SZKET v Minister for Immigration and Citizenship

[2008] HCASL 452

SZKET
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 452
S215/2008

1. The applicant is a national of the People's Republic of China.  He arrived in Australia in 1997 and promptly sought a protection visa, claiming to be a "refugee" within the Refugees Convention and Protocol.

2. In May 1997, a delegate of the Minister refused the application.  That decision was taken to the Refugee Review Tribunal ("the Tribunal").  In September 1998, that Tribunal refused review and affirmed the decision of the delegate.

3. It was not until February 2008 that the Federal Magistrates Court (Scarlett FM) considered and decided the applicant's application for judicial review of the Tribunal's decision. The long delay appears to have been the result of the failure of the applicant to take prompt steps to seek review of the Tribunal's decision before he was placed in immigration detention in 2005. There is then still further delay whilst the applicant sought the intervention of the Minister pursuant to s 417 of the Migration Act 1958 (Cth) ("the Act"). When this proved unfruitful, he commenced proceedings in the Federal Magistrates Court.

4. When those proceedings failed, the applicant appealed to the Federal Court of Australia.  In that Court, McKerracher J found no error warranting the intervention of the Federal Court.  The appeal was dismissed.  The applicant now seeks special leave to appeal to this Court. 

5. The basis of the applicant's original claim for protection was his alleged fear of persecution because of his anti-communist opinions and because of the support he gave to the pro-democracy movement in China in 1989.  The applicant claimed to have left China on a false passport and to have been involved in an underground secret organisation intent on overthrowing the government.  He asserted that he had been detained by the Public Security Bureau and was therefore at real risk of persecution if he returned to China.

6. Whilst accepting that the applicant may have participated in the pro-democracy demonstrations in China, on the basis of independent country information the Tribunal concluded that, for anything that he may have done in 1989, the applicant would not (at the time of its decision) be of any interest to the Chinese authorities.  It did not accept his generalised claims about anti-government activity and noted discrepancies between his original application and such claims.

7. Essentially, the Federal Magistrates Court refused relief because of the very great delay of seven years in seeking judicial review.  Any procedural errors that had earlier occurred were, on this approach, out-weighed by the discretionary considerations warranting rejection of the claim.

8. The Federal Court, on appeal, was not convinced of error in the approach of the Federal Magistrate.  The reasons expressed by the Federal Court do not, in the circumstances of this case, suggest any need, or justification, for the intervention of this Court.

9. In this Court, the applicant has now sought to add new grounds including a claim that he is a Falun Gong practitioner and a claim based on s 427 of the Act. None of these grounds has reasonably arguable merit. Ultimately, the rejection of the applicant's case depended on a rejection of his credibility by the Tribunal.

10. An appeal does not enjoy reasonable prospects of success.  Special leave is therefore refused and the application is dismissed.

11. 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
7 August 2008 J.D. Heydon