SZDQK v MIMIA [2005] HCATrans 698 (8 September 2005)

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SZDQK v MIMIA [2005] HCATrans 698 (8 September 2005)

Last Updated: 20 September 2005

[2005] HCATrans 698

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S259 of 2005

B e t w e e n -

SZDQK

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

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 9.48 AM

Copyright in the High Court of Australia

GUMMOW J: The applicant is a citizen of India. He arrived in Australia as a temporary business entrant in June 2003 and claims to be entitled to refugee status by reason of a well-founded fear of persecution on grounds of his involvement in the Communist Party of India (Marxist) (“the CPI(M)”). In particular, the applicant claims that he had been arrested, beaten and tortured following a rally that he had been involved in to protest against a privatisation program introduced by the Congress Party and that he lost his job because of pressure applied to his employer by the Congress Party.

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 that the applicant was a member of the CPI(M). Given inconsistencies in the evidence of the applicant, the Tribunal concluded adversely on his credibility, noting also that, throughout the period of the events claimed by the applicant to have occurred, the CPI(M) was either in government or was the main opposition party in his home state of Kerala.

The applicant sought review of the Tribunal’s decision in the Federal Magistrates Court, alleging, among other things, that bias had attended that decision. The Court dismissed his application on the basis that the applicant had not shown jurisdictional error in the Tribunal’s decision. An appeal to the Federal Court (Tamberlin J) was dismissed.

We have reviewed the applicant’s written case and the decisions of the Tribunal, the Federal Magistrates Court and the Federal Court. It is apparent from the applicant’s written case that he seeks, in large part, a merits review of the Tribunal’s decision. The prospects of success in any appeal from the Federal Court to this Court are therefore slim. Accordingly, special leave to appeal is refused.

The Court has been notified by the solicitor for the respondent Minister that the applicant in this matter departed Australia on 28 August and does not hold a visa to return. Nevertheless, we proceed pursuant to r 41.10.5 to 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 9.50 AM THE MATTER WAS CONCLUDED