SZBFV v MIMIA [2005] HCATrans 868 (20 October 2005)

--

SZBFV v MIMIA [2005] HCATrans 868 (20 October 2005)

Last Updated: 4 November 2005

[2005] HCATrans 868

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S360 of 2005

B e t w e e n -

SZBFV

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 20 OCTOBER 2005, AT 11.02 AM

Copyright in the High Court of Australia

McHUGH J: The applicant is a national of the People’s Republic of China. He claims to fear persecution on the basis of his membership of Falun Gong. On 30 June 2003, the Refugee Review Tribunal affirmed the decision of the Minister’s delegate to refuse to grant the applicant a protection visa. On 10 March 2005 the Federal Magistrates Court dismissed an application for a review of the Tribunal’s decision, and on 5 July 2005, the Federal Court dismissed an appeal against the Federal Court’s decision.

The applicant did not attend his Tribunal hearing. The Tribunal had made several attempts to contact the applicant, both by letter sent to the addresses he had provided, as well as by telephone. The Tribunal had received from the applicant a notification that he intended to attend the hearing. In its reasons, the Tribunal regretted the applicant’s absence from the hearing because it deprived the Tribunal of the opportunity to question him in relation to several aspects of his claim, in particular the details of his involvement with Falun Gong while in China, and upon his arrival in Australia. Without the benefit of that evidence, the Tribunal found that there was insufficient evidence to make out a claim for a protection visa.

In the Federal Court proceedings the applicant claimed that he had sent a letter to the Tribunal requesting an adjournment of proceedings and that the failure to grant such an adjournment had resulted in a denial of procedural fairness. The Federal Magistrates Court rejected this argument because it found no record that the Tribunal had ever received the letter from the applicant, there being no record of a receipt of the letter in the Court book. The applicant also claimed that the Tribunal’s decision was affected by actual bias. Neither the Federal Magistrates Court nor the Federal Court could find any evidence of bias, nor any other appealable error of law, in the Tribunal’s reasons. The Federal Court carefully considered the applicant’s claim that he did not receive notice of the Tribunal hearing and concluded that the method in which the letter of invitation had been sent satisfied the statutory requirements for deemed receipt contained in ss 441A and 441C(4) of the Migration Act 1958 (Cth).

The applicant’s submissions in this application raise arguments that were correctly dealt with in the Court below. There is nothing in his submissions that substantiates his allegations of actual bias on the part of the Tribunal. As this application has no prospects of success, it must be dismissed.

Under the power conferred by Rule 41.10.5 we direct the Registrar to draw up, sign and seal an order that the application is dismissed. I publish our joint reasons.

AT 11.03 AM THE MATTER WAS CONCLUDED