SZBDF v MIMIA & Anor [2006] HCATrans 404 (3 August 2006)

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SZBDF v MIMIA & Anor [2006] HCATrans 404 (3 August 2006)

Last Updated: 8 September 2006

[2006] HCATrans 404

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S558 of 2005

B e t w e e n -

SZBDF

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

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 AUGUST 2006, AT 1.40 PM

Copyright in the High Court of Australia

KIRBY J:

Background

The applicant, a national of Bangladesh, arrived in Australia in June 2002 and within a month applied for a protection visa pursuant to the Migration Act 1958 (Cth). In October 2002, a delegate of the Minister refused the application. The applicant sought reconsideration by the Refugee Review Tribunal (“the Tribunal”). In June 2003, the Tribunal affirmed the primary decision.

The Tribunal found that the applicant was not a truthful or credible witness. It concluded that he had concocted his claim as to the sources of his “fear” relating to alleged involvement with the Awami League, one of the major political parties in Bangladesh. The Tribunal did not believe that the applicant had been attacked and beaten seven or eight times, as he asserted. In part, this disbelief was founded on impressions of the applicant. In part, it relied on inconsistencies in his testimony. In part, it arose from the lack of documentary proof. And in part, it arose from the disjunction between the applicant’s original and later claims for wrongs done to him.

The applicant sought judicial review in the Federal Magistrates Court. Federal Magistrate Nicholls rejected that application. Much of the decision was addressed to the suggested failure of the Tribunal to conform to the procedural requirements of s 424A(3)(a) of the Act. Federal Magistrate Nicholls drew a distinction between the requirements, under that provision, to disclose factual country information that was adverse to an applicant and any obligation to disclose the processes of reasoning from such factual information.

Federal Magistrate Nicholls rejected the asserted breach of s 424A and submissions that the Tribunal had acted in bad faith, without honesty, or unfairly.

An appeal was brought from this decision to the Federal Court of Australia. For the purpose of the appeal, that Court was constituted by Branson J. The applicant repeated many of his arguments advanced in the Federal Magistrates Court. In substance, Branson J affirmed the decision of the Federal Magistrate. Her Honour found no error of law, jurisdiction or procedure to warrant the intervention of the Federal Court or to establish error on the part of earlier decision-makers as to the applicant’s claim of persecution for a Convention reason.

Disposition

We have carefully considered the applicant’s written case. In its essence, it complains about suggested failures of procedure and relies on this Court’s decision in Muin and Lie. However, the allegations made by the applicant of jurisdictional error and denial of natural justice are highly generalised. They do not suggest that the applicant would be able, in an appeal to this Court, to overcome the conclusions of the Tribunal based on findings of credibility. Judicial review is not available, as such, for a reconsideration of the merits of such findings, absent the establishment of errors that authorise judicial intervention.

The applicant has not advanced arguments of law that would warrant a grant of special leave to appeal. On the basis of the record, the Tribunal’s adverse findings with respect to his credibility were open to it. No jurisdictional error is apparent in the decision of the Tribunal. The matters raised by the applicant in his written case are largely discursive and unparticularised. They do not warrant the grant of special leave to appeal. Such leave is therefore 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 1.43 PM THE MATTER WAS CONCLUDED