SZGMW v Minister for Immigration & Citizenship & Anor [2007] HCATrans 740 (6 December 2007)

Last Updated: 13 December 2007

[2007] HCATrans 740

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S149 of 2007

B e t w e e n -

SZGMW

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 9.40 AM

Copyright in the High Court of Australia

HEYDON J: The applicant is a citizen of the People's Republic of China. She claimed to fear persecution as a follower of Falun Gong. A delegate of the first respondent refused her application for a protection visa. The second respondent upheld that decision. It invited the applicant to attend a hearing, but the applicant did not do so, and in consequence the second respondent said it was not satisfied that the applicant's claims were true.

The Federal Magistrates Court (Smith FM) refused an application for judicial review. He refused to find that the applicant's agent was responsible for her non-attendance or that he failed to inform her about the hearing. In any event, he concluded that the Migration Act 1958 (Cth) did not require that the applicant receive actual notice of the invitation to attend a hearing. He relied on Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142. That decision has since been reversed by this Court: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 237 ALR 64. However, the applicant cannot rely on the principles stated in that case because they depend on proof of fraud in an applicant's agent, and Smith FM's findings are adverse to that conclusion.

The Federal Court of Australia (Conti J) dismissed an appeal. That appeal was based on claims of jurisdictional error by the second respondent, which Conti J rejected.

The very brief papers filed in support of the applicant's application for special leave to appeal to this Court identify no error in the reasoning of either Smith FM or Conti J. The application is dismissed.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave. I publish that disposition signed by Justice Kirby and myself.

AT 9.42 AM THE MATTER WAS CONCLUDED