NACG v MIMIA [2004] HCATrans 97 (2 April 2004)

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NACG v MIMIA [2004] HCATrans 97 (2 April 2004)

Last Updated: 8 April 2004

[2004] HCATrans 097

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S437 of 2003

B e t w e e n -

NACG

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 APRIL 2004, AT 12.23 PM

Copyright in the High Court of Australia

NACG appeared in person.

MR R.J. BROMWICH: May it please the Court, I appear for the respondent. (instructed by Blake Dawson Waldron)

GLEESON CJ: Interpreter, we will just have you sworn, thank you.

FEN CHUAN TSAI, affirmed as interpreter:

GLEESON CJ: Yes, go ahead.

NACG (through interpreter): Thank you, your Honours, for providing me this chance for me to express myself. I went to the directions hearing at this court and I was told that my formal hearing day would be two weeks later. I told the judge that I did not have a solicitor and that I need more time to prepare my submission. However, the judge just asked the other party, the solicitor from the other party, whether two weeks is appropriate.

The solicitor of the other party looked at his or her timetable and then said, “Yes”, but the court did not ask me whether the time is appropriate for me. I told the court that I was in the detention centre, that the living standard there was very bad. You cannot imagine how bad it was inside there. There were only three computers provided for more than 250 detainees and only one printer was provided and the computers would only be accessible from 9.00 am to 4.00 pm.

Sometimes if the computers were occupied by the other detainees, I need to wait for more than a few days. Sometimes the ink run out and we have to wait for more than two to three weeks for the ink to be replaced. And I was confined in the detention centre. I could not go out. I need my friend to come over so – I could only ask my friend to come over to help me with my case but my friend was away – was far away from where I was detained. Sometimes this friend was very busy, so busy that he or she could not come to visit me.

GLEESON CJ: May I interrupt you to say that your application for special leave to appeal was filed on 30 July 2003. Is that correct?

NACG (through interpreter): Yes.

GLEESON CJ: Are you suggesting that you have not had sufficient time between July 2003 and April 2004 to prepare your argument?

NACG (through interpreter): I was referring to the timeframe I was given between the directions hearing to the hearing date at Federal Court.

GLEESON CJ: And I am referring to the time between July 2003 and the present. Are you suggesting that you did not have sufficient time between July 2003 and the present to prepare your argument?

NACG (through interpreter): Yes, that was not enough time for me. That is why I need to lodge an appeal – special leave to this High Court. My case was struck out at Federal Court because I did not have enough time to prepare. So I was unable to prepare my submission within that two weeks time. At the Federal Court I had expressed that I wished to have more time to prepare my submission. I was only asking the court there to give me a fair time. I was not asking for sympathy.

This case involved my life – my whole life. When I was reading my unfinished submission, I had noticed that there was some more information that I should have provided to the Federal Court but I had not – the Federal Magistrates Court. The judge asked me why was it that I did not provide this information to the Federal Magistrates Court. My answer was that I did not have any experience so I need assistance from my friend and I need more time because of this to prepare my submission.

This was why at the direction hearing I had already expressed to the magistrate that I need more time, however, the magistrate just neglect my request. So the magistrate had just rejected my application without any fair sense simply because I could not provide my submission within the time set, therefore, the magistrate only accept the submissions from the other party. It is apparently that my case was treated partially and treated with prejudice.

I was only making a very small request, however, it was rejected. I believe I have full reasons, however, the magistrate did not offer me with any chance. Everyone should be treated equally before the court. However, this kind of unfairness happens in this country, even in this well-developed country, Australia. I came from a country which practice dictatorship. I could not obtain freedom there, yet after my arrival in Australia I still did not receive any equality.

At the time I knew Australia, this country, was in 2000. At that time Australia was holding the Olympic Games. I had the impression then from this country – that was my dream to come to this country, but what have I got after my arrival here? I was detained in a detention centre, treated without any humanity for about – for nearly 20 weeks – for 20 months, nearly 20 months, even though I did not have any criminal records.

I just wanted to get fairness from the Federal Court, yet I did not get any, so I was very disappointed. Well, I believe that I came to obtain fairness and equality here in this High Court. This is why I want to apply for special leave to appeal. I want to provide more argument and evidence to this Court which cannot be provided to the Federal Court.

At the RRT I was interviewed on – I was given the decision on the same day I was interviewed. My interview at RRT started from 10.30 in the morning and finished at 11.30, but I received the decision from RRT through a fax transmission at 5.00 pm on the same day. I believe that the member of the RRT should have finished his or her lunch before he or she prepared the decision, however, the decision was not faxed directly from the RRT it was from DIMIA.

RRT passed the decision to DIMIA before 4.00 pm and DIMIA, they need time to go to – to come to my detention centre. By calculating the time, you can say that RRT only spent less than an hour to make this decision which proved that RRT had already prejudged my case. My life relies on this case, yet the member tried his or her best to reject my application as soon as possible. The member of the RRT did not consider my verbal evidence.

The member believed that my verbal evidence at the interview with the RRT were all fabricated, yet they did not have substantial evidence to say that these were fabricated, they just speculate. The interview for me was only a form. It did not have any real meaning for me. The member of the RRT had prejudged my case and had neglected what I had said, so the whole procedure was not legal.

At RRT at times I had expressed it in simple English, yet the member of the RRT stopped me from speaking in English. The member requested me to stop speaking in English, but I believe that with some kind of information it was more directly – it was better for me to speak in English because it would be more directly. I had been studying six months of English in Australia and the member of RRT should take that into consideration, yet the member did not allow me to speak even some simple English.

RRT member wanted to give me a stressful situation, trying to make me feel panic so that I would answer wrongly. Sometimes the member accused me of answering too – of taking too much time to answer. At that time I was very nervous, however, the member of the RRT did not provide me with a peaceful environment. The member just wanted to find out any
mistakes I would have made and then take this as an excuse to dismiss my appeal. So during the whole interview – the procedure of the interview I was very nervous and felt very stressful.

GLEESON CJ: Yes. Your time is up. Your time has expired, thank you.

NACG: Okay. Thank you.

GLEESON CJ: This is an application for special leave to appeal against a decision of Justice Whitlam in the Federal Court of Australia given on 11 July 2003. The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave, and the application is refused with costs.

The Court will adjourn until 2.00 pm.

AT 12.44 PM THE MATTER WAS CONCLUDED