SZASF v MIMIA [2005] HCATrans 903 (9 November 2005)

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SZASF v MIMIA [2005] HCATrans 903 (9 November 2005)

Last Updated: 18 November 2005

[2005] HCATrans 903

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S441 of 2004

B e t w e e n -

SZASF

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 WEDNESDAY, 9 NOVEMBER 2005, AT 9.36 AM

Copyright in the High Court of Australia

GUMMOW J: The applicant is a citizen of Bangladesh who arrived in Australia in December 2000. He claims to be entitled to refugee status on account of a well-founded fear of political persecution.

The Refugee Review Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa. Prior to a hearing, the applicant’s advisor informed the Tribunal that the applicant was suffering from mental illness and would be unable to attend a hearing. The Tribunal postponed the hearing as requested. When he appeared at a hearing, the applicant was unable to assist the Tribunal with oral evidence. The Tribunal subsequently made arrangements for the applicant to be examined by a psychiatrist. The psychiatrist’s report, which was not disclosed to the applicant, indicated a view that the applicant did not suffer from mental illness and that he was fit for a hearing. The Tribunal informed the applicant of the substance of the report and again invited the applicant to a hearing, but he declined to attend. The Tribunal then rejected the applicant’s claims on the basis that the written evidence provided by the applicant was inadequate and lacked credibility. The Tribunal was unable to be satisfied on the material before it that the applicant had a well-founded fear of persecution should he return to Bangladesh.

The applicant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court, alleging breach of ss 424A and 425 of the Migration Act 1958 (Cth) in relation to the psychiatrist’s report. The Federal Magistrate dismissed the application as disclosing no jurisdictional error in the Tribunal’s decision. An appeal to the Federal Court was dismissed by Wilcox ACJ. The Federal Magistrate and Wilcox ACJ noted that the applicant had had an opportunity to comment upon the substance of the report, despite not receiving a copy of the report itself, but had declined to do so.

We have considered the parties’ written submissions and the decisions of the Tribunal, the Federal Magistrates Court and the Federal Court. An appeal to this Court from the Federal Court would have insufficient prospects of success to warrant a grant of special leave. Accordingly, special leave is refused with costs.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave with costs. I publish the disposition signed by Kirby J and myself.

AT 9.38 AM THE MATTER WAS CONCLUDED