SZKDT v Minister for Immigration & Citizenship & Anor [2007] HCATrans 718 (26 November 2007)

Last Updated: 3 December 2007

[2007] HCATrans 718

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S491 of 2007

B e t w e e n -

SZKDT

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for reinstatement

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 26 NOVEMBER 2007, AT 9.12 AM

Copyright in the High Court of Australia

SZKDT appeared in person.

MS S.A. SIRTES: May it please the Court, I appear for the respondent Minister. (instructed by DLA Phillips Fox)

BHARAT DHUNGANA, affirmed as interpreter:

HIS HONOUR: Could you tell the applicant that I have read the contents of the file and could you ask him if there is anything more he wants to add, any other document he wants to add or anything he wants to say?

SZKDT (through interpreter): I wish to submit in my submissions - the submissions that I was late in submitting, I would like to submit it.

HIS HONOUR: Ask him if by that he refers to the applicant’s written case which bears the date, 11 October 2007.

SZKDT (through interpreter): That plus other documents that I sent to the High Court but it was returned to me at my address because it was not delivered to the High Court.

HIS HONOUR: Have you given a copy of this to Mrs Sirtes, to the first respondent?

SZKDT (through interpreter): Yes.

HIS HONOUR: Do you have a copy?

MS SIRTES: I was given a copy this morning, your Honour, by the Registry staff about five minutes before your Honour ascended the bench, but otherwise the Minister has not seen it.

HIS HONOUR: I have read this already, but I will read it again now. Yes, I have read that document. Is there anything the applicant wants to say in addition? I need not trouble you, Mrs Sirtes.

On 17 September 2007 the applicant filed an application for special leave to appeal against an order of the Federal Court of Australia, Justice Graham, dismissing an appeal from a refusal by the Federal Magistrates Court, Federal Magistrate Driver, of an application for judicial review of a decision of the second respondent upholding the refusal of a delegate of the first respondent to grant a protection visa to the applicant.

The applicant failed to comply with rule 41.10.4 of the High Court Rules in that he failed to file his written case within 28 days of filing the application. His application was therefore deemed, under the Rules, to have been abandoned on 15 October 2007.

By summons filed on 5 November 2007, the applicant applies for reinstatement of his special leave application. The applicant advances various excuses for non-compliance, but it is convenient to go first to the submissions of the first respondent. Those submissions are that while he would not suffer prejudice from reinstatement it would be futile to order it because the special leave application is without merit.

The history is that the second respondent rejected the applicant’s claims to fear political persecution in Nepal from Maoists who killed his father. The second respondent found the applicant’s evidence not to be credible. It found that the applicant’s father was not killed in the circumstances described by the applicant and was not himself a Maoist. It rejected numerous other aspects of the applicant’s evidence, including claims that the Nepalese authorities are unable to protect him. It concluded by finding that the applicant had no well-founded fear of persecution.

The sole ground of review pressed before Federal Magistrate Driver related to a letter sent by the second respondent to the applicant under section 424A of the Migration Act 1958 (Cth). The applicant argued that the letter failed to alert him to the significance of the information relied on by the second respondent. Federal Magistrate Driver found that the second respondent did not breach its obligations under section 424A and that what led to the second respondent’s disbelief of the applicant was not the inconsistency between the passport and the application in itself, but the unsatisfactory attempts of the applicant to explain away that inconsistency. Justice Graham rejected the applicant’s contention that the section 424A letter was unsatisfactory.

The applicant wishes to argue three grounds of appeal if special leave is granted, but all of them relate to the section 424A letter. The second and third do not traverse new ground and do not suggest that there are any prospects of success if special leave were granted to pursue them.

The first ground criticises a statement by Justice Graham that the father’s party membership was immaterial to the reasoning of the second respondent. This challenged factual analysis does not reveal either error of law by Justice Graham or jurisdictional error by the second respondent.

The applicant has also sought to rely on the contents of the written case, which he would file if this application were reinstated. That document alleges that both the first respondent’s delegate and the second respondent failed to review his case properly. It also alleges that he was denied procedural fairness. It also relies on the principles stated in Muin and Lie. There is no evidentiary material to support those contentions.

To grant the present application would be futile and it must therefore be dismissed. I order that the application be dismissed with costs.

AT 9.22 AM THE MATTER WAS CONCLUDED