SZJCB v MIAC & Anor

[2007] HCATrans 724

[2007] HCATrans 724

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S94 of 2007

B e t w e e n -

SZJCB

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 9.05 AM

Copyright in the High Court of Australia

KIRBY J:   This is an application for special leave to appeal from orders of the Full Court of the Federal Court of Australia.

Those orders arose in proceedings in which the applicant contested administrative decisions, refusing her a protection visa under s 65 of the Migration Act 1958 (Cth) ("the Act").

The applicant is a national of the People's Republic of China.  She arrived in Australia in December 2005.  She promptly applied for a protection visa which was refused in February 2006 by a delegate of the respondent Minister.

The basis of the applicant's claim was her assertion that she was a practitioner of Falun Gong.  On this basis, the applicant alleged that she was detained for a month by police in China and had been tortured and subjected to a regime of reporting to police.

The delegate refused the claim.  A review by the Refugee Review Tribunal ("the Tribunal") was unavailing.  That Tribunal found that the applicant was not a genuine Falun Gong practitioner; that her evidence of her arrest was unconvincing; and that her other evidence was unsatisfactory.

From the refusal of relief by the Tribunal, the applicant sought judicial review in the Federal Magistrates Court.  Federal Magistrate Emmett found no basis for judicial review.  In effect, she interpreted the applicant's application as one that endeavoured to raise complaints on the merits whilst presenting no errors of a jurisdictional, legal or procedural nature.

It was from the orders of Emmett FM that the applicant appealed to the Full Court of the Federal Court. That Court's appellate jurisdiction was exercised by Kenny J. Her Honour rejected arguments of jurisdictional error and arguments based on s 424A(1) of the Migration Act 1958 (Cth).

The applicant was unrepresented in the Tribunal and court below. We have therefore examined the record carefully to see if any error could be detected that would attract the intervention of this Court. We find no such error. The applicant's additional complaints of bias on the part of the Tribunal and contravention of s 91R of the Act, raised for the first time in the application for special leave to appeal to this Court, do not disclose a basis for intervention by this Court. In substance, the applicant wants to secure a merits review of the Tribunal's findings. As such, this cannot be provided in proceedings by way of judicial review. The application for special leave must therefore be refused.

Because the applicant was unrepresented, her application has been dealt with in accordance with Rule 41.10.5 of the High Court Rules.  Pursuant to those Rules, we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I now publish that disposition signed by Justice Heydon and myself.

AT 9.08 AM THE MATTER WAS CONCLUDED