SZIGW v Minister for Immigration & Citizenship & Anor [2007] HCATrans 730 (6 December 2007)

Last Updated: 12 December 2007

[2007] HCATrans 730

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S130 of 2007

B e t w e e n -

SZIGW

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

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, 6 DECEMBER 2007, AT 9.21 AM

Copyright in the High Court of Australia

KIRBY J: The applicant is a national of the People's Republic of China. He arrived in Australia in June 2005 and promptly applied for a protection visa, claiming to be a "refugee" in accordance with the Migration Act 1958 (Cth) ("the Act"). In September 2005, a delegate of the respondent Minister refused the application. The applicant sought review by the Refugee Review Tribunal ("the Tribunal"). The Tribunal rejected the application and confirmed the decision of the delegate.

An application was then brought, seeking judicial review in the Federal Magistrates Court. Turner FM rejected the application, finding no error of law, jurisdiction or procedure on the part of the Tribunal.

An appeal was then taken to the Federal Court of Australia. The appellate jurisdiction of that Court was exercised by Gilmour J, who dismissed the appeal on 26 February 2007. The application for special leave to appeal to this Court followed. In our view it must be dismissed.

The foundation for the applicant's claim for protection was that she was a practitioner of Falun Gong and had been detained and tortured by police in China on this account. She was invited by the Tribunal to give oral evidence and to present arguments. However, she did not respond to the invitation to attend the hearing. Pursuant to s 426A of the Act, the Tribunal therefore proceeded to reach its decision in the review in the absence of the applicant. Essentially, it rejected the application on the basis that the applicant had provided almost no detail about her experiences nor any evidence of ill-treatment in the two years after her release from detention. It was on that footing that the Tribunal was unable to be satisfied that the applicant had a well-founded fear of persecution. The rejection of the application therefore arose out of the way the applicant presented her claim.

We have carefully considered the file of papers in these proceedings, being conscious of the fact that the applicant was unrepresented both in the Federal Magistrates Court and in the Federal Court. However, at this late stage in the proceedings, we are unconvinced of any basis upon which the applicant's claim could enjoy reasonable prospects of success in this Court, given the factual foundation.

Because the applicant was unrepresented, her application has been dealt with in accordance with Rule 41.10 of the High Court Rules. Pursuant to Rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition signed by Justice Heydon and myself.

AT 9.23 AM THE MATTER WAS CONCLUDED