SZIJA v MIMA & Anor

[2007] HCATrans 360

[2007] HCATrans 360

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S431 of 2006

B e t w e e n -

SZIJA

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 9.45 AM

Copyright in the High Court of Australia

KIRBY J:   The applicant is a citizen of India.  He arrived in Australia in August 2005 and applied for a protection visa on 12 September 2005.  On 20 October a delegate of the first respondent refused the application.  He applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. 

The Tribunal affirmed the decision of the delegate not to issue a protection visa.  The applicant had claimed to have been active in Indian politics as a student, joining the Telugu Desam Party ("the TDP"), which was the ruling party in his state.  As a result, he claimed to have had a number of physical clashes with members of other parties and to have received death threats.  He claimed that when his party lost the election in 2004, the new government had induced the police to bring false cases against, and overlook the killing of, members of the TDP.  He also believed he had become a target as a result of his membership, and later, presidency, of an organization known as the ABVP, which represented and lobbied on behalf of disadvantaged students. 

The Tribunal invited the applicant to attend a hearing, which he initially accepted.  Close to the hearing date, the applicant contacted the Tribunal and gave notice that he would not attend the hearing because he was in financial difficulty and suffering depression.  He asked that the Tribunal consider his case in his absence, and make a decision accordingly. 

The Tribunal found that the applicant's claims were vague and unsubstantiated.  It was not satisfied that the applicant was a person who would be persecuted in India because of his political opinion.  Accordingly, the Tribunal said, Australia did not owe protection obligations to the applicant.

The applicant sought judicial review in respect of this decision by the Federal Magistrates Court (Driver FM).  In dismissing the application, the Federal Magistrate held that the applicant's arguments, that the Tribunal had not adequately set out its reasons for its decision and had failed properly to exercise its jurisdiction by determining the matters in issue, could not be sustained.  The Federal Magistrate concluded that the applicant had not advanced any reasonably arguable case.

The applicant then sought leave to appeal from that decision to the Federal Court (Tracey J). In dismissing the application for leave, the Court held that the argument that the Tribunal had contravened s 430(1)(b) of the Migration Act 1958 (Cth) by failing to speculate, based on the information before it, whether the applicant faced a real chance of persecution, was unable to be sustained.

The Court held that there was no error in the Tribunal's decision, and that there is no obligation stemming from s 430(1)(b) for a Tribunal or Court to speculate in cases in which there is no evidentiary foundation for the drawing of relevant inferences.

The applicant now seeks special leave to appeal to this Court.  His grounds of appeal are disjointed and have the appearance of having been adapted from cases on facts far removed from those he asserts.  They identify no arguments which would have any prospects of success.  The application must, therefore, be dismissed.

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 9.49 AM THE MATTER WAS CONCLUDED