NAEJ & Ors v MIMIA [2004] HCATrans 399 (8 October 2004)

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NAEJ & Ors v MIMIA [2004] HCATrans 399 (8 October 2004)

Last Updated: 18 October 2004

[2004] HCATrans 399

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S532 of 2003

B e t w e e n -

NAEJ

First Applicant

NAEK

Second Applicant

NAEL

Third Applicant

NAEM

Fourth Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 2004, AT 3.01 PM

Copyright in the High Court of Australia

__________________

APPLICANTS NAEK, NAEL and NAEM appeared in person.

MR A. MARKUS: If your Honours please, I appear for the respondent. (instructed by Andrew Crockett)

KIRBY J: I am informed by the Registrar that one of the applicants, NAEJ, has filed a notice of discontinuance of the proceedings. Gentlemen, you have an interpreter present, is that correct?

NAEK: Yes.

KIRBY J: Which is the language?

NAEK: Malayalam.

KIRBY J: All right. Do you need an interpreter or can you speak to the Court without the interpreter? You understand you have 20 minutes to speak.

NAEK: We can try always, though sometimes - - -

THEVARU SREEDHARAN, affirmed as interpreter:

KIRBY J: Thank you very much. Thank you for coming to assist the Court today. Now, the applicants, have you decided amongst yourselves who will speak to the Court?

NAEK: Yes, sir.

KIRBY J: Who is going to speak?

NAEK: .....

KIRBY J: Very well, you can stand at the middle of the Court and speak into the microphone and you can say what you wish to say. Come to the middle there because the microphone will then record what you have to say. Perhaps, Mr Interpreter, you can go beside the speaker, so that if you need to you can translate. You understand that we have called you by those initials so that your names will not appear in the Internet and cause you any difficulty if subsequently you are returned to your country of nationality.

NAEK (through interpreter): Okay.

KIRBY J: We do not mean any discourtesy by not giving you your proper names. Yes, what do you have to say? We have read the documents which are in the application book and we know what the case is about. You now have a chance to say what you want to say orally to the Court.

NAEK (through interpreter): I did not get the documents to appear before the Federal Court in time, so I could not appear in the Federal Court in time.

KIRBY J: I realise that, but Justice Whitlam said that that did not matter because your case, as revealed in the reasons by the federal magistrate, was without possibility of success and doomed to fail and therefore that there would be no point in extending the time.

NAEK (through interpreter): I know they said you cannot win, but still we did not have enough time to give all the evidence to the court. Even now, we have given the evidence to court and still problem is going on back in India.

KIRBY J: I have to explain to you that we are not a Court that hears evidence. We have to deal on the record of the courts below. You are now in the highest Court of Australia and that is the way we operate.

NAEK (through interpreter): Because we thought we can win the case that is why we apply for the High Court. Still the problem is going on back in India.

KIRBY J: Your mistake is a common one, but we can only correct errors which you point to in the record of the court below, relevantly the Federal
Magistrates Court. Is there anything that you want to say in addition to what has been said in the written documents which have been put before the Court?

NAEK (through interpreter): No, nothing more than what is written there.

KIRBY J: Do any of the other applicants wish to say anything in support of the written documents that has not already been said?

NAEK (through interpreter): No, nothing else.

KIRBY J: Yes, very well. You may sit down. The Court does not need your assistance, Mr Markus.

The applicants are three Indian nationals who arrived in Australia to undergo training in cricket. Later they sought protection visas, claiming to be refugees. A delegate of the Minister refused their application for protection visas in June 2001. On 20 August 2002 the Refugee Review Tribunal confirmed that decision. The Tribunal was not satisfied that the applicants were, as they claimed, political activists.

In July 2003 Federal Magistrate Barnes dismissed the applicants’ applications for judicial review. The applicants then became out of time in which to appeal to the Federal Court of Australia. Justice Whitlam dismissed an application for leave to appeal out of time. This was despite the fact that the time default was short. His Honour said that it would be futile to extend time as it would not result in relief in the Federal Court. Now the applicants seek special leave to appeal to this Court.

When the substance of the matter is examined, as it was fully explained in the reasons of Federal Magistrate Barnes, it is clear that there are no arguable grounds on which this Court would grant special leave for any error of law or jurisdiction in this case. Upon that basis, it is unnecessary in these applications to decide the point raised by the Minister contending that there is no appeal to this Court from the type of order that Justice Whitlam made. We would leave the resolution of that issue to a case where it has to be decided.

The applications for special leave are therefore dismissed.

Do you ask for costs, Mr Markus?

MR MARKUS: Yes, your Honour.

KIRBY J: The Minister has asked for the payment of the costs of his representative. Normally such costs are ordered where an application fails. Whether the applicant will be in a position to pay the costs or not will remain for the future, but the Court’s order is that the application for special leave is dismissed with costs.

The transcript of what I have said today will be typed up and will be available to you next week.

The Court will now adjourn until 2 o’clock on Tuesday next, 12 October, in Sydney.

AT 3.10 PM THE MATTER WAS CONCLUDED