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SZCWS v MIMA & Anor [2007] HCATrans 226 (23 May 2007)

Last Updated: 31 May 2007

[2007] HCATrans 226

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S325 of 2006

B e t w e e n -

SZCWS

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 23 MAY 2007 AT 9.33 AM

Copyright in the High Court of Australia

KIRBY J: The applicant is a citizen of Bangladesh. He arrived in Australia on 21 September 2000 and immediately applied for a protection visa, claiming fear of persecution because of his political opinion. He claims to have been an active member of the Jatiya Party in his local area and to have been attacked and physically harmed by members of the Awami League twice in 1997 because of this. He also asserts that false charges were laid against him in 1998 by members of the Awami League as a form of harassment.

On 16 February 2001 a delegate of the first respondent ("the delegate") refused the application on the basis that the fears were not well-founded. The delegate pointed out that Bangladesh has an independent judiciary which would deal appropriately with any cases brought against him, and that his problems were localised: he could therefore avoid serious harm by moving to another part of Bangladesh.

The applicant sought review of that decision in the Refugee Review Tribunal ("the Tribunal") stating simply that he disagreed with the delegate's decision; no further information was provided.

On 31 October 2002 the Tribunal wrote to the applicant to invite him to attend a hearing and advised him that it was not prepared to make a favourable decision on the information provided.

On 3 December 2002 the applicant's adviser forwarded a written submission which provided no new information regarding the applicant's activities, but argued that the situation in Bangladesh had deteriorated since the government changed in the previous year. The applicant further advised that he did not wish to attend the hearing.

The Tribunal held that, on the evidence before it, it could not be satisfied that the applicant had a well-founded fear of persecution by reason of political opinion or any other Convention reason. It referred to a number of gaps in the evidence that it would have wished to have explored with him in a hearing.

The applicant sought review in the Federal Magistrates Court (Nichols FM). The first respondent applied for summary dismissal of the application for judicial review on the grounds that the proceedings were an abuse of process, failed to disclose a reasonable cause of action, and were vexatious.

The applicant has an extensive litigation history, which can be summarised as follows. On 20 March 2003 the Federal Court (Allsop J) dismissed an application with respect to the Tribunal decision, and a notice of appeal against that decision was subsequently discontinued. On 6 March 2004 an application was lodged for review of the Tribunal's decision in the Federal Magistrates Court (Raphael FM) and on 16 July 2004 that court dismissed the application. On 14 September 2004 the Federal Court (Stone J) again dismissed an application for leave to appeal, and on 26 May 2005 this Court (Hayne and Callinan JJ) dismissed an application for special leave to appeal (see SZCWS v MIMIA  [2005 HCATrans 352]).  On 7 October 2005 the applicant filed an application for judicial review of the delegate's decision in the Federal Magistrates Court.

The decisions of both the delegate and Tribunal have already been the subject of extensive judicial consideration by the time that application was again made to the Federal Magistrates Court (Nichols FM). His Honour was undoubtedly correct in summarily dismissing the applicant's application as frivolous, vexatious, an abuse of process and displaying no reasonable cause of action.

Likewise, the Federal Court (Jacobson J) in refusing leave to appeal to the Federal Court was correct. The application is entirely without merit. Special leave to appeal to this Court is refused.

Because the applicant is unrepresented, this application for special leave falls to be dealt with in accordance with rule 41.10 of the High Court Rules 2004. Pursuant to rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application. I publish that disposition signed by Justice Callinan and myself.

AT 9.37 AM THE MATTER WAS CONCLUDED