Applicant A408 of 2002 v MIMIA

[2005] HCATrans 112

[2005] HCATrans 112

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A37 of 2004

B e t w e e n -

APPLICANT A408/2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 MARCH 2005, AT 11.48 AM

Copyright in the High Court of Australia

__________________

APPLICANT A408/2002 appeared in person.

MR M.J. RODER:   If the Court pleases, I appear for the respondent Minister.  (instructed by Sparke Helmore)

KIRBY J:   We have the applicant present in Court in Canberra and she is appearing on her own behalf.  You will have to speak up loud so that we can hear you.  You are known in this Court as A408/2002.  We do not mean any disrespect to you by using those expressions.  That is used so that in the reports of the matter in the Internet you will not be identified and that will not therefore cause you any possible embarrassment later.  Do you understand?

APPLICANT A408/2002:   Yes.

KIRBY J:   Yes, very well.  What do you have to say?

APPLICANT A408/2002:   First of all, I want to apologise if my English speaking is anything wrong.

KIRBY J:   I am sorry, I cannot hear you.  Can you hear over there in Adelaide, Mr Roder?

MR RODER:   No, your Honour.

KIRBY J:   You will have to speak up or we will not be able to hear you.

APPLICANT A408/2002:   I would like to appeal with the High Court that my case which I already return and give to them.

KIRBY J:   We have the written submissions and we have read those.

APPLICANT A408/2002:   Yes.

KIRBY J:   Is there anything that you want to add to what is in the written submissions?

APPLICANT A408/2002:   Yes.  This, the Selway J decision was wrong because he said it was unnecessary delay and which is not true because I have appeal and book all my paper and whatever in 28 days all the time legally.  I never been illegal in Australia and so he made the wrong decision that was I was unnecessary delay which is not true and I would like to request your Honour that I want the special leave for to talk about my problem.

KIRBY J:   The problem is that the Tribunal rejected your claims believing that you were not telling it the truth and on that basis it is very difficult for you to expect an appeal court which is not rehearing the entire facts and merits of the case to reach a different conclusion because we do not see you give evidence or give your statement, whereas the Tribunal did and they did not believe you.

APPLICANT A408/2002:   Yes, that is the problem, your Honour.  I – what – I showed them all my papers and documents and then they did not believe my…..whatever I said they did not believe that.  I would like to read this paper that I wrote myself.

There are sufficient reasons to doubt the RRT and Selway J decision.  No delay was made on appeal.  All the appeal were done with 28 days of the decision.  No 3 – page 29, I had lodged an application in Sydney within 28 days of the decision.  Page 29, 5 is wrong.  I lodged an appeal in Sydney.  The page – at No 8, page 30, No 2 in my submission to RRT, I sought that protection for various reasons.  I did mention the situation of Nepalese woman and women being a particular special group.  No 12, page 31, wrong.  Respondent’s summary of arguments also provided that I had an appeal in the Sydney court – that is the reason of delay.

KIRBY J:   Is that all you wish to say?

APPLICANT A408/2002:   Yes.  If the High Court give me the chance and opportunity, I will provide the documents that is all the truth.

KIRBY J:   The problem is that this matter was heard by Justice Lander and he dismissed the application on the basis that you had not complied with earlier orders.  You then filed an application for an extension of time.  That came before Justice Selway and you sought leave to appeal but Justice Selway did not think that you had demonstrated a basis for extending the time because you had not shown that there had been any jurisdictional error that would give you any prospect of success.  So you have a number of problems in bringing the matter to this Court.  You got out of time.  The decision is made by a single judge and you cannot normally appeal from a single judge to this Court, and the single judge exercised a judgment on the basis of material that was available to him and, anyway, when we look at the material it does not appear to indicate any such error on the part of the Tribunal that would warrant bringing the matter into this Court.

APPLICANT A408/2002:   I – actually, I was never late putting my case.  I was always on the…..before I had a lawyer to introduce my case and then he did from Adelaide, or somewhere, and then they never told me they want me to come in the court.  The lawyer never let me know and then after a few weeks my agent told me that I – he received a letter that they dismiss, which I never know and I never get a chance to sit in the court and talk about my problem that RRT make a wrong decision.

This - in South Australia, that I never went there and he never call me to attend the court.  That is why the judge dismiss himself and I found very late after 26 days.  As soon as I found I went to Sydney court and I appeal again.  So I am – I never did anything late after 28 days.  I am legally doing everything in 28 days.

KIRBY J:   Justice Lander considered that you had not complied with his orders and so you then sought the extension of time and Justice Selway considered, when he looked at all of the material, that there was no warrant to extend it, so it is – is there anything else that you want to say?

APPLICANT A408/2002:   Yes, please, because at this time in my country it is really bad.  There is no democracy, there is no human rights, and I really would like to request with the – on that…..me and then let me put ‑ ‑ ‑

KIRBY J:   You are referring now to some recent developments that have happened in Nepal that have been in the public media but we are dealing with the case on the basis of the material that was before the Refugee Review Tribunal at the time of its hearing.  It may be – I am not sure – that you have some opportunity to make a fresh application to the Minister on the basis of a deterioration in the conditions in Nepal but that is not a matter that this Court can deal with.  We can only deal with it on the basis of the material that was before the Tribunal.

APPLICANT A408/2002:   The Tribunal is making everything wrong that I told that…..persecution in there and police harass me.  Everything I told her.  Even she…..little bit things she said, she just said she give me this wrong decision, that she did not look quite carefully.

KIRBY J:   Yes.  Is there anything else?

APPLICANT A408/2002:   That is all.

KIRBY J:   Thank you.  Mr Roder, there is public knowledge of the deterioration of the conditions in Nepal.  Does the applicant have an entitlement under the Act to make a fresh application in view of supervening events?

MR RODER:   No, your Honour.  The circumstances are that there is a discretion under the Act for the Minister to allow a fresh application but there is no entitlement as of right.

KIRBY J:   But the applicant has the entitlement to write to the Minister asking for a fresh consideration of the matter in light of recent developments in Nepal.

MR RODER:   Yes, your Honour.

KIRBY J:   Yes, very well.  The Court does not need any further assistance from you Mr Roder, thank you.

MR RODER:   Thank you, your Honour.

KIRBY J:   What is the section of the Act that gives the discretion to the Minister for the consideration of the matter in the lighter of supervening events?

MR RODER:   Your Honour, there is a general discretion under section 417 for the Minister to substitute a more favourable decision.

KIRBY J:   What section is it?

MR RODER:   And that is the Minister’s own decision.  It would not need to go before a further Tribunal.  There is also a separate power under the Act.  It is section 48 which is a different discretion the Minister has to allow the making of a subsequent application to the Tribunal, so there are the two discretions that the Minister has.

KIRBY J:   Could you arrange for a member of your department to send a letter to the applicant setting out those entitlements.  Everyone knows that there has been a deterioration in the conditions in Nepal and, in particular, as it affects anybody having connection with the Maoist revolution there.

MR RODER:   Your Honour, I am instructed there would be no difficulty in doing that.

CALLINAN J:   And do it as soon as you can because she will be at a risk of deportation if you do not.

MR RODER:   Yes, your Honour, it will be attended to.

KIRBY J:   Yes, thank you very much for your assistance, Mr Roder.

MR RODER:   Thank you, your Honour.

KIRBY J:   Did you understand that exchange that we had with the barrister for the Minister?  You do not have a right to ask for a fresh consideration of the matter in view of the recent events in Nepal but you have an entitlement to write to the Minister asking for reconsideration by the Minister of your case in view of those developments, and the Minister decides whether or not she will give that reconsideration.  Mr Roder, the barrister for the Minister, is going to speak to his solicitor to get a letter sent to you which sets out your entitlements in this respect so that even though it is not a right, you can exercise whatever entitlements exist for you under the Act, to ask the Minister in the light of new events to reconsider the case.  But the Minister is not bound to reconsider the case.  She may decide not to do so, but she is entitled to, and you will be told of how you would go about seeking that reconsideration.  You had better do that immediately and not get into problems of time and delay such as have occurred in the past.  Do you understand what I have just said to you?

APPLICANT A408/2002:   Yes.

CALLINAN J:   And if you can, try to get some legal advice to help you assemble the various items and material and matters that you want to rely upon when you approach the Minister.  See if you can get somebody to help you, a lawyer to help you.

APPLICANT A408/2002:   Yes.  The problem is I have no rights to work and then everybody wants money.

KIRBY J:   Yes, well, we cannot get involved in that.  We are dealing with the previous hearing of the Tribunal.  That is the matter that is before us. 

APPLICANT A408/2002:   Okay. 

KIRBY J:   In respect of this application for special leave to appeal, the applicant relies on a number of questions of law said to warrant the grant of special leave.  However, none of those questions of law has been made good.  Justice Selway, who gave the decision below, did not think that sufficient reason had been demonstrated to warrant an extension of time.  Nor did he consider that jurisdictional errors had been shown.  There is no reason to doubt the correctness of those conclusions.  Having regard to that opinion, which the Court holds, there is no reason for the Court to consider whether or not an appeal to this Court would be incompetent, as the Minister states. 

The application for special leave is dismissed.  The applicant must pay the Minister’s costs.  However, the applicant has been informed of the steps that she might take to ask that the Minister reconsider the matter, in the light of recent widely‑reported developments in Nepal. 

The Court will now adjourn. 

AT 12.03 PM THE MATTER WAS CONCLUDED