirtes.

On 11 September 2007 the applicant filed an application for special leave to appeal against an order of the Federal Court of Australia, Justice Graham, dismissing an appeal from the refusal by the Federal Magistrates Court, Federal Magistrate Raphael, of an application for judicial review of a decision of the second respondent upholding the refusal of a delegate of the first respondent to grant a protection visa to the applicant.

The applicant failed to comply with rule 41.10.4 of the High Court Rules in that he failed to file his written case within 28 days of filing the application.  His application was therefore deemed under the Rules to have been abandoned on 9 October 2007.

By a summons filed on 2 November 2007, the applicant applies for reinstatement of the special leave application.  The applicant advances various excuses for non‑compliance but it is convenient to go first to the position of the first respondent.  He submits that while he would not suffer prejudice from reinstatement, it would be futile to order it because the special leave application is devoid of merit.

The history is that the second respondent rejected the applicant’s claims to fear political persecution in Nepal from the government on the supposed ground that he helped Maoists.  It did so because it disbelieved many of the applicant’s claims, including claims that he and his family assisted Maoists, that he was the object of threats or acts of violence, that a warrant was issued for his arrest, that he was detained or tortured, that he went into hiding, that he left Nepal because of persecution and that he fears persecution on his return to Nepal.

Federal Magistrate Raphael considered that the only challenges made to the reasoning of the second respondent were challenges to its fact‑finding process and hence he dismissed the application as not revealing any jurisdictional error.  Justice Graham agreed.

The applicant wishes to ventilate five grounds of appeal in this Court were special leave to be granted.  The first and second grounds allege that Justice Graham incorrectly found that the second respondent had not breached respectively section 429 and section 425 of the Migration Act 1958 (Cth). Neither court below mentioned those sections and they were not asked to deal with any submission about them. The third ground alleges that Justice Graham incorrectly found that the second respondent had not denied procedural fairness. He made no such finding and neither he nor Federal Magistrate Raphael was asked to deal with the subject.

The fourth ground alleges that the second respondent did not consider independent documents provided to it.  In fact it did, although it considered them unreliable.  The fifth ground alleges that the Federal Court “failed to address the issues in accordance with the law that were raised and submitted to it”.  This identifies no point on which success is possible.

In his written case, handed up this morning, that is to say the written case on which he would rely if the application were reinstated, the applicant advances various contentions to the effect that the second respondent failed to investigate his claims.  There is no evidentiary material to support this.  The submissions made centre on complaints of factual error, but reveal no jurisdictional error.

To grant the application would be futile.  It must therefore be dismissed.  I order that the application be dismissed with costs.

AT 9.12 AM THE MATTER WAS CONCLUDED