SZHTL & Ors v MIMA & Anor [2007] HCATrans 217 (22 May 2007)

Last Updated: 31 May 2007

[2007] HCATrans 217

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S313 of 2006

B e t w e e n -

SZHTL

First Applicant

SZHTM

Second Applicant

SZHTN

Third 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 TUESDAY, 22 MAY 2007 AT 9.45 AM

Copyright in the High Court of Australia

KIRBY J: The applicants are a husband, wife and child who were found to be nationals of India. The entitlements of the husband and child were treated as derivative from that of the applicant wife. The applicants arrived in Australia in March 2004 from the Philippines where the applicant husband had enjoyed permanent resident status since 1992. As initially presented, the claim for a protection visa was based upon the applicants' propounded fear of persecution if they were to return to the Philippines. The basis of that fear was suggested violence and harassment in the Philippines directed to members of the Sikh community from the Punjab resident in the Philippines. In April 2005, a delegate of the Minister refused the applicants' application.

The applicants then applied for review to the Refugee Review Tribunal ("the Tribunal"). Before the Tribunal, although the applicant husband was present at the hearing, it was the applicant wife who took the running and asserted the claims to protection upon which the family was relying.

After examining the suggested bases of the propounded fear of persecution in the Philippines, the Tribunal correctly addressed attention to the fact that the primary obligation to afford the applicants protection fell, under the Refugees Convention and Protocol, upon India as their country of nationality. When this was explained, the applicant wife asserted various factual grounds as to why the applicants could not return to India. The applicant husband, although present, did not offer to, or give, evidence on this point. Nor was he apparently asked questions by the Tribunal.

In the result, the Tribunal rejected the claim for protection. In part, its decision was based upon extensive country information concerning the situation in Punjab. In part, it was based on the fact that the claim of fear of returning to India was vague and lacking in detail. In part, it was based on the conclusion that there was no difficulty in the applicants returning to India from where both husband and wife derived. The Tribunal noted that the husband had returned to India without hindrance from the Philippines. It therefore rejected the fear of persecution propounded by the applicant wife. It dismissed the application for review.

The applicants sought judicial review in the Federal Magistrates Court. When this application failed, they appealed to the Full Court of the Federal Court. That Court's appellate jurisdiction was exercised by Cowdroy J. His Honour refused an application by the applicant wife to add further grounds of appeal. The only point of conceivable legal substance in this application was contained in one such ground. It addressed a suggested jurisdictional error on the part of the Tribunal in failing to call the applicant husband forward as the person most knowledgeable about any foundation for a propounded fear of returning to India. If it were the case that the applicants had not been given a fair opportunity to give evidence of the purported fear of return to India (as distinct from the Philippines) this point might have had substance. However, Cowdroy J examined the transcript of proceedings before the Tribunal which was in evidence before the Federal Court. His Honour noted that the transcript confirmed that the Tribunal had "explained to the [applicant] husband that he was entitled to give evidence if he wished. The [applicant] husband declined to do so." It was on this basis that the relevant ground of appeal was rejected as having "no merit". Such a conclusion was clearly open to the Federal Court.

No other reasonably arguable basis for jurisdictional or legal error appears in this case. There is no prospect of success in this Court, were special leave granted. Accordingly, special leave is refused.

Because the applicants are unrepresented, their application has been dealt with in accordance with Rule 41.10 of the High Court Rules. Pursuant to Rule 41.10.5 we direct that the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition signed by Justice Callinan and myself.

AT 9.49 AM THE MATTER WAS CONCLUDED