SZENU v MIMA & Anor [2006] HCATrans 637 (15 November 2006)

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SZENU v MIMA & Anor [2006] HCATrans 637 (15 November 2006)

Last Updated: 23 November 2006

[2006] HCATrans 637

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S141 of 2006

B e t w e e n -

SZENU

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL 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 WEDNESDAY, 15 NOVEMBER 2006, AT 9.26 AM

Copyright in the High Court of Australia

GUMMOW J: The applicant is a citizen of India, who was refused a protection visa by a delegate of the first respondent on 13 May 2004.

The Refugee Review Tribunal (“the Tribunal”) was prepared to accept the applicant’s claim that he had been persecuted and tortured by Indian police because of his unwilling involvement with a group of militants who were allegedly from Pakistan. The Tribunal, however, was not satisfied that the applicant could not avoid persecution on return to India by relocating. This conclusion was based on evidence that the applicant had lived in another area of India without police persecution, and the Tribunal’s view that if the applicant had been of interest to the Indian authorities on account of his political views, he would have been prevented from leaving India. The Tribunal also considered that the applicant’s written submission was vague and that his oral evidence contained embellishment which cast doubt both on the veracity of his evidence overall, and on his credibility as a witness.

In the Federal Magistrates Court, the applicant submitted that the Tribunal’s decision contained a contradiction because on the one hand it believed that he had embellished his evidence, but on the other it believed his claims of torture and persecution at the hands of Indian police. The applicant also objected that the Tribunal had not informed him of its credibility findings, nor did it allow him to respond under s 424A(1) of the Migration Act 1958 (“the Act”). Lloyd-Jones FM found that s 424A(1) of the Act had been complied with as the material upon which the Tribunal had based its decision had been made available to the applicant. Moreover, Lloyd-Jones FM found that the Tribunal’s decision did not turn on any adverse credibility finding. Consequently, there had been no jurisdictional error on the part of the Tribunal.

The applicant appealed to the Federal Court, where he advanced an argument that the Tribunal failed to inform him of its finding that he could safely relocate if he returned to India. Gyles J agreed with the finding of Lloyd-Jones FM on this issue, that the Tribunal’s conclusion on the relocation point was available to it on the evidence, and that its failure to inform the applicant did not breach s 424A(1) of the Act or amount to jurisdictional error.

The applicant’s case presented to this Court is generally formulaic in nature and fails to disclose any question of general public importance sufficient for a grant of special leave. Accordingly, 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 9.28 AM THE MATTER WAS CONCLUDED