SZCZM v MIMA & Anor [2007] HCATrans 361 (1 August 2007)

Last Updated: 21 August 2007

[2007] HCATrans 361

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S433 of 2006

B e t w e e n -

SZCZM

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, 1 AUGUST 2007, AT 9.49 AM

Copyright in the High Court of Australia

KIRBY J: The applicant is a citizen of India. He arrived in Australia on 26 February 2003 and applied for a protection visa on 26 March 2003. On 4 June 2003 a delegate of the first respondent refused that application. The applicant sought review of that decision in the Refugee Review Tribunal ("the Tribunal"). On 10 February 2004 the Tribunal set aside the delegate's decision holding that the application was not a valid application, and in consequence should not have been considered. That decision was upheld by the Federal Court on 23 March 2005.

On 14 July 2005 the applicant lodged another application for a protection visa, which was refused by a delegate of the first respondent on 11 August 2005. He applied to the Tribunal for review of that decision. The review was undertaken by a differently constituted Tribunal.

The applicant is a Hindu man who claims to fear persecution because he is in love with a Muslim woman. Her family disapproves. He claims that the woman's father is influential in the Communist Party of India (Marxist) ("the CPIM"). He said that he feared violence from her family and from the family of a friend with whom he had been imprisoned on charges of fraud. Although these are the circumstances giving rise to his fears, he claimed to be a refugee for "political reasons". He claimed that he could not resettle in another part of India because he spoke only one language, Malayalam, a language substantially confined to his state of origin.

The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. A family's opposition to a relationship between an applicant and a woman of the family is not a Convention related reason. The Tribunal thought it unlikely that the woman's father would seek to harm the applicant, as the applicant had not seen her for over five years. The Tribunal noted that there had been no relevant failure of effective state protection, as the applicant had never sought the assistance of the police. Because the majority of the Indian population is Hindu, the Tribunal thought it unlikely that he would be persecuted by Muslims. It was also of the view that Indians generally enjoyed a large measure of freedom of religious worship.

The Tribunal noted that the applicant could in any event shift from his village to another part of the State or nation of India. Because he has had a good education and possesses a trade, his prospects of being able to re-settle in another area were good: he had already resided in Mumbai for some time without difficulty. The Tribunal noted that the applicant was not, and had never been, a member of a political party. It therefore concluded that the applicant did not fear persecution for a Convention reason. It held that Australia did not therefore owe him protection obligations.

The applicant sought review of the decision of the Tribunal by the Federal Magistrates Court (Scarlett FM). He claimed there that he did not receive a fair hearing from the Tribunal because the independent country information was not put to him by it, and that was a breach of s 424A(1) of the Migration Act 1958 (Cth). This assertion was rejected by the Federal Magistrate because, he held, the conduct of the Tribunal falls within the exception to the rule in s 424A(3)(a). He also challenged factual findings of the Tribunal. However, the Federal Magistrate held that these were findings open on the evidence before the Tribunal, and were unaffected by error. As there was no jurisdictional error demonstrated, the Federal Magistrate dismissed the application.

The applicant appealed from the decision of the Federal Magistrate to the Federal Court of Australia (Buchanan J). The applicant there made general allegations that the Federal Magistrate's approach and conclusion were erroneous in failing to find jurisdictional error, and that there had been a denial of procedural fairness by the Tribunal. On 10 November 2006, the appeal was dismissed.

The applicant now seeks special leave to appeal to this Court. He makes the same claims as were advanced before the Federal Court, as well as arguing that the decision of the Tribunal and the first respondent's delegate were bound by the decision of this Court in Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966 which should be applied in his favour. The application fails however to identify any legal questions for this Court to resolve. There was no error in the decision of the Federal Court, and accordingly, the application must be dismissed. Muin has no relevant application to this case. All such matters as should have been put to him or considered were put and became the subject of consideration by the Tribunal and the Courts below. An appeal would not, therefore, enjoy reasonable prospects of success.

Because the applicant is unrepresented, this application for special leave 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 this application and I publish the disposition signed by Justice Callinan and myself.

AT 9.54 AM THE MATTER WAS CONCLUDED