Antonio & Anor v MIMA

[2000] HCATrans 321

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D13 of 1999

B e t w e e n -

DENRY ANTONIO & LETICIA ANTONIO

Applicants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

JANET WOOD

Second Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 AUGUST 2000, AT  4.02 PM

Copyright in the High Court of Australia

GUMMOW J:   Does anybody seek to appear for the applicants?

MR A.H. SILVESTER:   May it please your Honours, I appear for the respondents.  (instructed by the Australian Government Solicitor)

The applicants are here.  I have been asked to say that they no longer seek leave for Dr Roman to appear, but there is a Mr Buckland in the Court who, I understand, may have an application for you.

GUMMOW J:   Yes.

KIRBY J:   We have a rather strange image of the courtroom.  We can see only a little corner of it.  I wonder if there is someone there who can focus it a bit more clearly on the Bar table.

GUMMOW J:   We cannot really see the lectern at the moment.

KIRBY J:   Mr Silvester, could you move the lectern to the end of the Bar table to your left, right to the end if you would not mind, because that is all that we can see.

GUMMOW J:   That is better.  Now, you mentioned there was someone in Court who wished to appear for the Antonios or to seek leave to do so.

MR SILVESTER:   If your Honours please, Mr and Mrs Antonio are here.  I have been asked to say to your Honours that the applicants respectfully ask the Court to make a decision on the written argument and the evidence.  I have pointed out to Mr Buckland, who is here, I think, as a friend of the Antonios ‑ ‑ ‑

KIRBY J:   Is Mr Buckland asking to be heard – or rather, do the Antonios ask that Mr Buckland be heard on their behalf.

GUMMOW J:   Or do they simply wish us to act by reading the papers, which we have done?

MR SILVESTER:   If your Honours please, there is someone else talking over us due to what looks like a technical problem.  But the answer to your question is, yes, that is what the applicants ask you to do.

GUMMOW J:   To deal with the matter on the papers?

MR SILVESTER:   That is correct.

GUMMOW J:   Very well.  Are the applicants in court?

MR SILVESTER:   Yes, they are, your Honour.

GUMMOW J:   Are they at the Bar table?  It might be useful if they came forward to the Bar table, I think.

MR SILVESTER:   They are at the Bar table.  I will ask Mr Antonio to come down to where I am standing so that you may see him.

GUMMOW J:   Yes, that would be helpful.  Yes, Mr Antonio.

KIRBY J:   We can see you now.  We could not see you before.  You were at the end of the table which is outside the video link. 

GUMMOW J:   That is better.

KIRBY J:   That is much better.  Now we can see everybody. 

GUMMOW J:   Mr Silvester has kindly told us, after communicating with you, that you would wish us to deal with these applications from our consideration of the detailed material and the papers, is that right?

MR ANTONIO:   Yes, your Honour.

GUMMOW J:   Very well.  That is your position and the position of Mrs Antonio as well?  You are speaking for Mrs Antonio as well?

MR ANTONIO:   Yes, your Honour.

KIRBY J:   Can you speak for Mrs Antonio, or has she asked you to speak for her, or would she rather speak for herself?  We live in an age when sometimes wives want to speak for themselves.

Mrs Antonio, are you asking that your husband speak for you or do you want to speak to the Court yourself, because that is your right?

MRS ANTONIO:   My husband, your Honour.

KIRBY J:   Very well.

GUMMOW J:   Thank you.  If you both take a seat, Mr and Mrs Antonio, thank you.

We will take a short adjournment.

AT 4.07 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.12 PM:

GUMMOW J:   The Court has studied the papers and submissions filed in this application.  Both applicants requested the Court to deal with the matter on the papers and no additional oral submissions were put.  The Court does not consider that any error has been shown in the conclusions and order of the Full Court of the Federal Court.  In particular, the Court does not believe that this application presents a suitable vehicle for a re‑examination of the suggested test sometimes described as the “what if I am wrong” test.  See, for example, the English decision Karam Arakaran v Secretary of State for the Home Department (2000) 3 All ER 447. Accordingly, special leave is refused.

Do you ask for costs, Mr Silvester?

MR SILVESTER:   I am instructed to seek costs, your Honour.

KIRBY J:   The applicants have said that no costs should be ordered because that would deter people in their position from making applications of this kind.  What do you say in answer to that?

MR SILVESTER:   If your Honour pleases, that is a consideration which should be had regard to.

KIRBY J:   What is the practicality of making an order for costs?  Would you be able to recover the costs?

MR SILVESTER:   I have no specific knowledge, your Honour, but I suspect not.

KIRBY J:   I suppose you say that the Court should make the ordinary order, but whether it can be enforced is a matter for the future.

MR SILVESTER:   Indeed, your Honour.

GUMMOW J:   Very well.  Mr and Mrs Antonio, do you want to say anything on costs?  Mr Antonio?

MR ANTONIO:   Your Honour, we need to know whether your Honours have used the argument and evidence we sent under practice direction 3 of 1996?

GUMMOW J:   Yes, we have seen all the materials.  The question is why should the Court not make the order for costs which ordinarily would be made against an unsuccessful party?  We have read your submissions as to why.  Now, do you wish to supplement them by any oral statement?

MR ANTONIO:   Your Honour, we are in serious financial, you know, difficulties.  Your Honour  ‑ ‑ ‑

GUMMOW J:   Have you got anyone there to assist you, Mr Antonio?

MR ANTONIO:   Yes, your Honour.

GUMMOW J:   Perhaps that gentleman could come forward to the microphone.

MR BUCKLAND:   Your Honours, my name is Anthony Buckland.  I am a friend of the applicants.  They are in serious financial hardship and awarding costs against them would exacerbate that situation.

GUMMOW J:   Thank you.

KIRBY J:   We understand that.  But the ordinary rule in Australia is if you bring an application and you lose it, you will ordinarily have to pay the costs and it requires a good reason why that should not be done.  Many people in this situation are in a situation of hardship and whether or not the order can be enforced is a practical matter that perhaps is taken into account in whether attempts are made to enforce it, but from the point of view of the Court, there does not seem to be any reason of principle why the ordinary order should not be made on the record of the Court.  It is then over to the Minister to decide whether or not he will try to enforce it.

MR BUCKLAND:   Your Honours, situations such as an application for refugee status and the decisions around that are of international and national significance.  If all applicants who were the applicants were deterred by the risk of further financial hardship or difficulty, then it would not be in the interests of the individuals to pursue it, even though they might be entitled to some protection.  It certainly would not be in the interests of Australia’s reputation or public policy for that to be followed through.

KIRBY J:   I understand that, but if that were to be the matter of relief, it would, I think, have to be enacted by the Parliament, not simply dealt with by the Court in the exercise of its general jurisdiction and discretion.

MR BUCKLAND:   Your Honours, I have not brought with me material, but my understanding of cases of public interest which your Honours on the High Court have heard have considered the issue of public organisation or the public service and access to the public purse vis‑a‑vis the small applicant and considered that it is not in the interests of justice to allow the public purse to be used to deter the hearing of just cases.

GUMMOW J:   This is an application that did not succeed, Mr Buckland.

KIRBY J:   It is not made by a public body or representative body.  It is made by two individuals.

MR BUCKLAND:    That is true.

KIRBY J:   So I do not really see how this Court can fashion the matter.  It may be that one day you will turn up with better argumentation and be able to refer to some principles and authorities that might persuade the Court then constituted to take a different view, but so far as it appears on the record, this is just an application by two applicants who have failed and the normal order is that they have to pay the costs.

MR BUCKLAND:   If it please your Honours.

GUMMOW J:   Thank you.  The application is refused with costs.

The Court will now adjourn until Monday, 7 August, at 2.15 pm at Adelaide.

AT 4.20 PM THE MATTER WAS CONCLUDED