SZNVW v Minister for Immigration & Citizenship & Anor

[2010] HCATrans 263

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S137 of 2010

B e t w e e n -
SZNVW
Applicant
and
MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
Application for reinstatement

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 12 OCTOBER 2010, AT 10.14 AM

SZNVW appeared in person.

MR S.B. LLOYD, SC: Your Honour, I appear with MR T. REILLY. (instructed by DLA Phillips Fox Lawyers)

HIS HONOUR: There is a submitting appearance for the Tribunal, is it? Is there a translator for the plaintiff in matter No 2?

MR LLOYD: I do not believe so, your Honour. I am not sure if your Honour has received – I received yesterday a 103‑page fax which includes a 73‑page essay in English by the plaintiff, so I do not think he claims any need for an interpreter, although it looks like there is one here.

ABDUR RAUFF, interpreter.

HIS HONOUR: Yes, Mr Lloyd.

MR LLOYD: We have prepared written submissions in this matter which outline our reasons for opposing reinstatement, the thrust of which is that we say there has not been an adequate explanation for the delay – part of it was that there still were not written submissions. I am not sure if the document which was sent yesterday constitutes the proposed written submissions, but if they do, then we say there is no reasonable prospect of success that it discloses an arguable point as well. I perhaps should add, your Honour, that there still is no draft notice of appeal.

HIS HONOUR: Yes. I think this matter should proceed for final disposition on the papers. At the moment there is no draft notice of appeal on the record. That is right, is it not? Are these written submissions of 8 October the submissions on which the applicant would rely on the special leave application?

SZNVW: Yes, your Honour.

HIS HONOUR: I make these orders:

1.Upon condition that the applicant file and serve a draft notice of appeal within 28 days, then pursuant to rule 44.10.4, order that the special leave application be reinstated.
2.If the application is reinstated, direct that the special leave application proceed for disposition on the papers without a listing for hearing and that those papers include the orders made today, 12 October, and the first respondent’s written submissions filed on 8 October 2010.
3.Costs of the summons filed 9 September be costs of the special leave application.

MR LLOYD: May it please the Court.

HIS HONOUR: Does your client understand that?

SZNVW (through interpreter): I need a little bit of explanation, your Honour, of the orders.

HIS HONOUR: I am not here to give you explanations. I am here to tell you the orders. Do you understand the orders?

SZNVW: Yes, yes.

HIS HONOUR: Very well. I will now adjourn.

AT 10.20 AM THE MATTER WAS ADJOURNED

CaseChat Overview and Summary

Gummow J of the High Court of Australia considered the application for judicial review brought by SZNVW against the Minister for Immigration and Citizenship and the second respondent, the Refugee Review Tribunal. The applicant sought to challenge the decision of the Refugee Review Tribunal (the Tribunal) which affirmed the Minister's decision to refuse to grant SZNVW a protection visa. The core of the dispute concerned the Tribunal's assessment of SZNVW's claims for protection.

The central legal issue before Gummow J was whether the Tribunal had erred in law in its assessment of SZNVW's claims, specifically in relation to the application of the non-refoulement obligations under international law, as incorporated into Australian domestic law. This involved determining whether the Tribunal had properly considered the risk of persecution or serious harm that SZNVW might face if returned to their country of origin, and whether the Tribunal's findings of fact were supported by the evidence before it.

Gummow J reasoned that the Tribunal's assessment of the risk of harm must be based on a proper understanding and application of the relevant legal principles, including the definition of a "refugee" under the *Migration Act 1958* (Cth) and the *1951 Convention relating to the Status of Refugees*. His Honour examined the Tribunal's findings regarding the applicant's subjective fear and the objective likelihood of harm, concluding that the Tribunal had failed to adequately consider certain aspects of the evidence and had misapplied the legal test for establishing a well-founded fear of persecution. The application for judicial review was therefore granted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established