SZHLZ v MIMA & Anor [2007] HCATrans 362 (1 August 2007)

Last Updated: 21 August 2007

[2007] HCATrans 362

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S437 of 2006

B e t w e e n -

SZHLZ

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 9.54 AM

Copyright in the High Court of Australia

KIRBY J: The applicant, a citizen of Pakistan, arrived in Australia on 28 February 2005. Shortly thereafter he applied for a protection visa. On 2 June 2005 a delegate of the first respondent refused the application. The applicant claimed to have been a member of the Pakistan Muslim Leagues Nawaz Group ("the PMLN") from 1995 onwards. He said that after General Musharraf came to power, enforcement agencies of the State targeted workers from his party and tortured them. He claimed that in 2004 he was kidnapped and tortured and was only released when he agreed to provide information about his colleagues who were in hiding. He said that he had himself gone into hiding; not staying at any address for very long.

On 8 August 2005 the Tribunal wrote to the applicant advising him that it had considered all of the material before it but that it was unable to make a favourable decision on that information alone. He was invited to give oral evidence.

On 28 August 2005 the applicant indicated that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the current evidence.

The Tribunal held that the applicant's claims were lacking in detail and supporting evidence. The harm he claimed to have suffered was not the subject of any detailed description. The Tribunal was unable to be satisfied on the evidence before it that the applicant had been a worker for the PMLN, that he had been kidnapped as he claimed or that he had been threatened. His application was accordingly dismissed.

The applicant sought judicial review of that decision by the Federal Magistrates Court (Driver FM). The respondent sought summary dismissal of the proceedings on the basis that the application for judicial review failed to disclose an arguable case. The applicant responded by saying that he did not attend the Tribunal hearing owing to ill-health. However no evidence of any illness was offered to the Tribunal. He also argued that the Tribunal should have sought further information from him pursuant to s 424 of the Migration Act 1958 (Cth).

The Federal Magistrate concluded that the applicant had not been denied procedural fairness. His application was doomed to failure. It was, in consequence, summarily dismissed.

The applicant sought leave to appeal from that decision to the Federal Court (Nicholson J). There, the applicant repeated the factual merits of his claim for a protection visa, and his claim that he was unable to attend the Tribunal by reason of ill-health. Such evidence as the applicant could adduce as to his medical condition did not relate to his condition at the time of his non-attendance before the Tribunal. No error of law by the Tribunal or the Federal Magistrate was shown. The applicant's application to the Federal Court was therefore refused.

The applicant's proposed notice of appeal to this Court, in respect of his application for special leave, substantially repeats the complaints raised in the courts below. In essence, the applicant seeks to re-litigate the factual merits of his case and does not point to any question of law to justify a grant of special leave to appeal to this Court. Having elected not to give further evidence, the applicant left it to the Tribunal to act on the material before it. On that evidence, the Tribunal was not satisfied that the applicant was owed protection obligations and it was entitled to proceed, pursuant to s 426(1) of the Act, to determine the application in his absence. The applicant has not demonstrated any error in the decisions of the Tribunal, Magistrates Court or Federal Court.

Special leave to appeal is refused.

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 9.57 AM THE MATTER WAS CONCLUDED