SZDCE v MIAC & Anor [2008] HCATrans 42 (7 February 2008)

Last Updated: 13 February 2008

[2008] HCATrans 042

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S251 of 2007

B e t w e e n -

SZDCE

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 9.18 AM

Copyright in the High Court of Australia

KIRBY J: The applicant is a national of Bangladesh. She arrived in Australia in August 2003 and promptly made an application for a protection visa. She claimed to be a "refugee" within the Refugees Convention and Protocol, given effect by the Migration Act 1958 (Cth) ("the Act").

A delegate of the Minister refused the application. In January 2004 the Refugee Review Tribunal ("the Tribunal") affirmed the delegate's decision. That determination was quashed by the Federal Magistrates Court in January 2006. The proceedings were remitted to the Tribunal for redetermination.

The applicant claimed persecution because of her activities as a women's activist in Bangladesh and because she lived, unmarried, with her boyfriend. The applicant claimed to have been involved in the Awami League and to have been tortured by political opponents and religious fundamentalists. She asserted that she had been raped by thugs associated with a rival political party, the BNP, and that a fatwa had been issued against her by religious personnel in relation to her boyfriend, who had since disappeared. If such claims could be established they would present an arguable case based on a fear of persecution attracting the Convention and consequential protection obligations in Australia.

However, the second Tribunal found that the applicant was not a credible witness. It noted that the applicant's oral evidence about her alleged political activism was vague, evasive and inconsistent. The Tribunal found that the applicant lacked knowledge about matters which it would have expected her to know had she indeed been a women's and political activist in Bangladesh. It described her evidence about her alleged involvements with the Chattra League and the Awami League as vague and hesitant. It concluded that her claims had been fabricated and that she was not a truthful witness. It also did not accept that she had experienced difficulties on account of her relationship with her boyfriend or that she had been harmed because of political activities or that relationship. This was the basis on which the second Tribunal rejected the application.

In the Federal Magistrates Court, an application for judicial review was rejected by Smith FM. He dismissed complaints of breaches of ss 424A and 425 of the Act and found no jurisdictional error. In the Federal Court, the appellate jurisdiction was exercised by Edmonds J. In brief reasons, his Honour agreed with the reasons of the Federal Magistrate and found no basis for a grant of judicial review. The application for special leave to this Court followed.

The applicant's written case is devoted to factual and evidentiary criticisms of the decision made by the second Tribunal. Because of the circumstances, we have reviewed the entire file to see whether any basis for a grant of judicial review appears outside the matters dealt with in the courts below. There is no such basis. The applicant was disbelieved in her claim. No error of law or jurisdiction is apparent. An appeal to this Court would not enjoy reasonable prospects of success.

Because the applicant is 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 Heydon J and myself.

AT 9.22 AM THE MATTER WAS CONCLUDED