NABC v MIMIA [2004] HCATrans 276 (6 August 2004)

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NABC v MIMIA [2004] HCATrans 276 (6 August 2004)

Last Updated: 19 August 2004

[2004] HCATrans 276

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S401 of 2003

B e t w e e n -

NABC

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 AUGUST 2004, AT 10.57 AM

Copyright in the High Court of Australia

MR S.B. LLOYD: If the Court pleases, I appear for the respondent. (instructed by Blake Dawson Waldron)

GUMMOW J: Yes, Mr Lloyd.

MR LLOYD: I understand that medical certificates were faxed to the Court. I am not sure if the Court wants to have his name called? It appears on page 1 of the application book.

GUMMOW J: Yes. Officer, call the applicant’s name outside the Court, if you would.

COURT OFFICER: No appearance, your Honour.

GUMMOW J: Thank you, Officer. Yes, Mr Lloyd. This appears to involve reliance on Muin and Lie without a necessary factual substratum for it.

MR LLOYD: That is so, your Honour. The respondent’s position is simple, that again the substance of the case is extremely weak. This is a case where the applicant did not turn up to a hearing of the Tribunal, and, although having received the invitation, indicated that he would show up, did not show up, did not explain why he did not show up. Eventually the Tribunal dismissed the application as being insufficiently satisfied on the paper the claims in writing, and, not surprisingly, the two courts below did not see any error. As I recall, his Honour, Justice Wilcox characterised it, when it was before his Honour on appeal, as having “not advanced any contention of error of law or failure to follow proper procedures”.

I understand that there are medical certificates before the Court. In my submission, first of all, they are not evidence, and, even if they were in a more proper form, there is no basis, really, to support the opinions there stated. If the applicant had some sort of reasonable prospect of success, I can understand the Court might think it appropriate to adjourn, but, in my submission, in this matter - - -

GUMMOW J: One thing that does occur to us, Mr Lloyd, is that a number of these applications today appear to be in common form.

MR LLOYD: Yes, that is so, your Honour.

GUMMOW J: And to be perhaps typed on the same typewriter.

MR LLOYD: Yes, although I am not sure that these two are. I think there are two very similar versions and perhaps other ones before your Honours
today fall into the categories. My suspicion, and I have no evidence of it, is that there are a couple of migration agents who see the provision of this material as assisting their clients - - -

GUMMOW J: They charge a fee, no doubt.

MR LLOYD: Yes, they do, although to a person the people always deny that that is the position, so it is very hard to establish that.

GUMMOW J: Yes. Well, anyhow, that is a matter, I suppose, primarily for your client.

MR LLOYD: Indeed. If the Court pleases.

GUMMOW J: Thank you, Mr Lloyd.

This matter has been called outside the Court. The applicant did not respond. The Court holds what are put forward as medical certificates and those are said to be in support of an application for adjournment of today’s application.

We have looked at the matter on the papers. We note that this is not the first occasion in this series of attendances where in fact there has been a failure to appear. We would, of course, grant the adjournment were we of a view that there was some substance in the grounds put forward, but, looking at the matter, it appears to us that there are no prospects of success. We note that there is particular reliance apparently placed on Muin, but that lacks an evidentiary basis that would be required.

Accordingly, in these circumstances, the application for adjournment is refused and the application for special leave itself is refused with costs.

We will adjourn to reconstitute.

AT 11.02 AM THE MATTER WAS CONCLUDED