SHBB v MIMIA [2003] HCATrans 378 (23 September 2003)

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SHBB v MIMIA [2003] HCATrans 378 (23 September 2003)

Last Updated: 30 September 2003

[2003] HCATrans 378

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A257 of 2003

B e t w e e n -

SHBB

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for expedition

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 23 SEPTEMBER 2003, AT 2.06 PM

Copyright in the High Court of Australia

MR S.C. CHURCHES: If it please the Court, I appear for the applicant. (instructed by Refugee Advocacy Service of South Australia Inc)

MR P.J. HANKS, QC: If your Honour pleases, I appear for the respondent. (instructed by Sparke Helmore)

HIS HONOUR: Yes, Mr Churches.

MR CHURCHES: Your Honour, this is an application for expedition on the part of the applicant who is a 16-year-old unaccompanied Afghan minor, an application to have his application for special leave expedited with all speed. Your Honour, I have an amended summons. I apologise for this. The original summons had a rather cumbersome wording, with an intent to try and have a Full Bench determine the matter of special leave and then the appeal itself, but this merely seeks expedition to the earliest available date.

HIS HONOUR: Have you seen this, Mr Hanks?

MR HANKS: No, I have not, your Honour, but my friend, Mr Churches, has given me a short summary of the terms of this new paragraph. So I have not seen it, your Honour.

HIS HONOUR: It might assist both of you if I indicate right now that our list in Perth is very full and your original application to have this matter added to the Perth list was likely to receive a fairly dusty reception, Mr Churches, simply on that account. But what about the application for expedition of the special leave application? Just let me ask the Registrar when that would come on. In practical terms, an expedited hearing of the special leave application would mean Friday, 12 December in Sydney.

MR CHURCHES: Your Honour, I appreciate what is perhaps the beginnings of an offer and I do not mean to sound churlish if I say that I was hoping that we might gatecrash what I understand is a special leave hearing on 3 October, with a view to, if we were successful at that special leave, coat-tailing into the argument of Applicant S in Perth.

HIS HONOUR: We have no time available in Perth.

MR CHURCHES: No time. My apologies, your Honour.

HIS HONOUR: We have a very full list in Perth. Can I ask this question of both of you? First you, Mr Churches. Do you say that this case will stand or fall with Applicant S?

MR CHURCHES: I will be candid, your Honour, that we think our position better than the applicant in Applicant S. We think that our social group is tighter, less amorphous, more readily definable, and therefore more amenable to the terms of the Refugee Convention.

HIS HONOUR: So it is not necessarily on all fours with Applicant S?

MR CHURCHES: It is not on all fours; it is similar. We fear, of course, that if we merely wait for Applicant S to be delivered, that, without our argument being heard, we might be damaged by a by-blow.

HIS HONOUR: How would you be damaged by a by-blow?

MR CHURCHES: Perhaps dicta that – I take, for example, your Honour, what we say is the dicta of Justice McHugh in Applicant A (1997) 190 CLR 225 in that now-celebrated passage at page 265 where his Honour talked about “perception” within community. In our submission, that is only dicta, but it has been picked up by the Full Federal Court now and - - -

HIS HONOUR: That kind of damage by a by-blow is an incident of the appeal system. We are not going to start running a system under which everybody who is apprehensive of that kind of damage is going to join in every appeal we list.

MR CHURCHES: We would go further, your Honour, and say that we would hope that we would assist the Court in an argument on this matter of social group. We think our facts are good.

HIS HONOUR: What do you say, Mr Hanks, about the relationship between this case and Applicant S?

MR HANKS: Well, I would agree with my friend that there are distinctions, though we would see the distinctions heading in the opposite direction, your Honour, that is, making the case that the present applicant for special leave could make out rather more tenuous than Applicant S. So we do see a distinction between them, your Honour. We certainly do not have any objection or any opposition to expedition in this case, if I might make that clear.

HIS HONOUR: Thank you, Mr Hanks.

MR HANKS: Thank you, your Honour.

MR CHURCHES: The other problem we have, your Honour, and, again, being candid – the particular problem facing our client is that he was found by the Tribunal last year to be 16. Now, the question of his age is a
question of fact and for the Tribunal. If the Court were to ultimately order review and - - -

HIS HONOUR: How do you resolve that question, if there is a dispute about it?

MR CHURCHES: Well, there is, in fact – and I am being open to my friend – some dispute, we would suggest, as to actual age. It is our view that he is younger than the Tribunal found.

HIS HONOUR: The case might raise an interesting question about hearsay evidence then.

MR CHURCHES: Yes, I do not want to go there - - -

HIS HONOUR: Which is the form that most evidence about age takes.

MR CHURCHES: Yes. However, nonetheless, we would submit that time is pressing. He is plainly a teenager, time is rolling, and if he is to be within this particular social group of unaccompanied minors we hope to have the matter heard with all speed.

HIS HONOUR: Well, if the matter is listed for that date in December that I mentioned, the probability is that the Justices who hear the special leave application will have heard argument in Applicant S and will no doubt be able to assess the case in the light of that.

MR CHURCHES: Yes. I understand that, your Honour. If there were an offer of December, then we would gratefully accept it.

HIS HONOUR: All right. You have no objection to this, I understand, Mr Hanks, if I grant expedition and fix it for 12 December?

MR HANKS: No objection at all, your Honour.

HIS HONOUR: All right. I will do that. In this matter, there will be an expedited hearing of the application for special leave to appeal and the matter will be fixed for the Sydney list for 12 December 2003. I will reserve the costs of this application and certify for counsel in chambers.

MR CHURCHES: If your Honour pleases.

HIS HONOUR: Very well. I will adjourn.

AT 2.13 PM THE MATTER WAS CONCLUDED