NAMK of 2002 v MIMIA [2004] HCATrans 147 (30 April 2004)

--

NAMK of 2002 v MIMIA [2004] HCATrans 147 (30 April 2004)

Last Updated: 10 May 2004

[2004] HCATrans 147

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S272 of 2003

B e t w e e n -

NAMK OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 APRIL 2004, AT 12.46 PM

Copyright in the High Court of Australia

MR T. REILLY: May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitor)

CALLINAN J: Thank you. You have been engaged to interpret again, Mr Chowdhury, have you? Do you know whether your client is outside?

THE INTERPRETER: No, I have not seen anybody, actually.

CALLINAN J: By what name do you know him?

THE INTERPRETER: I do not know. I do not have it.

CALLINAN J: You do not know anything about him? Would you please call the name of the applicant outside the Court please, Court Officer. I think I will have you call him by his actual name, which will be provided to you by the associates. Would you call that name and the name by which he is also known three times outside the Court, please.

COURT OFFICER: No appearance, your Honour.

CALLINAN J: Well, Mr Reilly, what should we do about this matter?

MR REILLY: Your Honour, it should be dismissed. The applicant also did not appear before the Full Court. Your Honours can infer in the absence of anything else that the applicant is just using court process to stay in Australia rather than having any genuine basis to seek judicial review, let alone special leave. I would also remind the Court that the Refugee Review Tribunal found that the applicant was not credible and had fabricated his claims.

CALLINAN J: What is the default of appearance rule?

MR REILLY: Your Honour, I do not think there is one - in the High Court Rules?

CALLINAN J: Yes.

MR REILLY: I do not think there is one. There is now in the Federal Court and Federal Magistrate’s Court because this happens so often in these matters.

CALLINAN J: We will deal with the matter, Mr Reilly.

The Court has considered the written material of the applicant. The Refugee Review Tribunal rejected the applicant’s application for a protection visa because it disbelieved the applicant’s claim to have been a member of a persecuted political party in Bangladesh and to have been the victim of violence. It drew attention to the applicant’s reliance on forged documents. Justice Jacobson rejected the applicant’s application for review of the Tribunal’s decision on the ground that the applicant’s complaints were largely factual. He did not accept the applicant’s contention that the Tribunal was biased. An appeal to the Full Federal Court failed on the same grounds.

The primary ground on which special leave is sought is a contention that the Tribunal denied the applicant procedural fairness. As with many other unrepresented persons seeking protection visas who apply for special leave to appeal to this Court, the applicant, whose summary of argument was prepared by a person having some legal knowledge, referred to Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966. The point was not taken below. However, the applicant did not demonstrate any factual basis for the application of that case. Special leave is refused with costs.

The Court will adjourn until 2.00 pm on Tuesday, 4 May next in Sydney.

AT 12.52 PM THE MATTER WAS CONCLUDED