Plaintiff M89/2013 v Minister for Immigration and Citizenship and Anor [2013] HCATrans 230 (26 September 2013)

Last Updated: 26 September 2013

[2013] HCATrans 230

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M89 of 2013

B e t w e e n -

PLAINTIFF M89/2013

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for an order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 26 SEPTEMBER 2013, AT 9.32 AM

Copyright in the High Court of Australia

PLAINTIFF M89/2013 appeared in person.

MR J.D. BROWN: Good morning, your Honour, I appear for the first defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, there is a submitting appearance for the second defendant. Now, you are the plaintiff, is that right, sir? Perhaps if you could just stand up and stand there, that would help. Are you appearing on your own behalf?

PLAINTIFF M89/2013: Yes.

HIS HONOUR: This morning, the Minister is asking me to stop your action and to dismiss it. Do you understand that?

PLAINTIFF M89/2013: Yes.

HIS HONOUR: What will happen today is that I will hear argument from the Minister’s representative and then, after I have heard from him, you will have a chance to tell me what you want to say about the case. Do you understand that?

PLAINTIFF M89/2013: Yes, I understand.

HIS HONOUR: Do you understand then the way in which the case will go ahead today?

PLAINTIFF M89/2013: Yes.

HIS HONOUR: You are, as I say, representing yourself today. Is that right?

PLAINTIFF M89/2013: Yes.

HIS HONOUR: Yes, very well. Perhaps if you would sit down and I will hear then from the representative of the Minister. Yes, Mr Brown.

MR BROWN: Thank you, your Honour.

HIS HONOUR: This is your summons of 20 September, is it?

MR BROWN: That is right, your Honour, thank you.

HIS HONOUR: You move on that and there is an affidavit of Edward Lysander Rogers sworn on 20 September. Is that right?

MR BROWN: There is, your Honour, thank you.

HIS HONOUR: You rely on that. Now, again, I am afraid, Mr Brown, we may have to do this in rather abbreviated instalments but I am going to have to explain as we go along what is happening.

MR BROWN: Of course, your Honour. I apologise, but just before we start, perhaps we could deal with the preliminary question of whether the plaintiff feels that he can actually understand what we are saying.

HIS HONOUR: Right. What do you think the position is?

MR BROWN: Well, your Honour, I have never met the plaintiff before. All I do know is that in his protection visa application he did indicate an ability to speak, read and write Tamil, Malay and English.

HIS HONOUR: Yes.

MR BROWN: To what standard, your Honour, I do not know. I do know that at the Tribunal hearing back in 2008 there was an interpreter. Both the plaintiff and his wife appeared at that Tribunal hearing and gave evidence.

HIS HONOUR: They gave evidence in which language? Do we know?

MR BROWN: We understand, your Honour, that it was interpreted.

HIS HONOUR: So gave evidence in Tamil - - -

MR BROWN: In Tamil.

HIS HONOUR: It was then interpreted.

MR BROWN: Yes. Now, I am aware that we have had some difficulty this morning in securing an interpreter but clearly it would be inappropriate to proceed unless we are confident that the plaintiff can understand what we are saying.

HIS HONOUR: Yes. How do you suggest we sort this out, Mr Brown? That is the difficulty.

MR BROWN: Indeed, your Honour, I accept that, but clearly we want to ensure that the plaintiff has the appropriate opportunity to put his case. Now, I think the only thing we can do is ask the plaintiff as to what he feels he is able to understand.

HIS HONOUR: Yes.

MR BROWN: Thank you, your Honour.

HIS HONOUR: Now, perhaps can I again have a word with you. Do you mind again standing at the lectern? It just means that it is easier then for us to record what is happening. Proceedings today will, of course, happen using English as the language of the Court. Do you think that you need the help of an interpreter to understand what is happening in the Court?

PLAINTIFF M89/2013: Yes, I understand.

HIS HONOUR: Do you think you need the help of an interpreter?

PLAINTIFF M89/2013: Yes, we do.

HIS HONOUR: I know that attempts were made – we tried yesterday to get hold of an interpreter and did not. We can perhaps make some further inquiries immediately to see whether we could get an interpreter for say 2.15 today. If we cannot we will have, perhaps, I think, Mr Brown, to adjourn it over which is awkward, but I think you are right. We have to be sure that the plaintiff understands what is happening.

MR BROWN: Your Honour, that would be a very sensible way to proceed in my view.

HIS HONOUR: Now, is it worth my while, Mr Brown, adjourning for 20 minutes, half an hour, to let you and your instructor make some inquiries to see whether you can get an interpreter for 2.15 or am I better simply to put it over until next week. What do you think would be the best thing? Can I say this? I am very conscious of the fact the plaintiff – and I see his wife and child sitting in the back of the Court – have come from Mooroopna and Mooroopna to come to Melbourne costs money.

MR BROWN: Absolutely.

HIS HONOUR: Therefore, to make them come again costs them more money so I am anxious that if we can deal with this today, we deal with it. If we cannot, we cannot.

MR BROWN: Your Honour, if we could prevail on the Court for perhaps an hour this morning, during which time we will make our best endeavours to secure an interpreter. Perhaps it would be advantageous if we established with the plaintiff how fluent he is in Malay as well as in Tamil because then we would double our chances.

HIS HONOUR: Yes. You have two things, very well. Now, Mr Plaintiff, what I am going to do is to stop for an hour - - -

PLAINTIFF M89/2013: Okay.

HIS HONOUR: - - - see if we can get an interpreter. If we can get an interpreter who can help you, we will then go ahead.

PLAINTIFF M89/2013: Okay.

HIS HONOUR: If we cannot get an interpreter today who can help you, we will then probably have to put the case off until next week.

PLAINTIFF M89/2013: Okay.

HIS HONOUR: Probably Thursday or Friday next week, but if I stop now and start again at a quarter to 11, can you be sure to be back here by about 20 to 11.

PLAINTIFF M89/2013: Okay.

HIS HONOUR: Do you understand?

PLAINTIFF M89/2013: Yes, I understand.

HIS HONOUR: In the meantime, if you could talk to Mr Brown, we can see what interpreter we need and whether we can get one to help us today.

PLAINTIFF M89/2013: Okay.

HIS HONOUR: Do you understand all that?

PLAINTIFF M89/2013: Yes, I do, yes.

HIS HONOUR: Very well. Well, if I adjourn until a quarter to 11.

PLAINTIFF M89/2013: Thank you.

AT 9.41 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 10.45 AM:

HIS HONOUR: Now, Mr Brown, what is the position?

MR BROWN: Your Honour, thank you for the opportunity to try and secure an interpreter resource. We tried three agencies other than the one that the Court normally uses and, unfortunately, two of them said that they were not able to help and the other one did not respond. So I am afraid we are no further forward, but we have tried.

HIS HONOUR: Thank you for your efforts. Mr Plaintiff, do you mind coming to the lectern. It is very important that you understand what arguments are going to be made and what happens in this proceeding. As I said to you, the Minister wants to stop your proceeding, dismiss it and I suspect the Minister then wants to say you must leave Australia. It is therefore very important that you have the opportunity, you have the chance to tell me anything that you want to say against what the Minister is asking. Now, I think that it will be better if we have an interpreter who can help you. We have now tried yesterday and today to get an interpreter and we have not succeeded.

PLAINTIFF M89/2013: Okay.

HIS HONOUR: I know that you and your family have had to come down from Mooroopna to Melbourne. I know that that costs money. I know that putting the case off will mean that you will have to come back again, but I think it is better for you, and for the Court, that we put the case off until Friday next week. We will have an interpreter then and you will need to be here then to tell me anything you need to tell me against what the Minister wants to say. Do you understand that?

PLAINTIFF M89/2013: Yes, your Honour. I understand that.

HIS HONOUR: Well, then, what I will do is I will adjourn the further hearing of this matter until Friday, 4 October at 9.30. Can you be down here from Mooroopna at 9.30

PLAINTIFF M89/2013: Yes, I can.

HIS HONOUR: It will be 9.30 in the morning on Friday, 4 October. Do you understand?

PLAINTIFF M89/2013: Yes.

HIS HONOUR: Very well. Mr Brown, thank you for your assistance today in attempting to solve the problem. I am sorry we could not, but if you cannot, you cannot. If I simply reserve the costs.

MR BROWN: Thank you, your Honour.

HIS HONOUR: Yes. The matter is adjourned to 4 October at 9.30 in Melbourne. The Court will adjourn.

AT 10.49 AM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 4 OCTOBER 2013