WAJP v MIMIA [2005] HCATrans 18 (4 February 2005)

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WAJP v MIMIA [2005] HCATrans 18 (4 February 2005)

Last Updated: 17 February 2005

[2005] HCATrans 018

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P100 of 2003

B e t w e e n -

WAJP

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 FEBRUARY 2005, AT 3,39 PM

Copyright in the High Court of Australia

MR J.D. ALLANSON: May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitor)

KIRBY J: Mr Allanson, is the applicant, WAJP, present in the Court in Perth?

MR ALLANSON: He is not, your Honour.

KIRBY J: Is he in migration custody, or not?

MR ALLANSON: Yes, he is in detention, your Honour.

KIRBY J: Is he aware of the proceedings before the Court today?

MR ALLANSON: I am sorry, I will just check with my instructing solicitor, if I might, if we have been notified of that. Your Honour, we do not notify them. It is normally, as we understand it, the Court that notifies him so we do not know whether he has been told or not.

HAYNE J: The ordinary practice of the Court is that a hearing letter goes to both sides, as I understand it.

MR ALLANSON: That is what I understood, your Honour.

KIRBY J: The Minister is appearing by counsel, as is her right, and wishes to supplement the written argument with oral argument. “Indicate whether the applicant seeks to supplement this summary with oral argument” - that is in a form which is reproduced on page 51 of the application papers and there is a note attached. Now, is there any place where the applicant has indicated that he is content that we deal with the matter on the papers?

MR ALLANSON: There is nothing in the papers, your Honour.

KIRBY J: What are we to do in these circumstances? It is a rather unequal passage of arms, is it not? If we establish a video link to Perth, why can we not establish a video link to Port Hedland or somewhere where the applicant could actually see a matter affecting his liberty, rights, dignity, determined by the Court. I just do not understand. That would not be a technological problem, I would not have thought.

MR ALLANSON: Technologically, it is possible, your Honour. In matters at first instance we have.....way hook-ups which link a detention centre into the courts.

KIRBY J: Yes, well what do you, on behalf of the Minister, submit that the Court should do in these circumstances?

MR ALLANSON: Deal with it on the papers, your Honour.

KIRBY J: How do we know that the applicant (a) knows that the matter is before us today; (b) is content that it be dealt with on the papers; (c) might wish, if he cannot have either a direct or indirect oral submission, the facility to put in extra written submissions so that the written submissions would be fully satisfactory from his point of view. We often have a note that the person is content that the matter be dealt with on the papers, but we do not have that note in this case.

MR ALLANSON: Yes, your Honour. My instructing solicitor has just given me a copy of a letter of the Court dated 24 January which was to the applicant who is in the Baxter detention facility informing him that the matter was listed for today.

KIRBY J: What date was that notice given?

MR ALLANSON: On 24 January 2005. The letter says in its second paragraph:

I note that you have not indicated that you will seek to supplement your summary of argument with oral submissions -

and then speaks of how to obtain a result of the hearing. That is signed by the Deputy Registrar and dated 24 January.

KIRBY J: That is a note from the Deputy Registrar of the Court to the applicant. It is not from your solicitor to the applicant, is that your understanding? Is that the document in front of you?

MR ALLANSON: Yes, your Honour. It is on the letterhead of the High Court and it is signed by the Deputy Registrar of the Court.

KIRBY J: Do you or your solicitor know what the applicant meant by “Attached”? Is there some document, in addition to that which is at page 51, that attaches any document that could be referred to in that answer to part VII of the form?

MR ALLANSON: There is no document that was served.

KIRBY J: Perhaps it might mean that “Attached” is a reference to the whole summary of argument on pages 49, 50 and 51.

MR ALLANSON: It could, your Honour. I am trying to remember, having done these matters, whether the applicant appeared. I cannot recall whether the applicant appeared by an interpreter or whether he spoke English. It may even be, your Honour, that this has been the document that has been prepared for him as indeed the grounds of appeal in each case showed signs of having been prepared for him rather than by him.

KIRBY J: As the applicant is not here, in light of the notice to the applicant of the Deputy Registrar we are content to deal with it today, but I think it might be appropriate, subject to what you have to say, that you just rely on your written submissions.

MR ALLANSON: Certainly, your Honour. We would only seek to supplement our written submissions if indeed there were oral argument put against us.

KIRBY J: That is not how it is expressed in the Minister’s written submissions.

MR ALLANSON: No, your Honour.

KIRBY J: It says the respondent proposes to appear by his counsel and supplement his summary with oral argument which, if I can say so, rubs salt into the wound by indicating an intention of the Minister to appear and supplement whilst the applicant is in Baxter Detention Centre and, on the face of the record, has had notification, but has not signified whether he wishes to be here and given the chance to be heard, which as Justice Hayne said, is the normal procedure of a court of law in this country.

MR ALLANSON: Yes, your Honour, that is a statement that is made at the time when the summary is prepared some months ago, but I certainly would not seek to rely on oral submissions made in the absence of the applicant.

KIRBY J: Yes, thank you very much, Mr Allanson.

When this matter was listed today for hearing, there was an appearance by counsel for the Minister for Immigration and Multicultural and Indigenous Affairs. There was no appearance for the applicant. However, counsel drew to the Court’s notice a copy of a document sent to the applicant by the Deputy Registrar of the Court, dated 24 January 2005. That document on its face notified the applicant of the fact that the application was listed before the Court for hearing today and contained a statement that the applicant had not indicated that he wished to be heard orally. On this basis, the Court is prepared to assume, in the circumstances, that the applicant does not wish to be heard orally. We will interpret the statement in his written document as having that effect.

The applicant unsuccessfully sought a protection visa under the Migration Act 1958 (Cth). He failed before the delegate of the Minister, the Refugee Review Tribunal, before the Federal Magistrates Court and in the Federal Court of Australia, where Justice Carr exercised the powers of the Full Court pursuant to section 25(1A) of the Federal Court of Australia Act 1976 (Cth).

The applicant is a national of Sri Lanka. The Refugee Review Tribunal, in dismissing his application, made strong credibility findings against his evidence and his claims of political persecution in Sri Lanka. To obtain relief in this Court the applicant would have to establish jurisdictional error. In his written document, he has argued various points of fact and law. However, most of his arguments concern the merits of the decisions below which, as such, are not the concern of judicial review.

No jurisdictional error has been demonstrated. We are not convinced that error has been shown in the approach and conclusions of the Federal Court. Special leave to appeal is therefore refused.

The Court will now adjourn for a very short time, so that Justice Hayne can conduct a directions hearing by video link to Perth.

MR ALLANSON: Your Honour, if - - -

KIRBY J: Yes?

MR ALLANSON: Might your Honour – in refusing special leave, your Honour made no order with regard to costs. We would ask that the order include costs.

KIRBY J: Your solicitor knew that the notification had been given to the applicant, the applicant was in detention, the applicant is not present. You agree that in the event that the applicant is not present, you would not wish to supplement the submissions with oral submissions. Why, in these circumstances, should the costs include the costs of counsel?

MR ALLANSON: Because it is only with the applicant not turning up that we know that the situation has worked out the way it has. It is not something we are raising for the first time, your Honour. In the written summary of argument, we have, at page 55 of the application book, said we seek no special order, but seek the usual order as to costs in the event that leave is refused.

HAYNE J: Why should that order not be expressed as “with costs, excluding the costs of today”?

MR ALLANSON: Well, again, your Honour, it is only on the applicant not turning up that we are aware that we should not be here.

KIRBY J: Will you forgive me if I am a little blunt? The Minister would be the person best able to know whether the applicant was going to turn up, because the Minister is responsible for the conduct of the detention centre. If the applicant is not going to turn up and if you are not going, therefore, to be putting oral submissions, it seems a little unreasonable, to say the least, that you should ask for costs of today.

MR ALLANSON: We have made the submission, your Honour - - -

KIRBY J: Do you get the general drift, the approach of the Court? Do you understand what the Court is indicating?

MR ALLANSON: Yes, certainly, your Honour, and we can also make sure that the transcript of what has been said today is brought to the attention of the department.

KIRBY J: And, I would indicate, our disposition of the application should be brought to the attention of the applicant by the Registrar. The order is that the application for special leave to appeal is refused. The applicant must pay the respondent’s costs, excluding the costs of today.

MR ALLANSON: If your Honours please.

KIRBY J: The Court will now adjourn for a short time in order to be reconstituted.

AT 3.52 PM THE MATTER WAS CONCLUDED