SZIAA v MIMA & Anor

[2007] HCATrans 224

[2007] HCATrans 224

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S326 of 2006

B e t w e e n -

SZIAA

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 9.25 AM

Copyright in the High Court of Australia

KIRBY J:   The applicant claims to be a citizen, and former resident, of India.  He arrived in Australia on 10 May 2004.  Shortly thereafter he applied to the first respondent for a protection visa.  The substance of the applicant's claim was that he was threatened because he assisted in arranging a marriage contrary to the wishes of the bride's family who belonged to a different caste than the bride's husband.

On 1 July 2005 a delegate of the first respondent ("the delegate") refused the application.

The applicant applied to the Refugee Review Tribunal ("the Tribunal") for a review of that decision.  The Tribunal affirmed the delegate's decision.  During the hearing, the Tribunal explained to the applicant that the cause of his persecution, if he were to succeed, had to be for a Convention reason.  The Tribunal could find no evidence of that.  It asked the applicant whether he claimed persecution because he was a member of a particular social group.  The applicant responded that he did not belong to any group and would not be making that claim.

An unsuccessful application was then made to the Federal Magistrates Court for a review of the Tribunal's decision.  The applicant submitted that the Tribunal did not consider his claims in detail and that it should have given him the benefit of the doubt.  The Federal Magistrates Court (Driver FM) was of the view that the Tribunal had given proper consideration to the applicant's case:  it accepted some parts of the applicant's evidence and while it rejected other parts because of a lack of substantive evidence, it had been prepared to give the applicant the benefit of the doubt, and had addressed his claims in full.  In the result, Driver FM was of the opinion that it was open, on the material, for the Tribunal to conclude that the dispute in this case was personal and not caste-related.  That was the basis upon which he dismissed the application for judicial review.

The applicant appealed against the decision of the Federal Magistrate to the Federal Court.  The applicant appeared to challenge the conclusion of the Federal Magistrate that a refugee may be persecuted, not because of his affiliation to a particular social group, but because of the affiliation of the persecutor to a particular social group.  His Honour found that the Federal Magistrate's comments were inconsistent with authority (citing McHugh J in Applicant A and Anor v Minister for Immigration and Ethnic Affairs and Anor (1997) 190 CLR 225 at 257-8) and with the language of the Convention.

The applicant further complained that the Tribunal failed to find that the applicant was not afforded state protection.  His Honour rejected this submission as it related to a factual finding of the Tribunal which would only be the subject of a challenge if there was no evidence upon which the Tribunal could make it.  In his Honour's opinion there was such evidence.

The applicant seeks special leave to appeal to this Court.  His draft notice of appeal repeats the claims made before the Federal Magistrates Court and the Federal Court.  He further complains that the Tribunal failed to accord him natural justice and contends that the Federal Court dismissed his case in haste and failed to appreciate the errors made by the lower court.

The applicant has not advanced any questions of law that would justify a grant of special leave to appeal.  The Tribunal gave adequate consideration to the applicant's case on the merits.  Even if the Federal Magistrate erred in his formulation of the test of persecution (a matter which it is unnecessary for us to consider, if error there was) it was one favourable to the applicant.  It did not affect the ultimate outcome before the Federal Magistrate.

Special leave to appeal must be 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. I publish that disposition signed by Justice Callinan and myself.

AT 9.29 AM THE MATTER WAS CONCLUDED