SZHFE v MIMA & Anor [2007] HCATrans 10 (31 January 2007)

Last Updated: 5 February 2007

[2007] HCATrans 010

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S207 of 2006

B e t w e e n -

SZHFE

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

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 31 JANUARY 2007, AT 9.43 AM

Copyright in the High Court of Australia

KIRBY J: The applicant is a national of Bangladesh. He arrived in Australia in November 1998. It was not until nearly seven years later that he unsuccessfully applied for a protection visa on the basis that he was a “refugee” within the Refugees Convention and Protocol. The long delay between arrival and the assertion of fear of harm was not surprisingly a matter for comment. The applicant sought review by the Refugee Review Tribunal (“the Tribunal”). The Tribunal, noting delays, discrepancies and lack of political knowledge on the part of the applicant, confirmed the decision of the delegate and rejected his claim to refugee status.

The applicant then applied to the Federal Magistrates Court for judicial review. He asserted bad faith on the part of the Tribunal and non-compliance with s 424A of the Migration Act 1958 (Cth) (“the Act”). Federal Magistrate Driver rejected his arguments. He also explored and rejected an argument not raised earlier by the applicant, that the Tribunal had failed to comply with s 91R(3) of the Act. The decision of the first respondent was therefore affirmed.

The applicant then appealed to the Federal Court of Australia. There, Jacobson J, exercising the powers of a Full Court, first dismissed the application for want of appearance by the applicant. However, later, when this absence was explained, his Honour reopened the matter, heard argument and dealt with it on the merits. We will assume, without deciding, that it was open to Jacobson J to take this course, that procedure not now being challenged.

In his reasons in the reopened application, Jacobson J demonstrated convincingly that there was no substance in the applicant’s complaint about the reference by the Federal Magistrate to the inapplicable provisions of s 91R(3) of the Act. Although it was accepted that the Federal Magistrate had made a slip in referring to the requirements of s 424A of the Act, Jacobson J was satisfied that no fairly arguable case existed to sustain an appeal on the basis that the Federal Magistrate had made an error of law, or of jurisdiction warranting orders for judicial review.

We agree with the analysis of Jacobson J. We are unconvinced that there has been any material error on the part of the Federal Court or that the applicant would enjoy reasonable prospects of success if special leave were granted to appeal to this Court.

The applicant requires a very short extension of time for bringing his application. In all the circumstances, we would grant that extension but dismiss his application for special leave to appeal to this Court.

Because the applicant is unrepresented, this application falls to be dealt with in accordance with Rule 41.10 of the High Court Rules 2004. Pursuant to Rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition signed by Callinan J and myself.

AT 9.46 AM THE MATTER WAS CONCLUDED