SZICO & Ors v MIMA & Anor [2007] HCATrans 581 (4 October 2007)

Last Updated: 11 October 2007

[2007] HCATrans 581

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S34 of 2007

B e t w e e n -

SZICO

First Applicant

SZICP

Second Applicant

SZICQ

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
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 OCTOBER 2007, AT 9.21 AM

Copyright in the High Court of Australia

__________________

KIRBY J: The applicants are a husband, wife and their son, all of whom are nationals of the People's Republic of China. They arrived in Australia in December 2002. In the following year, they applied for protection visas. The application was founded on the applicant husband's claim that he was a member of the Yi Guan Dao sect, said to be prohibited in China. It was refused by a delegate of the Minister.

Following rejection of the application by the delegate, the applicants applied for review to the Refugee Review Tribunal ("the Tribunal"). That Tribunal noted that the husband applicant did not claim that he had come to the attention of the Chinese authorities. The Tribunal also noted the delay in making the initial application for protection. It was not satisfied on the evidence that the applicant husband was a member of the sect, as claimed, that he was involved in proselytising on its behalf, or that he was consequently affected by a subjective fear of persecution which could be regarded as "well founded". Upon this view of the merits, the Tribunal dismissed the application.

The applicants sought judicial review from the Federal Magistrates Court. In March 2006, Driver FM dismissed the application. His Honour concluded that the application had been filed out of time and that the applicants had not sought an extension of time within the time allowed. Much attention was paid to a suggestion that the applicants had relied on a friend to write to the Minister to seek ministerial intervention. However, it was on the basis of incompetency of the application that it was dismissed.

The applicants appealed to the Federal Court. That court's appellate jurisdiction was exercised by Tamberlin J. The applicants were represented before his Honour. The applicants challenged the interpretation of s 477 of the Migration Act 1958 (Cth) and submitted that their brief time default did not have the effect of prohibiting their application for judicial review in the circumstances. Tamberlin J concluded that s 477 constituted a privative clause and that, in the circumstances, it deprived the Federal Magistrates Court of jurisdiction to grant an extension of time to the applicant.

The applicants seek special leave to appeal to this Court. They wish to argue that the Federal Court, and the Federal Magistrates Court, erred in concluding that their time default was fatal. They submit that their desire for an extension of time to enliven s 477 of the Act could be inferred from the fact they had lodged an application for judicial review out of time but within the time allowed for an extension.
Although there may be substance in the applicants' contentions concerning the extension of time, the present would not be a suitable case to explore that issue in this Court. This is because, ultimately, on the facts of their case, the applicants have no prospects of success, were special leave to be granted and were they to overcome the time default held against them in the courts below. Ultimately, the Tribunal's decision turned on the inability of the applicants, on the facts, to demonstrate that they were owed protection obligations. There is no reasonable likelihood that this Court would conclude that such decision was tainted by judicial error or was otherwise legally erroneous.

The result is that the application should be dismissed.

Because the applicants are unrepresented in this Court, their application has been dealt with in accordance with r 41.10 of the High Court Rules. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the applications.

I publish that disposition signed by Justice Heydon and myself.

AT 9.25 AM THE MATTER WAS CONCLUDED