NAGN v MIMIA [2004] HCATrans 517 (30 November 2004)

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NAGN v MIMIA [2004] HCATrans 517 (30 November 2004)

Last Updated: 18 January 2005

[2004] HCATrans 517

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S627 of 2003

B e t w e e n -

NAGN

Applicant

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 TUESDAY, 30 NOVEMBER 2004, AT 3.07 PM

Copyright in the High Court of Australia

MR J.D. SMITH: Your Honour, I appear for the respondent. (instructed by Sparke Helmore)

KIRBY J: Yes, Mr Smith.

MR SMITH: I understand that the applicant will not appear.

KIRBY J: I see. I have a note on the Court record “In Person (With Interpreter)”, but you have a later understanding?

MR SMITH: I understand that my instructing solicitors just spoke to him by mobile phone and that he says that he has sent a letter to the Court.

KIRBY J: He said he has settled out of Court?

MR SMITH: Said he has sent a letter to the Court - - -

KIRBY J: I see.

MR SMITH: Suggesting that he is ill.

KIRBY J: The Deputy Registrar tells me that there is no such letter received by the Court.

MR SMITH: No, we have none either, your Honour.

KIRBY J: No. Did the applicant tell your instructing solicitor that he was asking for an adjournment or did he simply indicate that he expected the matter to proceed today, or neither?

MR SMITH: I will need to get those instructions, your Honour.

KIRBY J: Yes, if you would.

MR SMITH: The extent of what the applicant said was that he was not attending and that he had sent a letter saying that he was not attending because he was ill.

KIRBY J: Yes, very well. Do you have anything to add to the submissions that you have filed on behalf of the Minister?

MR SMITH: No, your Honour.

KIRBY J: Thank you. You may sit down.

This application has been listed before the Court today. The applicant is on notice of the listing of the case. When the matter was called the applicant did not appear. However, counsel for the respondent Minister informed the Court that his instructing solicitor had contacted the applicant by mobile ’phone and the applicant indicated that he would not be attending the Court today. He said that he had sent a letter to the Court. He indicated to the instructing solicitor that he was ill.

No document has been received by the Registry of the Court. The Court has no knowledge of any illness of the applicant, save for the report of the instructing solicitor for the respondent reported by counsel. There is no substantial reason why the Court should not proceed with the matter today, it having been in the list for some considerable time and proper steps not having been taken to secure an adjournment.

The applicant was unable to satisfy the Refugee Review Tribunal of the genuineness of his claims of persecution as a national in Bangladesh by reason of political affiliation or other activity. The Tribunal concluded that, even if his claims were genuine, the situation in that country was now such that the applicant could expect to look successfully to the courts of Bangladesh and the authorities of Bangladesh for protection.

A Federal Magistrate and the Federal Court of Australia were unable to discern any error of law or otherwise on the part of the Tribunal. In so deciding, the Federal Court, from which this application for special leave is brought, has not been shown to have erred.

The application should, therefore, be dismissed. The applicant must pay the Minister’s costs. The reasons of the Court will be taken out and sent to the applicant’s address within the next couple of days.

AT 3.11 PM THE MATTER WAS CONCLUDED