SZILR v Minister for Immigration and Citizenship

[2008] HCASL 199

SZILR
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 199
S561/2007

1. The applicant is a national of the People's Republic of China.  On his arrival in Australia he claimed protection as a "refugee" pursuant to the Refugees Convention and Protocol.  His application was refused by a delegate of the Minister.  An initial decision of the Refugees Review Tribunal ("the Tribunal") rejecting his application for review of the delegate's decision was set aside, and the matter reheard by a differently constituted Tribunal.  The ground asserted to bring the application within the Convention appears to have been political beliefs or membership of a particular social group.

2. The applicant's case was that he had objected to dangerous and uninsured work conditions to which he had been exposed.  He described an accident in which two workers had been killed.  He said that he had been involved in subsequent protests, which had been put down by police, and the distribution of pamphlets.

3. Whilst the second Tribunal accepted that a serious accident had happened at the applicant's work, it was unconvinced that the applicant had been significantly involved in demonstrations or the preparation of written leaflets and pamphlets, noting that he described himself as functionally illiterate, and claimed to have been recovering from serious injuries at the time.  It also noted that he had been able to leave China without difficulty.

4. The applicant again sought judicial review from the Federal Magistrates Court (Emmett FM). The Federal Magistrate rejected assertions of bias on the part of the Tribunal and could find no other evidence of jurisdictional error. Specifically, she dismissed the suggestion that the Tribunal had misunderstood and misapplied s 424A of the Migration Act 1958 (Cth).

5. The applicant then appealed to the Federal Court of Australia.  In that court, Greenwood J found no error in the reasoning or the conclusion of the Federal Magistrate.  The appeal was therefore dismissed.

6. The application for special leave to appeal to this Court complains of the Federal Court's affirmation of the decisions below. Claims of bias and breach of s 424A of the Act are pressed. These are without substance. There is a glimmer of substance in the suggestion that the Tribunal's reasons might be read as embracing the idea that only well-educated people could organise political activities. Self-evidently, this is not so. But even if this raises a question of bias, we are unconvinced that the Tribunal's reasons reflect an understanding of the evidence so unreasonable as to indicate a misapprehension of the legal questions that were before it. It is always important to remember that judicial review does not exist to encourage pernickety examination of the language used by tribunals. We do not believe that there would be reasonable prospects of success were we to grant special leave. The application is therefore dismissed.

7. Pursuant to Rule 41.10.5 of the High Court Rules we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.

M. D. Kirby
24 April 2008 J. D. Heydon