NAGW & Ors v MIMIA [2004] HCATrans 226 (18 June 2004)

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NAGW & Ors v MIMIA [2004] HCATrans 226 (18 June 2004)

Last Updated: 5 July 2004

[2004] HCATrans 226

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S485 of 2003

B e t w e e n -

NAGW AND NAGX AND NAGY AND NAGZ AND NAHA AND NAHB

Applicants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 JUNE 2004, AT 2.15 PM

Copyright in the High Court of Australia

NAGW appeared in person on behalf of all of the applicants.

MR J.D. SMITH: May it please the Court, I appear on behalf of the Minister. (instructed by Sparke Helmore).

KIRBY J: Yes. Now, you are the applicant in these proceedings?

NAGW (through interpreter): Yes.

KIRBY J: And you are appearing with an interpreter. I will ask the Court Officer to swear the interpreter.

IQBAL HYE CHOWDHURY, affirmed as interpreter:

KIRBY J: Yes, thank you very much. You may go back and stand beside the applicant. You are interpreting from the Bengali language, are you?

THE INTERPRETER: Yes.

KIRBY J: Yes, very well. Well now, would you explain to the applicant that we do not refer to him by name because the Act of Parliament states that we are to refer to him only by an identifier so that no prejudice will come to him by reason of his taking part in these proceedings. Does he understand that?

THE INTERPRETER: Yes.

KIRBY J: We mean no discourtesy to him by not using his name.

THE INTERPRETER: Yes.

KIRBY J: Very well. Now, he understands that he has 20 minutes in which to address the Court?

THE INTERPRETER: Yes.

KIRBY J: He does not have to take up all of that time if he does not need to because we have the written documents and we have read them. Yes, very well, he should come to the central microphone and he can now say what he wishes to say to the Court.

NAGW (through interpreter): My plea to this Honourable Justice is that, because I do not understand the language of law, I just work myself and because of my financial difficulties, that is why I could not engage a barrister. My main point is I have got a lot of problems. On the basis of country information, RRT and all other courts below, they have rejected my application. I do not have any security of my life. Because of my insecurity, that is why I have come here to take the refuge. So in this case if I return to my country I will not be safe.

My children were born here and they came here and they are now studying over here. There is nobody in my family who derives – who earns. I have to manage everything by myself. I am facing a lot of financial problem. Despite that, despite of my financial difficulties, I have been living here peacefully.

KIRBY J: Does the applicant understand that this Court, as the final Court of Australia, does not have the power or the function to consider his case on the merits, but can only interfere if there is shown a jurisdictional error or an error of law?

NAGW (through interpreter): I have told you that I do not understand this legal aspect.

KIRBY J: I realise that, but we have to comply with the law, and the law limits what we can do in his case. The applicant’s claim came before a delegate of the Minister who rejected the claim for refugee status, and it was likewise rejected by the Refugee Review Tribunal. The Federal Court at first instance and then on appeal with three judges, found that there was no jurisdictional error or error of law that would authorise it to intervene. We can only intervene if he shows an error that authorises us to do so, and that includes jurisdictional error which includes, in turn, any breach of the rules of natural justice.

NAGW (through interpreter): Yes, it is there but I cannot show those points.

KIRBY J: The problem we have is that you have to establish your case in order to get the special leave to get into this Court, and on the face of the documents, there is no mistake or error on the way the Federal Court looked at the application to it from the decision of the Refugee Review Tribunal.

NAGW (through interpreter): I have stated some points in my submission.

KIRBY J: We have read those. Is there anything else that you want to say, or do you have any questions for me?

NAGW (through interpreter): No.

KIRBY J: Thank you, you may sit down for the moment and we will call on the barrister for the Minister. Well, Mr Smith, is this a case where it is an applicant from Bangladesh, and we have had other cases where the complaint was originally made when the Awami League was in power and then it was displaced by an election. I do not think that is this case, is it? Is the applicant’s arrival after the change of government in Bangladesh or before?

MR SMITH: The arrival was before, your Honour.

KIRBY J: Before. His complaint was that he was afraid of the fundamentalist government but that was the government of the Awami League, I think, or that was the government that was in power at the time he came to Australia. Is that correct?

MR SMITH: They were originally his claims, your Honour. He also made claims after October 2001 to fear the then current government, led by the BNP.

KIRBY J: He has had two children born, I take it they were twins, born in Australia since he arrived in Australia.

MR SMITH: Yes, your Honour, in 2001.

KIRBY J: Presumably those children would be affected by the coming decision of the Court in Singh. You are aware of that case?

MR SMITH: I am, your Honour, but not of the details of the case.

KIRBY J: Well Singh is the case where a child of Indian nationals who claimed refugee status was born in Australia, and it is claimed on behalf of the child that birth in Australia is sufficient to give the child Australian nationality, and that that is a constitutional right and cannot be taken away by any federal legislation that purports to take that right away. That is the matter that has been argued and stands reserved.

MR SMITH: Yes, I recall that matter now, your Honour. It would affect those children.

KIRBY J: It might be desirable that nothing should be done in this case until that matter has been decided by the Court. Perhaps you could convey that to your solicitor, and the solicitor could convey it to the Department. Is there anything else you wish to say apart from – what is the Muin and Lie
point? I realise these are common form applications, but is there anything in the Muin and Lie point in this case?

MR SMITH: No, your Honour, no. The Muin and Lie point as it is formulated in these arguments, or these submissions, is that the applicant was misled by the letter inviting him and his family to attend a hearing, into believing that the Tribunal had, in fact, examined all the material before it, when the reality was different. The difficulty with that argument is that there was no factual basis. The argument was not run below and because of that, there was no factual basis established, as there had been agreed before this Court in Muin and Lie.

KIRBY J: You say the only way in which it could be raised in the appellate jurisdiction would be by seeking to bring evidence, and that under the authority of the Court, that cannot be done.

MR SMITH: Yes, your Honour.

KIRBY J: Yes, very well. Is there anything else you wish to say for the Minister?

MR SMITH: No, your Honour.

KIRBY J: Thank you. Did the applicant understand what was just said to the barrister for the Minister?

NAGW (through interpreter): Yes, a little bit.

KIRBY J: There is a case that has been argued in the Court concerning the entitlement of children born in Australia to have Australian nationality. That would not affect the applicant or his wife or his other two children, but it might affect those children, depending on the outcome of that case.
Yes, very well, is there anything he wishes to say before the completion of his submissions?

NAGW (through interpreter): No, your Honour.

KIRBY J: Yes, very well, you may sit down.

The applicants are a family – a husband, a wife and four children. They arrived in Australia from Bangladesh on 9 July 2000. Two children have been born since their arrival, namely twins, on 25 October 2001. On 3 August 2000, the husband, wife and the two children alive at that time lodged applications for protection visas with the Department of Immigration and Multicultural and Indigenous Affairs. On 13 September 2000, a delegate of the Minister refused to grant them protection visas.

On 3 October 2000, the applicants sought review in the Refugee Review Tribunal. That Tribunal also refused relief to the applicants. The applicants then commenced proceedings in the Federal Court of Australia. Justice Wilcox found no error that would authorise the Federal Court to intervene in the matter. The applicants then appealed to the Full Court of the Federal Court of Australia. Chief Justice Black, Justice Heerey and Justice Finn dismissed that application. They were unconvinced of any error on the part of the decision-makers below authorising the Full Court’s intervention.

The applicants have now sought special leave to appeal to this Court. That application must be refused. No indication has been made of any error of jurisdiction or any error of law that would authorise this Court to intervene. I explained to the applicant that this Court is not a Court authorised to decide his appeal on its full merits. It is confined to the correction of errors of law and jurisdictional error, including want of procedural fairness.

In the course of the argument, attention has been drawn to the decision of the Court that stands for judgment in Singh v The Minister for Immigration and Multicultural and Indigenous Affairs. It is a matter for consideration as to whether, pending the outcome of that case, the Minister would refrain from action to remove the family from Australia, having regard to the fact that two of the children of the applicants appear to be affected by that decision. The applicant is unrepresented. I have explained that development to him. It will be a matter for him to take whatever course he wishes and for the Minister to do that which is right.

The application must be refused. The applicant must pay the Minister’s costs.

MR SMITH: Your Honour, might I be heard in respect of costs?

KIRBY J: Yes.

MR SMITH: The respondent would only seek costs against two of the applicants, being the adult parents, and they are named as the first and fourth. There is a child who is no longer a minor. The respondent does not seek costs against that applicant.

KIRBY J: [To the interpreter] Would you explain to the applicant that normally when cases are dismissed the applicant is ordered to pay the costs. The Minister has indicated that she does not wish to recover the costs from the children, but only from the two adult applicants, the mother and the father. We realise that there is a difference actually recovering the costs and making an order for the costs. If people do not have the money it sometimes is difficult, or impossible, to recover costs. However, the formal order that is normally made is that the applicants pay the costs. In this case, that order will be made only against the father and the mother, not against the children. Does the applicant wish to say anything in relation to the costs?

NAGW (through interpreter): No.

KIRBY J: Very well, the order is corrected. The order of the Court is application refused. The applicants, the parents, shall pay the Minister’s costs. The Court will now adjourn to the next sitting.

AT 2.32 PM THE MATTER WAS CONCLUDED