VWBV v MIMIA & Anor [2006] HCATrans 298 (13 June 2006)

--

VWBV v MIMIA & Anor [2006] HCATrans 298 (13 June 2006)

Last Updated: 28 June 2006

[2006] HCATrans 298

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M146 of 2005

B e t w e e n -

VWBV

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW ACJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 JUNE 2006, AT 9.44 AM

Copyright in the High Court of Australia

GUMMOW ACJ: The applicant is a citizen of Iran of Kurdish ethnicity and a Sunni Muslim who claims to fear political persecution from the government primarily because of his involvement with the separatist Kurdish Democratic Party of Iran (KDPI). The Refugee Review Tribunal affirmed the decision of a delegate of the respondent to refuse the applicant’s application for a protection visa. An application for judicial review by the Federal Magistrates Court, and a subsequent appeal to the Federal Court failed.

The Tribunal found that, although Kurds who are identified by the authorities as pro-KDPI separatists could be at risk of persecution, the applicant did not have such a profile. It further found that the key events of past persecution relied upon had not actually occurred. First, the Tribunal rejected the applicant’s claim that he was arrested, interrogated, jailed and tortured for transporting a KDPI activist from Tehran to Kurdistan. It relied upon the applicant’s lack of knowledge and failure to inquire into the fate of the activist he claimed to have transported, and that he was reticent in responding to questions about him. Second, the Tribunal rejected the claim that the applicant provided supplies and information about military movements and operations to the KDPI, and that he fled Iran after the arrest of the KDPI contact with whom he liaised. It did not accept that the KDPI actually did obtain information or supplies from Tehran in the manner suggested, and also relied upon the applicant’s inability to say what had happened to this KDPI contact. The Tribunal also considered and rejected other claims that the applicant was persecuted because of his family’s political sympathies. The Tribunal concluded, based upon the independent country information and its view of the applicant’s profile, that there was no real chance of future persecution.

The grounds pressed before the Federal Magistrates Court and the Federal Court relevantly included that the Tribunal constructively failed to exercise its jurisdiction by rejecting the applicant’s claim that the key events had occurred without any rational or probative material to support that conclusion. In the Federal Court, Sundberg J rejected this contention holding that, although he might have differed from the Tribunal as to the probative value of the material relied on, such probative material (summarised earlier in these reasons) was present and the assessment of that material was a matter for the Tribunal.

The applicant’s written case substantially relies upon the same ground. However, no error has been shown in the conclusion of Sundberg J that there was probative material before the Tribunal upon which it could make the relevant findings, which findings were in any event based partly upon an assessment of the applicant’s credibility. In addition, the scope of applicable principles on jurisdictional error of law due to illogicality and irrationality has been considered by this Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2004) 77 ALJR 1165, and the present application does not present any additional issues not considered in that case. The application for special leave to appeal involves no question of law of public importance sufficient to warrant a grant of special leave, and also has insufficient prospects of success were such leave granted. 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 Heydon J and myself.

AT 9.48 AM THE MATTER WAS CONCLUDED