SZHZX v MIMA & Anor

[2007] HCATrans 363

[2007] HCATrans 363

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S438 of 2006

B e t w e e n -

SZHZX

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 9.57 AM

Copyright in the High Court of Australia

KIRBY J:   The applicant, a citizen of India, arrived in Australia on 11 June 2005 and immediately applied for a protection visa.  On 11 August 2005 a delegate of the first respondent refused the application.  The applicant claims to be a member and activist of Shiv Sena organization, and to have been tortured and threatened by authorities as a result.

The Refugee Review Tribunal ("the Tribunal") accepted that it was possible that the applicant had some link with Shiv Sena in the past but expressed doubt whether he was a member, having regard to his unfamiliarity with it and its aims.  The Tribunal was not satisfied that his membership card was genuine because initially he had claimed that it was issued four years before and had been kept at his home all that time.  However when asked why the photograph on the card was identical to the one on his application for a protection visa (taken not more than nine months earlier), he conceded that the Shiv Sena card had been issued shortly before he left India.  Even if he did have a link with Shiv Sena, the Tribunal said, it did not accept that he had been threatened as he claimed as he had remained at his home, where the threats were made.  The Tribunal did not accept that he was at risk of politically motivated harm and, accordingly, dismissed his application.

The applicant sought review of that decision by the Federal Magistrates Court (Scarlett FM).  He claimed there that the Tribunal had made a jurisdictional error by making erroneous findings of fact from which it drew adverse inferences as to his credibility and that its findings were unreasonable, illogical or not supported by the evidence.  Scarlett FM dismissed these submissions as being without basis, stating that he was unable to discern any jurisdictional error.  Accordingly, the application to the Federal Magistrates Court was dismissed.

The applicant appealed to the Federal Court (Nicholson J, exercising its appellate jurisdiction).  The applicant claimed that the Federal Magistrate erred in failing to find a breach of s 424A of the Migration Act and a denial of natural justice by the Tribunal.  Neither of those issues had been before the Federal Magistrate.  The breach of s 424A was particularised as references to statements by the Tribunal that the witness whom the applicant had called had given information about him different from the evidence the applicant had given about his ability to relocate within India; that it was not satisfied that the applicant held a genuine membership card; and that he had not been threatened.

Nicholson J concluded that the evidence given by the witness called by the applicant could not, and did not, form part of the findings or reasons of the Tribunal and, consequently, s 424A had no application.  Moreover, the Tribunal's antecedent finding that the applicant was not persecuted obviated any need to consider relocation.  Evidence with respect to the applicant's membership card was within the exception provided for by s 424A(3)(b), as the adverse conclusion about him was based on inconsistency in his own evidence.  Section 424A(3)(b) also applied to the Tribunal's unwillingness to accept that the applicant had been threatened in 2004.  Accordingly, there was no failure of compliance with s 424A.  The other complaints by the applicant went to the factual merit of his case only.  For those reasons the appeal was dismissed.

The applicant's proposed notice of appeal to this Court contends that the Federal Court erred in failing to find that the Tribunal erred by not complying with s 424A.  The non-compliance is particularised in the same fashion as in the Federal Court.  The applicant's written case also contains a bare assertion that the Tribunal did not comply with s 91R of the Migration Act and denied him natural justice.

The applicant has not advanced any reason to doubt the correctness of the decision of the Federal Court and no question of law suitable for a grant of special leave to appeal is apparent.  Special leave is refused.

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 10.02 AM THE MATTER WAS CONCLUDED