SZIER & Anor v MIAC & Anor

[2008] HCATrans 38

[2008] HCATrans 038

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S232 of 2007

B e t w e e n -

SZIER

First Applicant

SZIES

Second Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

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, 7 FEBRUARY 2008, AT 9.09 AM 

Copyright in the High Court of Australia

KIRBY J:   The applicants are husband and wife and are nationals of India.  They arrived in Australia in September 2005 and applied for protection visas on the basis that they were "refugees" within the Refugees Convention and Protocol.  These are given effect in Australia by the Migration Act 1958 (Cth) ("the Act"). It may be noted that only the applicant husband ("the applicant") made claims under the Convention, the wife's claim being derivative.

The applications were refused by a delegate of the Minister.  An application to the Refugee Review Tribunal ("the Tribunal") was unsuccessful.  So was an application to the Federal Magistrates Court (Smith FM) for judicial review.  An appeal to the Federal Court of Australia was refused by Ryan J, exercising the appellate jurisdiction of that Court.  Now the applicant seeks special leave to appeal to this Court.

The foundation for the claim at first instance was that the applicant feared persecution because his business had been targeted by "thugs" demanding money from him.  It was alleged that the police failed properly to respond to these complaints, thereby encouraging the "thugs".  This caused the applicant and his wife to leave India.  They left behind two young children who are still living in India.

The applicant claimed that the children had been refused visas to come to Australia with their parents.  The Tribunal sought details of the application for visas.  No record of any such application appeared available.  Because the wife did not claim persecution, the Tribunal also sought information on why she had not remained in India with the children.

At a hearing before the Tribunal, the applicant claimed to be unwell.  A procedure was proposed whereby the wife (who spoke better English) would give evidence, with the applicant having an opportunity later to hear and comment on a tape recording.  However, when the hearing got underway, the applicant stayed and interrupted and gave evidence from time to time.  Essentially, the Tribunal rejected the application on the footing that any violence directed at the applicant and his business was not based on any Convention ground.  Although it was mentioned that the "thugs" were Islamic and the applicant Hindu, no religious element appeared to be relevant.  Thus, the claim was rejected on the facts and that rejection is unimpeachable.

In these circumstances it was inevitable that the application for judicial review would fail, as it did before both Smith FM and Ryan J. No legal or jurisdictional error is apparent. No Convention ground is apparent. The applicant and his wife have no arguable basis for their claim against Australia based on the Convention and Protocol, given effect by the Act. An appeal to this Court would not have any prospects of success.

Because the applicant was unrepresented and had filed a written case, his application was 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 Heydon J and myself.

AT 9.11 AM THE MATTER WAS CONCLUDED