AAO15 v Minister for Immigration and Border Protection & Anor

[2016] HCATrans 76

[2016] HCATrans 076

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S245 of 2015

B e t w e e n -

AAO15

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APEALS TRIBUNAL

Second Respondent

Application for reinstatement

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 31 MARCH 2016, AT 9.39 AM

Copyright in the High Court of Australia

AAO15 appeared in person.

MR H.P.T. BEVAN:   May it please the Court, I appear for the first respondent.  (instructed by Minter Ellison)

ZOBAIDA NAHAR SHEIKH, as interpreter.

HER HONOUR:   This is an application to reinstate an application for special leave to appeal that was deemed abandoned for failure to file the written case and draft notice of appeal.

MR BEVAN:   Yes, your Honour.

HER HONOUR:   Yes.  Mr Bevan, I might take some matters up with you before I turn to the applicant.

MR BEVAN:   Of course, your Honour.

HER HONOUR:   Mr Bevan, firstly, thank you for your written submissions.  As I understand the position the Minister does not assert any prejudice were this application to be reinstated.

MR BEVAN:   That is correct, your Honour.

HER HONOUR:   It is recognised that it was deemed abandoned under the Rules on Christmas Eve.  Taking into account the Christmas break, the fact that the applicant is unrepresented and that English is not his first language, the Minister accepts that he has moved, as it were, with reasonable expedition to have his application reinstated.

MR BEVAN:   Yes, your Honour.

HER HONOUR:   And I think the Minister accepts that the applicant has taken the steps necessary to remedy his failure in that he has now filed his written case and his draft notice of appeal.  

MR BEVAN:   Yes, your Honour.

HER HONOUR:   Now, I appreciate the basis of opposition to reinstatement is the suggested futility since the Minister contends that the grounds do not identify an arguable basis of successful challenge.

MR BEVAN:   Yes, your Honour.

HER HONOUR:   Mr Bevan, I am conscious of the competing considerations and of the circumstance that a matter bearing on the discretion undoubtedly includes the prospects of success but, I must raise with you, in a case where the delay in seeking to remedy a failure that the Minister accepts is an understandable failure is not great.

MR BEVAN:   Yes, your Honour.  While, as your Honour has identified, the first respondent’s position is that the proposed application for special leave has no prospects of success, the first respondent does also accept that, in the exercise of your Honour’s discretion, your Honour might well consider that the better approach is to reinstate the matter and have it dealt with in accordance with the Rules for the disposition of applications for special leave by unrepresented litigants.  There is not anything I can say or want to say against that course if your Honour is of that view. 

My only thing would be that if your Honour were to take that course, if your Honour would make the costs of the application for reinstatement the costs of the application for special leave.  That has been done in at least five other cases.  I can give your Honour the references and hand up the order ultimately disposing of special leave.  What I cannot tell your Honour is whether or not there was a contested application for reinstatement in those cases.

HER HONOUR:   What I was proposing, since what is sought is an indulgence, is, subject to anything that the applicant puts to me, to make an order that the applicant pay the Minister’s costs of his summons.

MR BEVAN:   Then I would embrace that, your Honour.

HER HONOUR:   Yes.  I will take that matter up with the applicant.

MR BEVAN:   Thank you, your Honour.

HER HONOUR:   Sir, you are asking the Court to reinstate an application that lapsed because you failed to comply with the Court’s Rules.  You have provided an explanation for your failure and I am inclined to make the order that you seek to reinstate your application for special leave to appeal.  Because you have come to the Court seeking that indulgence the Minister has asked – one moment, I am sorry, sir, I need to take something up.  I see in fact I now – I may have misread your submission.  I see that the submission is that the costs of the reinstatement be costs in the application.

MR BEVAN:   It might on that – ultimately it may, your Honour, in the result.

HER HONOUR:   I am inclined to make the order then in the terms that it is sought.  Yes, thank you, Mr Bevan.

MR BEVAN:   Thank you, your Honour.

HER HONOUR:   I am sorry for that interruption.  I just needed to clarify something with the Minister’s counsel.  The Minister is asking for an order that the costs of your summons today, the costs associated with Mr Bevan appearing in Court today, should be the costs in the application for special leave.  A consequence of that would be if you are unsuccessful in your application that you would be required to pay the Minister’s costs.  Do you understand that?

AAO15 (through interpreter):   Yes.

HER HONOUR:   Very well.  Mr Bevan, I rather suspect my reasons for the order that I have foreshadowed making are clear from our exchange.  Do you require me to ‑ ‑ ‑

MR BEVAN:   I do not require reasons, your Honour.

HER HONOUR:   Yes, very well.  I make the following orders:

1.The application for special leave to appeal filed on 26 November 2015 is reinstated.

2.The costs of the summons for reinstatement are costs in the application for special leave.

Adjourn the Court.

AT 9.49 AM THE MATTER WAS CONCLUDED