SZHZY v MIMA & Anor

[2007] HCATrans 726

[2007] HCATrans 726

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S124 of 2007

B e t w e e n -

SZHZY

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
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 DECEMBER 2007, AT 9.10 AM

Copyright in the High Court of Australia

KIRBY J:   The applicant is a national of Bangladesh.  He arrived in Australia in July 2005 and promptly made an application for a protection visa, claiming to be a refugee in accordance with the Migration Act 1958 (Cth) ("the Act"). In September 2005, a delegate of the respondent Minister refused the application. The applicant then sought review by the Refugee Review Tribunal ("the Tribunal").

In November 2005, the Tribunal affirmed the delegate's decision.  The applicant sought judicial review by the Federal Magistrates Court.  That Court, in May 2006, set aside by consent the decision of the first Tribunal and remitted the matter for reconsideration.

This action led to the rehearing of the applicant's case before the Tribunal, differently constituted. It notified the applicant that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal therefore invited the applicant to comment on that information. The applicant did not do so. Nor did the applicant attend the hearing in order to give oral evidence, notwithstanding his acceptance of the Tribunal's invitation to attend. Accordingly, pursuant to s 426A of the Act, the Tribunal proceeded to determine the application without taking any further action to enable the applicant to appear before it. In the result, the Tribunal rejected the application, concluding that the applicant's claims were fabricated and there was no real chance that the applicant would face persecution for reasons of political opinion.

Essentially, the applicant's case before the Tribunal was that he had become active in the Awami League and for that reason had been subjected in Bangladesh to assault by activists of the competing Bangladesh National Party.  The Tribunal concluded that the evidence provided by the applicant failed to demonstrate any substantial engagement in political activities or convincing association with the Awami League.  The Tribunal concluded that, on his own account, the applicant was but a minor political activist.  It decided that his claim of fear of persecution was fanciful and not made out. 

From this decision, based wholly on the merits and apparently observing carefully the requirements of procedural fairness, the applicant sought judicial review. That application was refused in November 2006 by Scarlett FM. That decision was affirmed in February 2007 by the Federal Court of Australia, where Spender J exercised the appellate jurisdiction of that Court. Important to the decisions of both courts below was the failure of the applicant to identify any information to which s 424A of the Act would apply, so as to attract a basis for judicial intervention.

The applicant's draft notice of appeal is of a template variety, with which this Court has become familiar, following the decisions of the Court in the Muin and Lie proceedings (Muin v Refugee Review Tribunal (2002) 76 ALJR 966; 190 ALR 601).

The applicant has not identified any errors of jurisdiction, law or procedure on the part of the Tribunal or the courts below.  There would be no reasonable prospects of success, were special leave to appeal granted by this Court.  In effect, the applicant is simply seeking to reopen the factual determination made by the second Tribunal in his case.  That is not relief available from this Court.  The application for special leave should be refused.

Because the applicant was unrepresented and has filed a written case, his application has been dealt with in accordance with Rule 41.10.  Pursuant to Rule 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.  I now publish that disposition signed by Justice Heydon and myself.

AT 9.14 AM THE MATTER WAS CONCLUDED