MZXBQ v Minister for Immigration and Citizenship & Anor [2009] HCATrans 117 (29 May 2009)

Last Updated: 3 June 2009

[2009] HCATrans 117

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M28 of 2008

B e t w e e n -

MZXBQ

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 29 MAY 2009, AT 12.29 AM

Copyright in the High Court of Australia

MR W.S. MOSLEY: If the Court pleases, I appear on behalf of the first respondent. (instructed by Australian Government Solicitor)

MR D. CHEUNG: If the Court pleases, I appear on behalf of the applicant. (instructed by the applicant)

GUMMOW J: Thank you. Are you appearing for the applicant?

MR CHEUNG: I am appearing for the applicant, yes.

GUMMOW J: I should say there is a submitting appearance from the Tribunal, which is the second respondent. It might be useful, Mr Cheung, if we heard first from Mr Mosley and then you can respond to him.

MR CHEUNG: But before we proceed, your Honours, may I just say something, that I am here today not as representative for the applicant for the special leave application. I am here today as a friend of the applicant to seek an adjournment so that my client can either seek legal advice further or I may myself then put myself on record to appear for him. But he only came to see me on Wednesday morning after receiving news from the Bar Council that the Bar Council would not assist in this matter for him and he has no way of acquiring any kind of legal representation until today, your Honour.

GUMMOW J: All right. Well, let me see what Mr Mosley says. Just sit down for a moment.

MR CHEUNG: Thank you, sir.

MR MOSLEY: Well, your Honour may not be aware that this is not the first time this - - -

GUMMOW J: We are aware of it.

MR MOSLEY: You are aware, yes.

GUMMOW J: We read the file.

MR MOSLEY: The last occasion was adjourned because it was said that the applicant was unable to give instructions. He has subsequently given instructions and, as we understood it, the reason, from correspondence of my instructing solicitors, that the applicant sought to further adjourn the application was to await the outcome of an application that he has made to the Administrative Appeals Tribunal. In that application the applicant has sought to review a deemed decision of the Minister not to amend personal

records held by the department to change the applicant’s name, because he now claims – and your Honour will have seen - - -

GUMMOW J: Yes, we looked at the materials. What is your response to Mr Cheung’s application?

MR MOSLEY: Your Honour, two points. We say, whether the applicant succeeds or fails in the AAT has no bearing on this special leave application and, secondly, your Honour, we would submit that there is and has been correspondence, if I can say from the Bar table, between the solicitor who is acting for the applicant in the AAT proceeding. He does have a solicitor, a registered migration agent, solicitor who is acting and who said he will not be acting for him in this proceeding. So it is not as if he has not had an opportunity - - -

GUMMOW J: You are opposing the application?

MR MOSLEY: Yes, that is the essence of it. I am sorry, I should have said that first.

GUMMOW J: It is a good idea to say it.

MR MOSLEY: Yes, I am sorry, your Honour. So we do oppose it and, more broadly, your Honour, we submit there is not any basis for the grant of special leave and the point that the applicant seeks to agitate was considered by the Court in a case last Tuesday called SZLFX, the construction of 424A - - -

GUMMOW J: We will deal with the adjournment application first.

MR MOSLEY: Yes, well, that was just one of the reasons, your Honour.

GUMMOW J: Yes, I understand that. How long an adjournment do you need, Mr Cheung?

MR CHEUNG: Well, to be reasonable, I think we might need about a month or so, sir.

GUMMOW J: Are you acting in these AAT proceedings?

MR CHEUNG: No, sir. I think the previous migration agent that my learned friend has mentioned just now is acting for him.

GUMMOW J: Now, you would need to file amended submissions, I think, in support of the leave application, would you not?

MR CHEUNG: Yes, your Honour, I am aware of that.

GUMMOW J: What we propose to do is to stand the matter out of the list today but on the following terms:

1. Any amended submissions in support of the special leave application be filed and served on or before 27 June 2009.
   
2. Any amended submissions for the Minister be filed on or before 24 July 2009.
   
3. Any reply be filed on or before 14 August 2009.
   
4. The matter will be stood into the next Melbourne special leave list with no further adjournments.
   

Do you have those dates, gentlemen – 27 June, 24 July and 14 August? You had better set about filing an appearance, Mr Cheung.

MR CHEUNG: Yes, I may not appear, your Honours, I am not sure.

GUMMOW J: If that does not happen, the matter will be in the list next time and will proceed rapidly to disposition.

MR CHEUNG: If this honourable Court pleases.

GUMMOW J: All right. Costs of today will be costs of the special leave application.

MR MOSLEY: If the Court pleases.

AT 12.38 PM THE MATTER WAS CONCLUDED