SZGGS v MIMIA & Anor [2006] HCATrans 352 (26 June 2006)

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SZGGS v MIMIA & Anor [2006] HCATrans 352 (26 June 2006)

Last Updated: 28 June 2006

[2006] HCATrans 352

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S106 of 2006

B e t w e e n -

SZGGS

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for reinstatement

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 26 JUNE 2006, AT 9.35 AM

Copyright in the High Court of Australia

SZGGS appeared in person.

MR A. MARKUS: If your Honour pleases, I appear for the first respondent. (instructed by Australian Government Solicitor)

HIS HONOUR: I have your summons which was filed on 22 May and your affidavit filed on 22 May and your written submissions. Is there anything else you want to rely on?

SZGGS: I need an interpreter, please.

HIS HONOUR: Have you made any attempt to arrange for one?

SZGGS: I need interpreter.

HIS HONOUR: Have you made any attempt to arrange for one?

SZGGS: No, actually, because I have no idea what – I do not know that.....the interpreter from the Court. That is why.....the interpreter today.

HIS HONOUR: Did you write out your own written submission that you filed on 21 June 2006?

SZGGS: I did it in my language and someone translate it.

HIS HONOUR: What about your affidavit?

SZGGS: I did myself in my language.

HIS HONOUR: What do we do, Mr Markus?

MR MARKUS: I am in your Honour’s hands. In my respectful submission, the applicant does speak quite good English. He understood what your Honour asked him, he responded in appropriate terms – his answers were responsive in any event. I should say that as I understand the position in previous proceedings in the Federal Court, he did have an interpreter available to assist him if needed. Ultimately I cannot – if the applicant insists that he needs an interpreter, I am not in a position to say he does not, although, as I said, it appears to me that he certainly understood your Honour’s questions and was able to respond to them.

HIS HONOUR: Court will adjourn for a short time, the purpose of the adjournment being to see whether a Bengali interpreter can be obtained.

MR MARKUS: Thank you, your Honour.

AT 9.39 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.50 AM:

HIS HONOUR: Mr Markus, will you be available at 11.15?

MR MARKUS: Thank you, your Honour.

HIS HONOUR: An interpreter will be here at 11.15. You must stay here. Do not go away, just wait for that interpreter to come. There is one other thing I should raise. On 11 April 2006 the High Court Registry sent you a letter – do you remember that – explaining how the rules operate?

SZGGS: I could not understand the - - -

HIS HONOUR: Mr Markus, do you have a copy of the letter of 11 April that I could have a look at?

MR MARKUS: Yes, your Honour.

HIS HONOUR: Secondly, do you have a copy of the letter of 9 May in which the applicant was advised of the fact that the proceedings were deemed to be terminated?

MR MARKUS: Yes, your Honour.

HIS HONOUR: You see those two letters? You are familiar with those letters, are you not?

SZGGS: Sorry?

HIS HONOUR: You have seen those letters before, have you not?

SZGGS: Yes.

HIS HONOUR: If they could be handed up.

MR MARKUS: Thank you, your Honour.

HIS HONOUR: We will adjourn until 11.15.

AT 9.52 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.03 AM:

HIS HONOUR: Thank you very much for attending. Would you go into the witness box so that you can be sworn.

MOHAMMAD SHAMSUL ARAFEEN, sworn as interpreter:

HIS HONOUR: When we adjourned two letters were handed up of 11 April 2006 and 9 May 2006. I will hand them back but I will mark the 11 April letter exhibit A and the 9 May 2006 letter exhibit B.

EXHIBIT A: Letter dated 11 April 2006

EXHIBIT B: Letter dated 9 May 2006

MR MARKUS: Thank you, your Honour. Could I just mention in relation to the 11 April letter, it just occurs to me that that particular letter actually is addressed to the respondent and not to the applicant. They only have copies of the document that was sent to us. We believe that a similar letter has been sent to the applicant.

HIS HONOUR: Could you just draw the applicant’s attention to paragraph 3 of his affidavit which was filed on 22 May. Just ask him whether the letter from the High Court dated 11 April was in the same terms of the letter of 11 April that the applicant saw just before the adjournment.

SZGGS (through interpreter): I received the letter of the 11th on 14 April.

HIS HONOUR: Thank you. Could you tell the applicant this. I have read the documents which he has filed in this Court. Is there anything further he wants to say?

SZGGS (through interpreter): Yes, I would like to say some more, your Honour. Your Honour, I have submitted my submission on 10 April and in reply Court issued a letter on 11 April and I have received that letter on 14 April. I did not understand what the letter say and I thought that I have submitted the application and along with that application I have submitted my submission and I thought that I will get a date of hearing from the Court. Then later on there was a letter issued on 9 May and I have received that letter and the letter expressed that that was abandoned. I really did not realise what is the actual meaning of “abandoned”. That is why I came to the Court. When I realised the proper meaning of the “abandoned”, then I realised that the case was already dismissed.

Then I again applied to the Registry that how will I submit my draft notice because, if I cannot submit that draft notice, it is not possible for me to go for further hearing. As Court has provided me with two samples, the one is the summons and the other one is affidavit. After reading these two sample, then I have written all my submission in my own language, then I seek help of someone to translate the whole submission to me and I apply to the Court.

As I present in front of the High Court, it is my humble request to your Honour – I apologise to the Court for my fault. Due to the language problem I could not understand properly. I had enough time in my hand because that letter was issued on the 11th and I received the letter on 14 April. I had enough time but even though I could not submit that draft notice of appeal, that is because I could not understand that.

So this is my humble request to your Honour. Please give me the permission and opportunity to submit the draft notice of appeal so that I can attend for main hearing. This is my humble request to your Honour, to the Court. This is a very genuine humanitarian issue. Beside that, I would like to request to the solicitor of the Minister.....really raise any obligation in this issue. Please do not do any sort of obligation on this matter, please. If I cannot submit this submission, then I will be really ruined. This is my request to your Honour. Please rescue me from this ruinness. This is my humanitarian appeal. This is my request to your Honour.

HIS HONOUR: Thank you. I need not trouble you, Mr Markus.

The applicant filed a summons on 22 May 2006 supported by an affidavit filed on the same day. The immediate background is as follows. On 15 March 2006 the Federal Court of Australia, Justice Rares, dismissed an application for leave to appeal filed by the applicant against the dismissal on 22 November 2005 by Federal Magistrate Scarlett of an application by the applicant for review of a decision by a delegate of the first respondent refusing an application for a protection visa on 21 July 1997.

On 10 April 2006 the applicant applied for special leave to appeal against the Federal Court’s order. On 9 May 2006 the applicant was advised by a Deputy Registrar that his application for special leave to appeal was deemed abandoned from 4.00 pm on 8 May 2006 pursuant to rule 41.10.4 of the High Court Rules by reason of the applicant’s failure to file a draft notice of appeal. By summons filed on 22 May 2006 the applicant applies for an order that the application for special leave be reinstated and the consequential order.

The history of the matter is as follows, being conveniently set out in paragraphs 6 to 20 of Federal Magistrate Scarlett’s reasons for judgment of 22 November 2005. The applicant is a citizen of Bangladesh who arrived in Australia on 27 December 1996. On 9 January 1997 the applicant lodged an application for a protection visa. On 21 July 1997 a delegate of the first respondent refused to grant the applicant a protection visa. On 15 August 1997 the applicant applied to the Refugee Review Tribunal for a review of the decision of the delegate. On 13 July 1999 the Tribunal affirmed the delegate’s decision.

On 9 August 1999 the applicant filed in the Federal Court of Australia an application for an order of review seeking review of the Tribunal’s decision. On 17 November 1999 Justice Einfeld of the Federal Court made orders dismissing the application: see Alam v Minister for Immigration and Multicultural and Indigenous Affairs [1999] FCA 1630. Thereafter the applicant joined what is known as the Muin and Lie class action: see Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601.

On 30 May 2003, pursuant to orders of Justice Gaudron made on 25 November 2002, the applicant through his then solicitors filed an affidavit sworn 26 May 2003 annexing a draft order nisi. That draft order nisi sought writs of mandamus and certiorari in respect of the Tribunal’s decision. Also on 30 May 2003, pursuant to Justice Gaudron’s orders, the proceeding was remitted instanter to the Federal Court. On 30 April 2004 Justice Emmett of the Federal Court by consent made orders that the application be dismissed. On 17 May 2004 the applicant filed an application in the Federal Magistrates Court of Australia seeking a review of the Tribunal’s decision.

On 25 August 2004 the first respondent filed a notice of motion seeking orders that the proceeding be dismissed as an abuse of the process of the Court. On 31 August 2004 the applicant filed a notice of discontinuance. That was the day before the first respondent’s motion had been listed for hearing on 1 September 2004. On 24 September 2004 the applicant filed in the Federal Court an application for extension of time to file and serve a notice of appeal from the orders of Justice Einfeld of 17 November 1999. On 9 December 2004 Justice Bennett of the Federal Court made orders that the application for extension of time be dismissed: see Applicant S1746 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1591.

On 6 January 2005 the applicant filed in this Court an application for special leave to appeal from the judgment of Justice Bennett. On 27 April 2005 Justices Hayne and Callinan made orders that the application for special leave to appeal be dismissed: see Applicant S1746 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 292. On 10 May 2005 the applicant filed in the Federal Magistrates Court an application seeking review of the Tribunal’s decision. On 26 May 2005 the first respondent filed a notice of motion seeking orders that those proceedings be dismissed as an abuse of the process of the court and/or as frivolous or vexatious. On 1 August 2005 Federal Magistrate Driver made orders that the application be dismissed as an abuse of process: see SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1071.

On 18 August 2005 the applicant filed in the Federal Court an application for leave to appeal from the orders of Federal Magistrate Driver. On 7 September 2005 Justice Emmett of the Federal Court made orders that the application for leave to appeal be dismissed: see SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1296. On 21 September 2005 the applicant filed in the Federal Magistrates Court an application seeking review of the decision of the delegate of the first respondent dated 21 July 1997. On 24 October 2005 the first respondent filed a notice of motion seeking orders that the proceeding be dismissed as failing to disclose a reasonable cause of action and/or as vexatious and/or as an abuse of the process of the court.

On 23 November 2005 Federal Magistrate Scarlett made orders that the application be dismissed as failing to disclose a reasonable cause of action as vexatious or as an abuse of the process of the court. He also made orders that no further application by the applicant to review the decision of the delegate or the Tribunal be accepted for filing or instituted by the applicant without the leave of the court: see SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1730.

On 12 December the applicant filed in the Federal Court an application for leave to appeal from the orders of Federal Magistrate Scarlett. On 1 March 2006 the applicant failed to appear before Justice Rares of the Federal Court. He made orders dismissing the application as lacking any substance: see SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 224. On 7 March 2006 the applicant filed a notice of motion seeking reinstatement of the application. On 15 March 2006 Justice Rares acceded to that notice of motion and set aside his orders of 1 March but nonetheless dismissed the application: see SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 378 and 594. It is against the last part of those orders that the applicant seeks special leave to appeal.

The proceedings before Federal Magistrate Scarlett related to the applicant’s attempt to seek review of the decision of the delegate of the first respondent to refuse to grant him a protection visa on 21 July 1997. As indicated above, that decision was subsequently reviewed on the merits by the Tribunal and the applicant has unsuccessfully sought judicial review of the Tribunal’s decision on a number of occasions.

There is one other relevant material event. By a letter of 11 April 2006 the Deputy Registrar of this Court advised the applicant of the effect of a number of relevant High Court Rules, including the requirement that he “file a written case (Form 18) and a draft notice of appeal (Form 24) within 28 days of filing the application, i.e. on or before 8 May 2006”, as well as drawing the applicant’s attention to “rule 41.10.4, which provides for the abandonment of an application by delay”.

Deemed Abandonment

The first question is whether the applicant’s application was indeed deemed abandoned by virtue of rule 41.10.4 or at all. This is not an issue raised by the applicant. Mr Markus, who appeared for the first respondent, with characteristic propriety raised the matter of his own motion. Subject to certain exceptions, that provision relevantly deems a special leave application to have been abandoned where “an unrepresented applicant does not file a written case within 28 days of the filing of the application”.

In the present case the applicant did file a written case together with his application for special leave on 10 April 2006. He failed to comply, however, with that part of rule 41.10.1 which required him also to file a draft notice of appeal. The question therefore is whether the reference in rule 41.10.4 to a failure to file “a written case” within the period specified is to be interpreted as limited to the written case but not the draft notice of appeal or whether the reference to “written case” in rule 41.10.4 extends both to the written case strictly so-called and to the draft notice of appeal. On the latter construction, any substantive failure to comply with the requirements imposed on an applicant under rule 41.10.1 to 41.10.3 results in the application being abandoned under rule 41.10.4.

The clear purpose of the relevant provisions of the rules is to enable the Court to deal with special leave applications brought by unrepresented persons efficiently. In aid of this purpose rule 41.10.1 requires applicants to present their argument to the Court in the form of a draft notice of appeal as well as a written case. Rule 41.10.2 requires the draft notice of appeal to be in a particular form but no specific requirement is imposed, at least by that provision, in respect of the time within which the document needs to be filed.

Pursuant to rule 41.10.3 the written case needs not only to be filed in a specified form but also within 28 days of the filing of the application. In my judgment, unless the term “written case” in rules 41.10.3(c) and 41.10.4 is interpreted as including the draft notice of appeal, the requirement of rule 41.10.1 for the filing of a draft notice of appeal would become empty in the sense that there would be no sanction for non-compliance. Rule 41.10 cannot be construed as creating a duty of merely imperfect obligation, for that would be a very unlikely outcome.

This is supported by the fact that rules 41.10.5 and 41.10.6 also make reference only to the “written case” and not separately to the draft notice of appeal. If “written case” does not include the draft notice of appeal in rule 41.10.5, the same would be true in these provisions. In that event, although rule 41.10.1 requires an applicant to file a draft notice of appeal, the Court could consider the application for the purposes of rule 41.10.5 without that document having been filed. It would also appear to follow that the power provided under rule 41.10.6 would not extend to directing that the draft notice of appeal be served even where it has been filed.

These are absurd consequences. The proposition that would lead to them – that “written case” does not include “draft notice of appeal” – must thus be rejected. The correct construction is that rule 41.10 places an onus on applicants to prepare and file their documents in a timely fashion as well as in a form that would enable the Court to consider the arguments which applicants wish to advance in the first instance with a view of deciding whether the respondent should be required to respond to the application. Hence, rule 41.10 creates a duty to file the draft notice of appeal as well as the written case within 28 days. The conclusion of the Deputy Registrar that the application was deemed to be abandoned was thus correct.

Discretion

In order to obtain the orders he seeks, the applicant needs to satisfy the Court of two matters in particular. The first is that he has offered an acceptable explanation for his failure to comply with the requirements of the rules. The second is that in all the circumstances of the case the interests of justice require the application to be reinstated.

In relation to the first of these issues, the applicant relies on a lack of familiarity with English which prevented him properly understanding the letter from the High Court which he received on 14 April dated 11 April. He also relies on his lack of money to engage a lawyer. He does, however, refer to the existence of friends who provide him with financial support. The existence of the documents which he has filed in good English indicates that whatever his own English language proficiency, he has some associate with adequate English language proficiency.

The applicant has not provided an acceptable application for his failure to file a draft notice of appeal or for allowing the application to be deemed abandoned. Putting to one side the fact that the applicant appears to have managed to lodge the appropriate documents in good time in his earlier special leave application in 2005, the Court’s letter was clear and unambiguous about what was required. It drew the applicant’s attention to the relevant High Court forms as well as to the Rules. In any event, it was the applicant’s responsibility to be aware of and ensure compliance with any relevant requirements on him in relation to his application, including those imposed under the Rules. Further, he appears to have had access to those who would fill any insufficiency in comprehension of English which he had.

However, even if the applicant had provided an acceptable explanation, this is a case where the interests of justice would clearly be best served by refusing the application to have the matter reinstated. There are two separate reasons for this. The first relates to the applicant’s litigation history. When Federal Magistrate Driver dismissed an earlier application to the Federal Magistrates Court as an abuse of process on 1 August 2005, he said in SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1071 at [10]:

The manner in which the applicant has chosen to conduct his various proceedings leads me to the view that he has embarked upon a course of conduct intended to occupy as much judicial time as possible so as to extend his presence in Australia. I have previously held that such an ulterior motive points to an abuse of process.

The proceedings which led to the present application being dismissed by Federal Magistrate Scarlett in part for being an abuse of process were proceedings in which that magistrate said:

The Applicant has admitted that he keeps coming back to court in order to re-agitate the same case. It is noteworthy that, whenever one court proceeding ceases, the Applicant commences another within 28 days. I infer from this that the Applicant is deliberately bringing actions before a court in order to extend a bridging visa. I respectfully agree with the comments of Driver FM [quoted above] that the Applicant seems to be undertaking a process of taking up as much judicial time as possible in order to extend his stay in Australia.

These opinions of the Federal Magistrates are sound.

It may be noted that the applicant still has not provided any draft notice of appeal which he would seek to file if the matter is reinstated, which is a circumstance calculated to generate further delay.

The second reason is that the application if reinstated would have no prospects of success whatsoever. Although this is not apparent from the applicant’s application for special leave to appeal or written case, the proceedings below sought to challenge the decision of the delegate of the Minister, not that of the Tribunal. It is clear that the applicant deliberately chose to follow that course, his previous attempts to have the Tribunal’s decision judicially reviewed having failed: see SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1730 at paragraphs 17-18 and 23.

As Justice Rares noted in his judgment of 15 March 2006, the delegate’s decision having been reviewed on the merits by the Tribunal, it is the Tribunal’s decision which is the operative decision and that which is relevantly determinative of the applicant’s present immigration status as a person who is not entitled to a protection visa. The decision of the Tribunal was not the subject of proceedings below.

The documents filed by the applicant on 10 April 2006 do not seek to address the judgment below in any meaningful way. They are full of references to alleged errors committed by the Tribunal, but even those allegations, irrelevant as they may be to the present proceedings, are expressed in the most general terms without any demonstration of how they might be relevant to the applicant’s case. This is not surprising, for the applicant’s written case appears to be a pro forma document with applicable dates having been inserted at various places in different typefaces.

For those reasons the summons must be dismissed with costs. I so order.

Thank you, Mr Interpreter, for your attendance. Is there anything further?

MR MARKUS: Nothing further, if the Court pleases.

HIS HONOUR: The Court will adjourn.

AT 11.33 AM THE MATTER WAS CONCLUDED