SZTQL v Minister For Immigration And Border Protection and Anor

[2015] HCASL 186

SZTQL
v
MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR

[2015] HCASL 186
S130/2015

1. The applicant, a national of Nepal, applies for special leave to appeal from the orders of the Federal Court of Australia (Allsop CJ) dismissing his appeal from the Federal Circuit Court of Australia (Judge Nicholls).  The Federal Circuit Court dismissed the applicant's application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"), affirming the decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa. 

2. An earlier determination of the Tribunal had been set aside by the Full Court of the Federal Court of Australia on the ground that the conduct of the hearing by the first Tribunal member gave rise to a reasonable apprehension of bias.  The application for review was remitted to a differently constituted tribunal for hearing. 

3. Two of the grounds of appeal before the Federal Court are the subject of the present application.  The first ground complained of the impermissible use by the Tribunal of evidence given by the applicant at the first Tribunal hearing.  Allsop CJ rejected this ground, observing that it was open to the Tribunal to take into account inconsistencies in the applicant's evidence given on successive occasions.  The second ground challenged a passage in the Tribunal's reasons, contending that the Tribunal had defined one of his claims too narrowly.  Allsop CJ considered it debateable whether the passage fairly encapsulated the way the matter had been put before the Tribunal.  His Honour considered that it was important to appreciate the full nature of the Tribunal's findings in the paragraphs leading up to the impugned paragraph.  The question had not been raised before the primary judge and there was no evidence of how the matter had been articulated before the Tribunal.  His Honour refused to allow the applicant to rely on this ground. 

4. The applicant does not have legal representation and his application falls to be dealt with under r 41.10 of the High Court Rules 2004 (Cth).

5. The application does not raise any question suitable for the grant of special leave.  The contention that it raises, a question as to the use that a Tribunal may make of the views and findings of a previous Tribunal, is misconceived.  So, too, is the contention that Allsop CJ "merely speculated" that the question of how the applicant's claims were articulated before the Tribunal could have been the subject of evidence.  There are insufficient prospects that an appeal would succeed to justify the grant of special leave.

6. The application is dismissed.

7. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
4 November 2015 S.J. Gageler