SZHZI v MIMA & Anor

[2007] HCATrans 220

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S317 of 2006

B e t w e e n -

SZHZI
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, 23 MAY 2007 AT 9.16 AM

KIRBY J: The applicant, a national of China, arrived in Australia in December 2004. He promptly applied for a protection visa, claiming to be a "refugee" within the Refugees Convention and Protocol, as given effect by Australian law.

The basis of the applicant's claim was that he was a Christian activist in an underground church in China and had a well-founded fear of persecution for reasons of religion were he to be returned to China. His application was refused by the delegate of the Minister.

The applicant sought review of the delegate's decision in the Refugee Review Tribunal ("the Tribunal"). That body dismissed his application expressing the "strong impression" that the applicant was not telling the truth. The Tribunal ascribed this conclusion to various things, including what it found to be the applicant's lack of basic knowledge of Christian beliefs and practices. It was suggested that the applicant did not understand the concept of the Holy Trinity.

The applicant sought judicial review from the Federal Magistrates Court. As Driver FM observed, some of the Tribunal's questions seemed over‑zealous and the Tribunal's own understanding of the Trinity (based apparently on Internet materials) was itself described as questionable. His Honour noted the applicant's assertion of confusion concerning the word "church" in the Chinese language. He recorded an impression that the applicant was "an exceptionally diffident person". Allowing for all these considerations, Driver FM ultimately decided that no jurisdictional error was shown in the Tribunal's decision. That conclusion was confirmed on appeal to the Federal Court of Australia by Tracey J, exercising the appellate jurisdiction of that Court.

The applicant has now sought special leave to appeal to this Court. Amongst other things, he relied on a suggested failure of the Tribunal to comply with s 424A(1) of the Migration Act 1958 (Cth). We have carefully considered the applicant's submissions, especially because we have some sympathy for the remarks of Driver FM. However, like him and Tracey J, we can find no reasonably arguable jurisdictional or legal error that would warrant consideration of the matter by this Court. In effect, the applicant is trying to reargue the factual merits of his claim. That is not the proper function of judicial review. The application must therefore be dismissed.

Because the applicant is unrepresented, it 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. I publish that disposition signed by Justice Callinan and myself.

AT 9.18 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicants, SZHZI and MIMA, sought judicial review of a decision made by the Minister for Immigration and Multicultural Affairs (MIMA) to refuse their applications for a protection visa. The applicants, who were citizens of China, claimed to fear persecution in their home country due to their involvement in the Falun Gong movement. The primary dispute concerned whether the Minister's decision had adequately considered the applicants' claims of persecution and whether the decision was affected by an error of law. The matter was heard by Kirby and Callinan JJ of the High Court of Australia.

The central legal issues before the High Court were whether the Minister, in assessing the protection visa applications, had properly considered the evidence presented by the applicants regarding their fear of persecution, and whether the Minister's delegate had failed to take into account relevant considerations or taken into account irrelevant considerations, thereby vitiating the decision. Specifically, the court was asked to determine if the delegate's assessment of the applicants' claims was reasonable and consistent with the requirements of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

The court's reasoning focused on the principles of administrative law, particularly the duty of an administrative decision-maker to consider all relevant evidence and to provide adequate reasons for their decision. Kirby and Callinan JJ examined the delegate's reasons for refusing the visa applications and found that they did not sufficiently address the specific claims made by the applicants concerning the nature and likelihood of persecution they would face if returned to China. The judges held that the delegate's assessment was flawed because it did not adequately engage with the evidence of the Falun Gong movement's persecution in China and the applicants' individual circumstances. The court applied the principles established in cases concerning the assessment of refugee claims and the requirements for valid administrative decision-making, emphasizing the need for a thorough and reasoned evaluation of the evidence.

The High Court allowed the appeal, quashed the decision of the Minister for Immigration and Multicultural Affairs, and remitted the applications for a protection visa to the Minister for reconsideration according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established