Kunicki & Ors, Ex parte - Re MIMA & Anor M34/2001 [2002] HCATrans 613 (28 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M34 of 2001

In the matter of -

An application for Writs of Certiorari, Mandamus and Prohibition and a Declaration against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

MR EDI HARBAS, an officer of the Commonwealth of the Department of Immigration and Multicultural Affairs in Dandenong (in his capacity as a delegate of the First Respondent for granting visas under the Migration Act 1958 (Cth))

Second Respondent

Ex parte -

JANUSZ KUNICKI

First Applicant/Prosecutor

ALEKSANDRA KUNICKA

Second Applicant/Prosecutor

NASTAZJA KUNICKA

Third Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 28 NOVEMBER 2002, AT 9.32 AM

Copyright in the High Court of Australia

________________

MR C.J. HORAN: If the Court pleases, I appear for the respondent. (instructed by the Australian Government Solicitor).

This is a notice of motion which has been brought to have the proceedings dismissed for want of prosecution.

HIS HONOUR: Yes. Now, I understand that Mrs Kunicka is present in Court, is that right? Are you Mrs Kunicka?

MRS A. KUNICKA: .....

HIS HONOUR: There is someone here who is to help you, I think, is there not?

MRS KUNICKA: .....

HIS HONOUR: Now, given that she has just arrived, would it help if I dealt with other matters first and then dealt with this?

MS THOMPSON: We are waiting for one more person to come.

HIS HONOUR: Well, if I go on with other matters, we can, in the meantime, give you a chance to have that other person arrive. Do we know whether Mr Kunicki is to appear today?

MS THOMPSON: No, we are just - - -

HIS HONOUR: I understand you are looking after Mrs Kunicka. And Nastazja is here as well. So, it is only Mr Kunicki who is not. Perhaps we might have Mr Kunicki called now just to - - -

DEPUTY REGISTRAR: No appearance, your Honour.

HIS HONOUR: Yes, thank you. Well, the matter will be stood down until last in the list.

MS THOMPSON: Thank you, your Honour.

AT 9.35 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.41 AM:

MR HORAN: Your Honour, it is the respondent's motion, so - - -

HIS HONOUR: I understand that, Mr Horan. Can I just work out who is, in effect, looking after the interests of Mrs Kunicka - and I hope I pronounce her name sufficiently correctly - and what attitude Mrs Kunicka has or where we are up to generally in this matter. Now, who is going to speak on her behalf?

MS THOMPSON: Would you like to hear from Mrs Kunicka first, your Honour, or would you - because I am just a social worker from the refuge that she is staying at. I am happy to speak.

HIS HONOUR: What I really want to know is does she understand what is happening in Court today. That is step one. Step two is, once I am happy that she understands what is happening in Court, the next step is, well, what does she say should happen when the Minister is applying for an order that the proceedings in the Court started in her name and in her husband or former partner's name should be dismissed today. Now, step one, does she understand what is happening? Step two, what is happening is that the Minister is asking to stop this action now and dismiss it, and what does she want to say or do about that. Now, how best do we go from here?

MS THOMPSON: My understanding is - you understand that it could be dismissed today. We have talked about it.

MS SZCZEPANSKA: Yes, she understands.

HIS HONOUR: Yes. And does she want to oppose that? Does she want to say anything against that? What does she want to do?

MS SZCZEPANSKA: She does not.....

HIS HONOUR: Look, I am sorry, can you come forward and speak into the mic. One of the joys of old age is you grow deaf, I have discovered.

MS SZCZEPANSKA: Mrs Kunicka just want to have a chance to say her story, what has been happening in her life for the last 13 months or longer. She is not going to oppose Court order but she needs a time to collect finances and sort it out her immigration or visa issues with other countries. At the moment, she has not got a country to return to.

HIS HONOUR: Yes. Now, my understanding what has happened to her over these last 12 months or so, I think, probably does not help me decide what should happen with the application. The application that we now have, the proceedings in the Court that we now have, have a very narrow focus. Can you explain that to her first, please. For example, I understand that she and her husband have separated and that consequences that follow from that include, for example, that she has now contact with the refuge to which you are attached.

MS THOMPSON: Yes.

HIS HONOUR: But the application to the Court is an application to set aside a decision that was made to grant her a particular kind of visa back in December 2000. If you would explain that to her, please.

MS THOMPSON: It was in the year 2000, was it not?

HIS HONOUR: Yes, December 2000. So, in the Court we are looking backwards at what happened in December 2000 rather than looking forwards to what can or should or might now happen.

MS THOMPSON: Can I just ask - - -

HIS HONOUR: Yes.

MS SZCZEPANSKA: She does not remember exactly what has been happening in 2000 but she remembers that they have been in immigration office in Dandenong and they have been.....but they did not understand the repercussion of it.

HIS HONOUR: Yes.

MS SZCZEPANSKA: At the time it has been happening, Aleksandra's husband - they have been together as a family unit, but he has been in charge of everything and he withdraw all the information from them.

HIS HONOUR: Yes. Now, does she want to go on with the application in this Court? Does she want to continue the application in this Court to undo the decision of December 2000?

MS SZCZEPANSKA: Mrs Kunicka, she did not have access to any of the documents. They have been lodged and without documents only on Monday - this Monday. She did not know anything about any correspondence related and she has not got any knowledge what has been happening since the very beginning. To be able to make a reasonable decision she needs proper legal advice and we did not have a time to ask anyone to act on her behalf, your Honour.

HIS HONOUR: Right. Now, if she is going to get some proper legal advice or some advice that will assist her, how long does she say that she would need to have to organise that?

MS SZCZEPANSKA: We have been discussing because we do not know how we can sort it out - - -

HIS HONOUR: Yes, I understand that.

MS SZCZEPANSKA: So, we think the reasonable time is up to six weeks that we can find somebody.

HIS HONOUR: Six weeks is getting a bit long. What I have in mind is I have sittings in Canberra for a fortnight coming and Monday, 16 December, it is likely I will have some other matters to hear in Melbourne. This thing has hung around for a long time. I think we really have to sort out where we are going with this, and what I had in mind was 16 December.

Why do not you ladies sit down and I will hear what Mr Horan has to say about all this and see where we go. Well, Mr Horan, what are we going to do?

MR HORAN: I was going to press for dismissal today but it might be that it is more appropriate to either adjourn it off to the date your Honour has mentioned or, alternatively, set a longer term timetable for the provision of the material which has not yet been provided. But it might be better to - - -

HIS HONOUR: I just wonder whether, if we bring it back on 16 December, we can know then whether it is going to be prosecuted for a start and, second - I have not looked at this - is this one that could go off to the Federal Court? I have no idea.

MR HORAN: I believe in part at least it can.

HIS HONOUR: I do not want to hold you to an answer now but what I have in mind is we should know by 16 December what is going to happen in a general sense: is this going to be prosecuted or is it not? So, we will have that sort of decision. We will know to a degree whether Mrs Kunicka has, and Ms Kunicka - I keep forgetting that there is Mrs and Ms Kunicka - whether they have legal advisers or other advisers who are going to help them through the maze and in the meantime we can give consideration to whether it should go on in this Court, should go off to the Federal Court or decide what should happen and then get the thing back on the rails. If it is going to go, get it on the rails and get it heard and determined. If it is not going to go on, then we stop it and stop the costs.

MR HORAN: Yes.

HIS HONOUR: But would 16 December seem a suitable date to you, Mr Horan?

MR HORAN: Yes, your Honour.

HIS HONOUR: What I will do is I will adjourn the application over to 16 December at 9.30 in Melbourne, back here. Now, can I just say this to Mrs and Ms Kunicka. On 16 December I will need to know what you are going to do. If you are going to get some advice, you are really going to have to move and see what you can get very quickly and it will help, when you know what you are going to do and when you have worked those things out, if those who are advising you could contact - it is AGS, is it not, Mr Horan?

MR HORAN: Yes, your Honour.

HIS HONOUR: The Australian Government Solicitor and Ms Ngo to let them know where we are up to because it may be then that some arrangements can be made between you which will at least shorten any dispute that has to be had on 16 December. Maybe it cannot but maybe it can. So, if I adjourn the application over to 16 December, do I reserve the costs, Mr Horan?

MR HORAN: Yes, your Honour.

HIS HONOUR: Yes, reserve the costs and certify for the attendance of counsel. But you will need to be back here at 9.30 on the 16^th. If you are not, the application will be dismissed and that then presents a real hurdle in your way.

MS THOMPSON: Thank you, your Honour.

HIS HONOUR: I will adjourn. Thank you.

AT 10.59 AM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 16 DECEMBER 2002