SZHZI v MIMA & Anor

[2007] HCATrans 220

[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

Copyright in the High Court of Australia

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