Applicant A189/2003 v MIMIA & Ors [2005] HCATrans 684 (8 September 2005)

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Applicant A189/2003 v MIMIA & Ors [2005] HCATrans 684 (8 September 2005)

Last Updated: 20 September 2005

[2005] HCATrans 684

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A25 of 2005

B e t w e e n -

APPLICANT A189/2003

Applicant

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

JOHN LYNCH (MEMBER REFUGEE REVIEW TRIBUNAL)

Second Respondent

PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL

Third Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 SEPTEMBER 2005, AT 9.19 AM

Copyright in the High Court of Australia

__________________

GUMMOW J: The applicant is a citizen of Sri Lanka of Tamil ethnicity who has also been accorded citizenship status in India. He arrived in Australia in 2001 and claims to be entitled to refugee status by reason of a well-founded fear of persecution, for reasons of an actual or imputed political opinion and of race, by both Sri Lankan authorities and the Liberation Tigers of Tamil Eelam (“the LTTE”). He also fears returning to India, as he entered India unlawfully in 1985 and obtained an Indian passport on false pretences. The applicant claims that he may be exposed by extortionists in India and thus deported to Sri Lanka.

The Refugee Review Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa. The Tribunal found that, as the holder of a valid Indian passport, the applicant could live peacefully in other parts of India besides Tamil Nadu, where his family lived. Moreover, the Tribunal was not satisfied that, if the applicant returned to Sri Lanka, he would not be able to establish to the authorities there the circumstances of his residence in India and his non-involvement with the LTTE.

The applicant sought review of the Tribunal’s decision in the Federal Court (Selway J). The Court dismissed his application on the basis that the applicant had not shown jurisdictional error in the Tribunal’s decision. Thereafter, the applicant appealed to the Full Court of the Federal Court (Cooper, Marshall and Mansfield JJ), arguing that the Tribunal had failed to consider the circumstances of, and the consequences attendant upon, his unlawful entry into India. This appeal was dismissed.

We have reviewed the applicant’s written case and the decisions of the Tribunal, the Federal Court and the Full Court. There are insufficient prospects of
success in any appeal to this Court from the decision of the Full Court of the Federal Court. Accordingly, special leave to appeal is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application for special leave. I publish that disposition signed by Kirby J and myself.

AT 9.22 AM THE MATTER WAS CONCLUDED