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SZFCZ & Anor v MIMIA [2006] HCATrans 401 (3 August 2006)

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SZFCZ & Anor v MIMIA [2006] HCATrans 401 (3 August 2006)

Last Updated: 8 September 2006

[2006] HCATrans 401


IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S550 of 2005

B e t w e e n -

SZFCZ

First Applicant

SZFDA

Second Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders


KIRBY J
CALLINAN J


TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 AUGUST 2006, AT 1.28 PM

Copyright in the High Court of Australia

KIRBY J:

Background

The applicants, husband and wife, are nationals of Bangladesh. They arrived in Australia in December 1999 and promptly applied for protection visas under the Migration Act 1958 (Cth). A delegate of the Minister refused the application in January 2000. The applicants applied for review of this decision by the Refugee Review Tribunal (“the Tribunal”). In October 2002, the Tribunal affirmed the primary decision.

Before the Tribunal, the claim for a protection visa depended, in substance, on the position of the applicant wife. She alone made specific claims under the Convention. The applicant husband’s entitlements are derivative. The applicant wife claimed that, in Bangladesh, she had been a newspaper editor and had published stories about alleged “gangsterism” by members of the Awami League. On this footing, she claimed that she had been targeted by violence, enhanced because of her support for the well known Bangladeshi feminist author, Ms Taslima Nasreen. She asserted that her mother had been subject to an attempted assassination by Awami League supporters or fundamentalist Muslims. If believed, such claims might have founded an entitlement to refugee protection.

However, whilst accepting that the applicant had been a journalist and had written articles criticising Awami League interests, the Tribunal was not satisfied that the applicant wife had been threatened with harm or targeted for a Convention reason. As well, the Tribunal considered that the applicant could avail herself of protection of the authorities in Bangladesh. Based on country evidence, the Tribunal concluded that such authorities would afford protection to a person such as the female applicant (and by inference her husband). The Tribunal was not convinced of the credibility of the claims of persecution by reference to support of Ms Nasreen. It concluded that the female applicant had invented such claims in an endeavour to boost the chances of success of her application.

On the basis of these unpromising factual conclusions, the applicants faced severe difficulties in securing relief by way of judicial review. The present proceedings arise from orders of Federal Magistrate Nicholls in August 2005, dismissing the application for review. It appears, however, from the reasons of the Federal Magistrate, that those proceedings were, in fact, a second attempt on the part of the applicant to obtain judicial review.

The Federal Magistrate discloses that the applicants had earlier brought proceedings in the Federal Court. Those proceedings had been dismissed on 26 March 2003 by Wilcox J. A Full Court of the Federal Court on 12 August 2003 had then dismissed an appeal against the orders of Wilcox J. Federal Magistrate Nicholls was satisfied that the present proceedings were an attempt to reagitate the matter that had thus been concluded. He dismissed the application on this basis, holding that its prosecution was an invalid attempt to lodge a second application, contrary to the provisions and scheme of the Act. He concluded that the Federal Magistrates Court had no jurisdiction and on that basis dismissed the application.

Federal Magistrate Nicholls went on (“For the benefit of the applicants who are unrepresented legally”) to indicate that, in any event, the second application would likewise have been dismissed by him on its legal merits.

A purported further appeal to the Federal Court was heard by Gyles J on 20 October 2005. His Honour was then apparently exercising the appellate jurisdiction of that Court. Without providing reasons, Gyles J dismissed the applicants’ notice of appeal as incompetent. It is from that order that the applicants have now applied to this Court for special leave.

In their application, the applicants do not address the threshold question of the incompetence of their purported second application for judicial review in proceedings already judicially determined against them. They simply re-argue their complaint about the substance of the determination, including allegedly misconstrued country information and a claimed want of procedural fairness.

Disposition

We have considered the applicants’ written case. However, it is quite unhelpful for consideration of the threshold issue that stands in the way of the further prosecution of these proceedings. On the basis of the finding of Federal Magistrate Nicholls as to the identity of these proceedings with those earlier dismissed by the Federal Court (and in the absence of a demonstration that the Federal Magistrate’s findings in this regard are factually or legally misconceived) the decision of Gyles J was clearly correct. There is therefore no prospect of success in an appeal to this Court from the orders made by Gyles J. Nothing in the applicants’ written case suggests any basis for concluding that the orders below are wrong or attended by any doubt. In the result, the application for special leave must be refused.

Order

Pursuant to r 41.10.5 of the High Court Rules, we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave. I publish that disposition signed by Callinan J and myself.

AT 1.32 PM THE MATTER WAS CONCLUDED


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