SZIUD v MIMA & Anor [2007] HCATrans 73 (14 February 2007)

Last Updated: 21 March 2007

[2007] HCATrans 073

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S444 of 2006

B e t w e e n -

SZIUD

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Summons for reinstatement

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 14 FEBRUARY 2007, AT 9.36 AM

Copyright in the High Court of Australia

SZIUD appeared in person.

MR D.H. GODWIN: If it please the Court, I appear for the first respondent. (instructed by DLA Phillips Fox)

HIS HONOUR: Thank you. The Deputy Registrar indicates he has been advised by the solicitor for the second respondent that it submits to the order of the Court, save as to costs.

Y QU, affirmed as interpreter:

HIS HONOUR: Would you go back to the Bar table and sit next to the applicant. Would you ask him if there is anything he needs to add orally to what he has put in writing?

SZIUD (through interpreter): My last application was not represented by any solicitor or barrister so I did not have enough legal support. In particular, I was not aware that I have to appeal within 28 days. This is the very reason why I did not amend the Form 18 and the Form 24. I feel very regret for what I have done, for the mistakes I have made, but I do not know how to do and how to correct my mistake.

Now, I feel bad and I hope the Judge could give me a second chance to consider my situation because as soon – as long as I was sent back to China and I will be persecuted for sure that. I came from China and I am a sincere Christian while I was in China. I grew up in a Christian family. I was persecuted by the Chinese Government due to my belief and I was tortured, not only my body – physical body - but also my mind. I was detained by the police and I was tortured by them as well. However, I never give up my belief.

I still pursue the paths of my belief and never give up no matter what kind of torture I had been treated with. For this reason I was persecuted by the Chinese Government and I bribed the relevant person and this is the way I – how I fly away from China. For me I think RRT’s decision – there is a big error there because regarding the decision procedure I think it is not fair for me. In particular, I think it is contravened to the article 424A(1) and it is also contravened to the migration law, 425.

RRT’s decision was made according to the information and evidence I provided in the RRT’s hearing. Although they have discussed some informations when the hearing was held in RRT I still believe they should – they should bring their decision and send it down to me in written forms and they also need to notify me in written form and let me know all those informations are closely related to my case, that is to say if I fail to explain all these areas and issues that will affect my case and affect the prospect of success in my case.

In addition, I also think the members of the RRT should invite me and give me a chance to argue of my case in written form. Obviously, they just give me a chance to present and argue my case orally. I think that is not fair to me and I also believe this is not the real meaning for the migration law of 424A. According to the migration law, item 424A, I have my rights to argue of any areas and evidence in written form and I also believe the migration law – the article 425 of the migration law should provide a real chance for the applicant, therefore it will provide opportunity for the applicant to argue their case not only verbally but also in written form.

By doing this I will be able to argue and present all information I have for my case. However, that was not a situation when I was in RRT. On the one hand, the interpreters attended in the RRT’s hearing was lack of relevant information for..... Therefore he or she failed to interpret exactly what I mean regarding my belief. All of this cause a problem for my case and make the RRT’s member fail to understand my situation.

On the other hand, the RRT’s member did discuss some issues with me. However, they did not address me directly whether they fully understand what I have said in the RRT’s hearing. In most circumstances I thought I have already provided with a full explanation of what I have said. As a matter of fact, when I read through the decision made by the RRT I found many errors that – which means the RRT’s member did not fully understand what I have said in the hearing.

This is actually deprived me of a right or opportunity to argue with my case. Even the Federal Court I think ignored the fact that the RRT – what the RRT’s action and decision was contravene to the migration law for article 424 and 425. This is the very reason why, I think, their decision were not fair to me and I have to pay for everything. That is amount to $1,277. It is a great money for me because I do not have a job and everything were paid by my church. I was really sorry for the mistakes I have made and I really hope the High Court could give me a second chance for my case. That is all I want to say, thanks.

HIS HONOUR: Thank you. Mr Godwin, you rely on the written submissions?

MR GODWIN: Yes, your Honour.

HIS HONOUR: This is a summons filed 11 January 2007 in which the applicant seeks an order for reinstatement of an application for special leave to appeal. The application for special leave was filed on 7 December 2006. The application sought special leave to appeal from their refusal of leave by Justice Spender in the Federal Court. That decision was given on 13 November 2006.

One matter of critical importance in an application for reinstatement of a special leave application is whether the substantive special leave application enjoys realistic prospects of success. Justice Spender refused leave on the footing that the federal magistrate had correctly taken the points first, that the decision of the Tribunal, to a significant degree, was based upon assessment of credibility and, secondly, that there had been no error in the application of section 424A of the Migration Act 1958.

There are insufficient prospects of success to warrant any grant of special leave from that decision of Justice Spender. Indeed, the decision of Justice Spender appears plainly to have been correct. Accordingly, any reinstatement of the special leave application would serve no useful purpose and the application for reinstatement made by the summons just indicated will be refused.

Do you seek costs?

MR GODWIN: Yes, your Honour.

HIS HONOUR: Refused with costs.

MR GODWIN: May it please the Court.

AT 9.51 AM THE MATTER WAS CONCLUDED