SZJCM v MIAC & Anor [2008] HCATrans 34 (7 February 2008)

Last Updated: 14 February 2008

Replacement Transcript

[2008] HCATrans 034

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S92 of 2007

B e t w e e n -

SZJCM

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, 7 FEBRUARY 2008, AT 9.00 AM

Copyright in the High Court of Australia

KIRBY J: The applicant, a national of India, arrived in Australia in December 2005 and applied in March 2006 for a protection visa, claiming to be a "refugee" within the Refugees Convention and Protocol given effect by the Migration Act 1958 (Cth).

A delegate of the Minister promptly refused the application. The applicant sought review of this decision by the Refugee Review Tribunal ("the Tribunal"). He was invited to give oral evidence but declined to do so. His claim of persecution was based on his alleged association with the Akali Dal Party. However, following his failure to give oral evidence, the Tribunal came to the conclusion that it was not satisfied, on such evidence as was before it, that the applicant had a well founded fear of persecution within the meaning of the Convention.

From the rejection of his application to the Tribunal, the applicant sought judicial review in the Federal Magistrates Court (Driver FM). His application was dismissed for failure to disclose an arguable case. The applicant purported to appeal to the Federal Court whose appellate jurisdiction was exercised by Kenny J. He was out of time and required leave to appeal. No legal errors were demonstrated nor any jurisdictional error identified by him. His application for leave to appeal was therefore refused.

Essentially, the applicant lost before the Tribunal because he failed to establish his case. There is no basis upon which this Court could repair that failure. The application for special leave is without legal merit and would have no prospects of success. The applicant merely wants to re-argue the factual merits and that is not the function of this Court.

Because the applicant is unrepresented and has filed a written case in accordance with rule 41.10 of the High Court Rules, his application falls to be considered under that rule. The application is dismissed. 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 Heydon J and myself.

AT 9.02 AM THE MATTER WAS CONCLUDED