SZIME v MIAC & Anor

[2007] HCATrans 727

[2007] HCATrans 727

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S125 of 2007

B e t w e e n -

SZIME

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 9.14 AM

Copyright in the High Court of Australia

KIRBY J:   The applicant is a national of Nepal.  He arrived in Australia in July 2005 and promptly applied for a protection visa.   He claimed that he was entitled to protection under the Migration Act 1958 (Cth) ("the Act"), on the basis of a well-founded fear of being persecuted for reasons of political opinion. In September 2005 a delegate of the respondent Minister refused the application. The applicant sought review by the Refugee Review Tribunal ("the Tribunal"). In January 2006, the Tribunal rejected the application and affirmed the Minister's decision adverse to the applicant.

Subsequent applications to the Federal Magistrates Court (Emmett FM) and, on appeal, to the Full Court of the Federal Court of Australia (Allsop, Lander and Middleton JJ) were dismissed.  The application for special leave to appeal to this Court followed.

The fundamental basis on which the Tribunal rejected the applicant's claim was that it was not satisfied that the applicant was a Maoist activist in Nepal and hence liable to persecution if returned.  The Tribunal found that the applicant's knowledge of Maoism and its role in Nepal was superficial.  It also found that he had exaggerated the importance of politics in his life and relied on dubious documentary evidence.  It expressed a view that the Maoist in Nepal were a violent criminal organisation, membership of which did not attract protection obligations.

There were various complaints both as to the merits and as to procedural fairness in the courts below.  None of these would attract the intervention of this Court. 

One matter of possible interest was the continued presence in the Tribunal hearing of an interpreter about whose competence the applicant complained and who was replaced. It was alleged that the action of the imperfect interpreter in remaining at the hearing breached the requirements of s 429 of the Act that the hearing should be "in private". That argument could not succeed in the face of the decision in SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 80 ALJR 1599; 229 ALR 423.

We are unconvinced that any of the grounds urged enjoys reasonable prospects of success in this Court.  In the end, the undisturbed factual findings of the Tribunal render the applicant's case an unsuitable one for the grant of special leave.  Special leave is therefore refused.

The applicant was unrepresented in this Court and has filed a written case in accordance with Rule 41.10 of the High Court Rules.  Pursuant to Rule 41.10.5 of those Rules, we direct the Registrar to draw up, sign and seal an order dismissing the application.  I now publish that disposition signed by Justice Heydon and myself.

AT 9.16 AM THE MATTER WAS CONCLUDED