SBBS v MIMIA [2003] HCATrans 454 (12 November 2003)

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SBBS v MIMIA [2003] HCATrans 454 (12 November 2003)

Last Updated: 19 November 2003

[2003] HCATrans 454

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A366 of 2002

B e t w e e n -

SBBS

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Summons

HEYDON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 12 NOVEMBER 2003, AT 8.55 AM

Copyright in the High Court of Australia

MR G.F. BARRETT, QC: May it please the Court, I appear for the applicant. (instructed by Refugee Advocacy Service of South Australia, Inc)

MR M.J. RODER: If the Court pleases, I appear for the respondent. (instructed by Sparke Helmore)

HIS HONOUR: Mr Roder, is your position that the Minister neither consents to nor opposes the applicant’s present application?

MR RODER: It is, your Honour. The only thing I am instructed to seek is an order for costs thrown away of the application.

HIS HONOUR: Yes. Mr Barrett, can you resist an order for costs, assuming you - - -

MR BARRETT: No, your Honour.

HIS HONOUR: Yes, very well. Thank you, Mr Barrett.

On 10 December 2002, the applicant filed an application for special leave to appeal against a decision of the Full Court of the Federal Court of Australia given on 22 November 2002. The effect of that decision is that the applicant may be deported to Afghanistan. He is presently aged 18. The stated ground in the application rested on a contention that there was a lack of bona fides on the part on the Refugee Review Tribunal in performing its function, which the Full Court had not corrected.

The High Court Rules Order 69A rule 6(1) thereupon created an obligation on the applicant within 28 days to “file and serve a summary of argument and a draft notice of appeal”. This obligation was not complied with. By letter of 26 February 2003, the Deputy Registrar informed the applicant of that fact, advised of other relevant provisions in the Rules and drew particular attention to Order 69A rule 13. That letter was sent to the person named as the applicant’s guardian in the applicant’s special leave application. Order 69A rule 13 provides that:

Where an applicant fails to comply with subrules . . . 6(1) . . . within six months after filing the special leave application, the application shall be deemed to be abandoned, unless the Court or a Justice or Registrar has otherwise ordered or directed.

There was no relevant order or direction. Hence, on 11 June 2003, the application was deemed to be abandoned. The Deputy Registrar issued a certificate to that effect on 30 September 2003, pursuant to Order 69A rule 13(2).

On 2 October 2003, the solicitor for the respondent forwarded the certificate to the solicitor for the applicant. This stimulated a summons filed on 7 October 2003 by which the applicant seeks orders reinstating the special leave application. The respondent neither opposes nor consents to the orders sought. An order under Order 60 rule 6 enlarging the time appointed by Order 69A rule 6(1) until some day in the near future is sufficient and necessary to give the applicant what he wants: see Hodgson v Minister for Primary Industries, Water and Environment, a decision of Justice McHugh on 15 November 2001.

The affidavit of the applicant’s solicitor, who is employed by the Refugee Advocacy Service of South Australia, filed on 7 October 2003, gives two explanations for the delay. First, the Deputy Registrar’s letter of 26 February 2003 was not received by the solicitor until about 12 June 2003, by which time the abandonment of the application had become effective. Presumably, this was because the applicant’s guardian, to whom the letter was addressed, failed to pass it on until about that time. Secondly, the affidavit points out that the Service is overworked and understaffed.

There are many factors pointing against granting an extension. The delay has been very lengthy, about 10 months. Steps to regularise the proceedings were stimulated, not by the applicant, but by the actions of the respondent. The respondent was in no way responsible for the delay and nor was the Court.

The delay has not been properly explained. The applicant is still in default in relation to the draft notice of appeal. However, if the applicant were now deported, if his contention that he faces persecution in Afghanistan is correct and if his application to the Court were not heard on the merits, an injustice would have been caused to the applicant, being an injustice which could have potentially very grave prejudicial consequences for him. It would be an injustice flowing from a state of affairs to which, as far as the evidence goes, he personally has not contributed. He is young, he is illiterate and he was not represented before the Refugee Review Tribunal.

What are the prospects of success in the special leave application? The ground advanced is highly unconvincing. It is in substance an allegation of fraud against the Tribunal. It has now been abandoned, doubtless on counsel’s advice, and that suggests it should never have been advanced. On the other hand, the new ground advanced, procedural unfairness, is not unarguable. In the circumstances, it is desirable to say of it only that it merits consideration by two or three Justices in the ordinary way. There was no specific evidence of prejudice to the respondent beyond that which naturally flows from the passing of time.

In all the circumstances, with considerable reluctance, I see no alternative but to grant the extension. The applicant does not wish to say anything to the contrary of the proposition that he ought to pay the costs of the summons. Order 60 rule 6(3) requires him to do so unless a contrary order is made and there is no justification for making any contrary order. I will read out some proposed orders for the comments of the representatives of the parties.

I would order:

1. That the time for filing and serving the applicant’s summary of argument and draft notice of appeal be extended until 18 November 2003 and that those documents be filed and served on or before that day;

2. That the applicant’s application for special leave to appeal filed on 10 December 2002 be reinstated;

3. That the applicant have leave to amend his application for special leave to appeal so as to include the ground foreshadowed in exhibit DDB2 to the affidavit of Deslie Danielle Billich and that the applicant file and serve the amended application on or before 18 November 2003;

4. That the applicant pay the respondent’s costs of the summons;

5. Certify for counsel.

Does either party have any problem with those orders?

MR BARRETT: No, so far as the applicant is concerned, your Honour.

HIS HONOUR: Yes, thank you.

MR RODER: No, your Honour.

HIS HONOUR: Is there any additional order that either side would wish to be made?

MR BARRETT: No, thank you, your Honour.

MR RODER: No, your Honour.

HIS HONOUR: I make those orders. Thank you for your attendance, gentlemen. The Court will now adjourn.

AT 9.03 AM THE MATTER WAS CONCLUDED