Applicant S76 of 2003 v MIMIA [2005] HCATrans 930 (14 November 2005)

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Applicant S76 of 2003 v MIMIA [2005] HCATrans 930 (14 November 2005)

Last Updated: 18 November 2005

[2005] HCATrans 930

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S361 of 2005

B e t w e e n -

APPLICANT S76 OF 2003

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 MONDAY 14 NOVEMBER 2005, AT 2.35 PM

Copyright in the High Court of Australia

GUMMOW J: The applicant is a citizen of Bangladesh, born in 1971, who is a university graduate and who arrived in Australia in March 1997. He claims to be entitled to refugee status by reason of a well-founded fear of religious persecution. The applicant claimed that, after he had converted from Islam to Hinduism and married a Hindu girl in 1996, a village council of elders (or “salish”) had passed a fatwa against him, as a result of which he faced a real chance of serious harm.

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 had converted to Hinduism and married a Hindu, and that a fatwa had been passed against him. However, the Tribunal found that, after a ruling of the Bangladeshi High Court in 2001 declaring fatwas to be illegal, and a consequent change in social attitudes towards fatwas, the applicant could avail himself of the protection of the Bangladeshi authorities. Moreover, the influence of village salishes was extremely limited, and the applicant could reasonably relocate within Bangladesh so as to avoid any problems from the fatwa. The Tribunal was therefore unable to be satisfied that the applicant had a well-founded fear of persecution should he return to Bangladesh.

The applicant applied to this Court for orders nisi for constitutional writs. That application was remitted to the Federal Court and dismissed by Branson J as demonstrating no jurisdictional error in the decision of the Tribunal. The applicant had been represented by counsel. An appeal to the Full Court of the Federal Court (Ryan, Finkelstein and Allsop JJ) was dismissed. The applicant had been represented by pro bono counsel. Their Honours gave detailed reasons for their decision.

We have considered the applicant’s written case and the decisions of the Tribunal, the Federal Court and the Full Court of the Federal Court. There would be insufficient prospects of success in any appeal to this Court from the Federal Court to warrant a grant of special leave. 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 the application for special leave. I publish the disposition signed by Kirby J and myself.

AT 2.37 PM THE MATTER WAS CONCLUDED