SZAFP v MIMIA [2005] HCATrans 400 (16 June 2005)

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SZAFP v MIMIA [2005] HCATrans 400 (16 June 2005)

Last Updated: 28 June 2005

[2005] HCATrans 400

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S386 of 2004

B e t w e e n -

SZAFP

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 16 JUNE 2005, AT 9.28 AM

Copyright in the High Court of Australia

GLEESON CJ: The applicant is a citizen of the Ukraine. She claims to be entitled to refugee status by reason of a well-founded fear of persecution on grounds of her political opinion or membership of a particular social group, being “women” or “Ukrainian women”.

The Refugee Review Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa. The Tribunal accepted elements of the applicant’s claims, including that she had been detained and sexually assaulted by Ukrainian police; that after lodging a complaint she had been contacted by Ukrainian authorities; that she had been subsequently contacted again by persons unknown; and that, on each occasion, it was suggested to her that she was making false allegations about her mistreatment by police. However, the Tribunal rejected key elements of the applicant’s claims that would link her mistreatment, and that of some of her friends, to her complaint against the Ukrainian police.

The Tribunal appears to have been inclined against the proposition that there existed a particular social group comprising “women” or “Ukrainian women” of which the applicant could have been a member. Rather, the Tribunal considered the police officer’s violence towards the applicant as having been “motivated by personal reasons” rather than Convention reasons. The Tribunal therefore rejected the applicant’s claim to be entitled to refugee status.

The applicant sought review of the Tribunal’s decision in the Federal Magistrates Court. That Court dismissed the application on the basis that the applicant had shown no jurisdictional error in the Tribunal’s decision. The Federal Court (Whitlam J) dismissed an appeal under O 52 r 38A(1)(c) of the Federal Court Rules, as the applicant failed to appear at the hearing.

There is thus no occasion for consideration of arguments based upon the reasoning in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 78 ALJR 854; 206 ALR 242. The decision from which special leave to appeal is sought is the decision of Whitlam J to dismiss the appeal summarily. That decision was interlocutory and discretionary, and does not raise a question appropriate to the grant of special leave. Accordingly, special leave to appeal is refused with costs.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing this application for special leave with costs.

AT 9.30 AM THE MATTER WAS CONCLUDED