Applicants S111/2004, Ex parte - Re MIMIA & Ors [2004] HCATrans 152 (5 May 2004)

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Applicants S111/2004, Ex parte - Re MIMIA & Ors [2004] HCATrans 152 (5 May 2004)

Last Updated: 11 May 2004

[2004] HCATrans 152

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S111 of 2004

In the matter of -

An application for Writs of Prohibition, Certiorari and Mandamus and Injunctions against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

MR S. SAMIUDDIN, DELEGATE OF THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

JULIE BAILE, MEMBER OF THE MIGRATION REVIEW TRIBUNAL

Third Respondent

Ex parte –

APPLICANTS S111/2004

Applicants/Prosecutors

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 5 MAY 2004, AT 10.45 AM

Copyright in the High Court of Australia

__________________

APPLICANT S111/2004 appeared in person.

MR R.T. BEECH-JONES: If your Honour pleases, I appear on behalf of the first respondent. (instructed by Australian Government Solicitor)

HIS HONOUR: You might swear the interpreter.

KHALID RASHID SAGER, affirmed as interpreter:

HIS HONOUR: Unfortunately, your documents do not disclose any legal ground upon which I could make orders that you seek. Are you in a position to get assistance in preparing this application that you make?

APPLICANT S111/2004 (through interpreter): Yes, I need time.

HIS HONOUR: You certainly need some time, it seems to me. Do not answer this if you do not want to, but did you prepare these documents or did somebody else? You do not have to tell me who it is and you do not even have to answer the question if you do not want to.

APPLICANT S111/2004 (through interpreter): A friend help me.

HIS HONOUR: Is the friend legally trained?

APPLICANT S111/2004 (through interpreter): He got some help through Internet.

HIS HONOUR: Just take a seat for a moment, please. Mr Beech-Jones, there is plainly nothing in the affidavit which would enable me to make orders nisi at the moment and in those circumstances I would not be prepared to send the matter down to the Federal Court in the condition in which it is. However, I do not want to place the applicant in a position where she loses because her documents are not in order. I want to give her an opportunity to amend and get some further assistance. Perhaps somebody from the Bar Association may be able to help in the case.

MR BEECH-JONES: I hear what your Honour says. Can I just mention one matter. In the outline of submissions I just need to correct something for the record. I refer to the prosecutor being a citizen of Bangladesh.

HIS HONOUR: Yes, she is a citizen of Fiji, not Bangladesh.

MR BEECH-JONES: Yes. Can I just answer your Honour this way. With respect, it is not so much that her documents are not in order; it is that the case really does not have any merit. Of course, that is a big submission to make but all that there is is before your Honour, that is, the file. All we have is a Delegate’s decision in response to an application. Unfortunately for her, she appears to have been confused and lodged a review application with the wrong body.

HIS HONOUR: I appreciate that.

MR BEECH-JONES: In terms of ascertaining legal error – and, of course, it is no substitute to say that another lawyer may take a different view, but it is always going to be a matter of simply reviewing the Delegate’s decision.

HIS HONOUR: Yes, but the affidavit does not even really set out what the grounds are. There is just nothing there really.

MR BEECH-JONES: There is nothing in the affidavit but, your Honour, there is nothing in the decision to suggest that there could be a ground. That is really the point I am seeking to make. That is obviously a difficult judgment for your Honour to make, but it is not, with respect, really that complicated in terms of what her claims were. It was a fairly straightforward application she made and the Delegate dealt with it in fairly unremarkable terms.

HIS HONOUR: I do not know whether you have read my recent judgment about personal persecution which we delivered last week.

MR BEECH-JONES: I am embarrassed to say I have not, your Honour. Could I gently inquire whether it takes Khawar any further?

HIS HONOUR: It certainly does. It is Applicant 152 last week. In my judgment, and Justice Kirby said it was an important point that will have to be looked at some time, the question is whether or not it is necessary for there to be any government intervention in the matter.

MR BEECH-JONES: Again, I should be careful in talking about a judgment I do not know, but I do not think even in such a case, if the agent of persecution is a third party, it nevertheless must be done for a Convention reason.

HIS HONOUR: That is right.

MR BEECH-JONES: That would be the problem here.

HIS HONOUR: There is a real problem.

MR BEECH-JONES: Could I just say one other thing, your Honour. I understand what your Honour says about the Bar Association. Our only apprehension is allowing an adjournment where we really do not know if there is anything to happen. It is not as though a legal adviser has turned up saying, “I was instructed last night”.

HIS HONOUR: I would adjourn the matter only till next week.

MR BEECH-JONES: I see. I do not have anything further to say, your Honour.

HIS HONOUR: I think in fairness to the applicant that she ought to be given some opportunity. Thank you, Mr Beech-Jones.

Madam, the way your case is framed in the documents that you have put before the Court, you cannot succeed. If the documents stayed the same way, I would have to dismiss this application. So what I propose to do, unless you object to it, is to give you an adjournment until next Wednesday to enable you to get advice to plead your case in a better way.

APPLICANT S111/2004 (through interpreter): I think I need a little more time than one week because one week is very little time.

HIS HONOUR: It may not be very long from your point but the matter has to be dealt with and I am not going to give an adjournment for more than a week. Strictly speaking, it is up to you to file proper documents and the documents have not been filed. They just do not disclose any right which would entitle you to succeed against the Minister.

So I will adjourn the matter until Thursday of next week and you should go to the New South Wales Bar Association to see if a lawyer can be made available to help you. So I recommend that you seek the assistance of the Bar Association to look at your matter. They may not be able to help you, but the matter cannot be allowed to linger on. It will have to come before me tomorrow week and then I will decide what to do with the case. So this case will be adjourned until 10.00 am on Thursday, 13 May 2004.

Now, the New South Wales Bar Association is in the building just next door and I advise you to get your papers and go and see the Bar Association as soon as you can, preferably today. Anything, Mr Beech-Jones?

MR BEECH-JONES: No, nothing, your Honour – if your Honour could certify for counsel I suppose for today.

HIS HONOUR: Yes, I certify for the attendance of counsel today. I should also note that the Deputy Registrar has certified that he has been informed by the solicitor for the second and third respondents that the second and third respondents will submit to any order of the Court save as to costs. Adjourn the Court.

AT 10.59 AM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 13 MAY 2004