SZILK v MIAC

[2007] HCATrans 671

[2007] HCATrans 671

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S84 of 2007

B e t w e e n -

SZILK

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

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 15 NOVEMBER 2007, AT 9.26 AM

Copyright in the High Court of Australia

GUMMOW J: The applicant, a citizen of the People's Republic of China, applied for a protection visa on 27 May 2005. A delegate of the first respondent refused her application on 18 August 2005. The applicant claimed, first, to be a Falun Gong practitioner. Subsequently she claimed to adhere to the Tien-Tao or I-Guan-Tao. The applicant claimed to have been mistreated by the police on account of her involvement with Tien-Tao. The Refugee Review Tribunal ("the Tribunal") rejected her application on 11 January 2006. The Tribunal found that the applicant had not been a Tien-Tao practitioner in China. Further, the applicant had not satisfied the Tribunal that, for the purposes of s 91R(3) of the Migration Act 1958 (Cth) ("the Act"), she had not participated in Tien-Tao practices in Australia solely for the purpose of strengthening her claim to refugee status.

In the Federal Magistrates Court Smith FM dismissed the applicant's application. The Tribunal's decision was open to it on the available material and was not affected by jurisdictional error. The country information used was covered by the exception in s 424A(3)(a) of the Act, and there was no breach of s 425 of the Act.

Siopis J dismissed the applicant's appeal to the Federal Court on 23 February 2007. His Honour agreed with the Federal Magistrate. The Tribunal was under no requirement to inquire further into the identity of the applicant. There was no breach of s 425 of the Act and any reliance by the Tribunal on inconsistencies between the applicant's visa application and her evidence before the Tribunal was captured by the exception in s 424A(3)(b).

The applicant's case before this Court discloses no question of law that would justify a grant of special leave, and shows no cause to doubt the correctness of the decisions below.  There would be insufficient prospects of success on any appeal to this Court.  Special leave is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish the disposition signed by Justice Kiefel and myself.

AT 9.28 AM THE MATTER WAS CONCLUDED