SZEXX v MIMIA & Anor [2006] HCATrans 490 (5 September 2006)

--

SZEXX v MIMIA & Anor [2006] HCATrans 490 (5 September 2006)

Last Updated: 25 September 2006

[2006] HCATrans 490

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S27 of 2006

B e t w e e n -

SZEXX

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 J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 SEPTEMBER 2006, AT 9.38 AM

Copyright in the High Court of Australia

GUMMOW J: The applicant is a citizen of India and a Hindu who claims to fear religious persecution from Hindus because he wants to become a Christian. The decision of a delegate of the first respondent to refuse his application for a protection visa was affirmed by the Refugee Review Tribunal. The Tribunal found that the applicant lacked credibility and that his evidence was inconsistent. In particular, it rejected his claims that he was interested in Christianity and suffered persecution before leaving India.

The applicant’s application for judicial review was dismissed by the Federal Magistrates Court. Smith FM found there was no jurisdictional error or bias, or want of procedural fairness. In particular, Smith FM rejected a contention that the applicant had been denied a proper hearing because his interpreter in the Tribunal had initially failed to understand the applicant to be referring to Christianity; this misconception had been corrected and the applicant had been given an opportunity to make his case after discovery of the mistake.

An appeal to the Federal Court was dismissed by Conti J. His Honour also considered, at the instance of counsel for the respondent, whether the Tribunal’s failure to put to the applicant the inconsistencies in his evidence in accordance with ss 441A and 424A of the Migration Act 1958 (Cth) constituted jurisdictional error in the light of this Court’s decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 79 ALJR 1009; 215 ALR 162. Conti J concluded that the inconsistencies were not the reason or part of the reason for the Tribunal’s decision which was based upon a rejection of the applicant’s basic claims of persecution.

The applicant’s summary of argument is formulaic in nature. The Tribunal’s decision, affirmed by both Smith FM and Conti J, was based upon credit. There are no prospects of success on any appeal. Special leave 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 Heydon J and myself.

AT 9.41 AM THE MATTER WAS CONCLUDED