SZIMY v MIAC & Anor

[2007] HCATrans 728

[2007] HCATrans 728

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S127 of 2007

B e t w e e n -

SZIMY

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, 6 DECEMBER 2007, AT 9.16 AM

Copyright in the High Court of Australia

KIRBY J:   The applicant is a national of the People's Republic of China.  She arrived in Australia in July 2005 and promptly applied for a protection visa, claiming to be a "refugee" entitled, as such, to protection under the Migration Act 1958 (Cth) ("the Act"). In October 2005, a delegate of the respondent Minister refused the application. The applicant sought judicial review in the Federal Magistrates Court. In October 2006 Driver FM rejected the application for review. That decision was affirmed on appeal to the Federal Court of Australia by Conti J, exercising the appellate jurisdiction of that court.

The applicant has now sought special leave to appeal to this Court.  In our opinion, her application should be refused.

The foundation for the applicant's claim for protection was the assertion that she was a Falun Gong practitioner. However, before the Tribunal, she did not indicate a knowledge of that practice such as to convince the Tribunal that she was a genuine practitioner. The Tribunal concluded that this opinion was reinforced by the applicant's conduct after her arrival in Australia. She had not sought to establish contact with Falun Gong practitioners in Australia. Her attempts to explain this course of conduct were rejected by the Tribunal which therefore rejected her claim under the Act.

In the Federal Magistrates Court, the applicant complained of bias on the part of the Tribunal and breach of ss 91R and 424A of the Act. These complaints were rejected and the grounds of rejection do not present any reasonable prospect of a successful challenge in this Court.

In his reasons, Conti J concluded that he was not persuaded of any jurisdictional error on the part of the Tribunal or of the Federal Magistrate.  The applicant seeks to challenge these determinations.  However, effectively, her claim foundered on the adverse determination of the merits by the Tribunal.  Judicial review is not available, as such, to provide a merits review either in the courts below or in this Court.  The application for special leave is therefore dismissed.

Because the applicant is unrepresented and has filed a written case, her application has been dealt with under Rule 41.10 of the High Court Rules.  Pursuant to Rule 41.10.5 of those Rules, we direct the Registrar to draw up, sign and seal an order dismissing the application.  I now publish that disposition signed by Justice Heydon and myself.

AT 9.18 AM THE MATTER WAS CONCLUDED