Applicant NABC of 2002 v MIMIA

[2004] HCATrans 279

[2004] HCATrans 279

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S426 of 2003

B e t w e e n -

APPLICANT NABC OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 AUGUST 2004, AT 11.43 AM

Copyright in the High Court of Australia

MR J.D. SMITH:   May it please the Court, I appear for the respondent.  (instructed by Sparke Helmore) 

KIRBY J:   Now, Mr Smith, I understand that this is a case where the applicant may have sent a certificate claiming illness, is that correct?  Do you know of that?  It is a little confusing because there are two NABCs in the list today.  Is this the certificate that says, “In my opinion, he is suffering from back pains and will be unfit for work from 5 August 2004 to 6 August 2004”?

MR SMITH:   Yes, your Honour.

KIRBY J:   We had better have the applicant called by his proper name outside the Court just in case he has attended.  Officer, would you go outside the Court and call the applicant whose name I will now give you?

COURT OFFICER:   I have it, your Honour.

KIRBY J:   You have it, very well.  Call him outside the Court to see if he is present.

COURT OFFICER:   No appearance, your Honour.

KIRBY J:   Thank you.  Do you have anything to say in the matter, Mr Smith?  I would infer from the certificate that he is asking for an adjournment of the case.  Now, earlier today, in a somewhat analogous matter, Justice Gummow and I examined a certificate of this kind.  Although it was not exactly the same, we were invited to and did take the course of considering the matter on the basis that the application was futile and therefore to grant the application for an adjournment would be a waste of everyone’s time.  Do you make a similar submission in this case?

MR SMITH:   I do, your Honour, in addition to the fact that the evidence is not sufficient to establish any cause for the failure to attend today.

KIRBY J:   I am sorry, I did not hear your submission.

MR SMITH:   The evidence, such as it is, is insufficient to establish as reasonable cause for failure to attend today.

KIRBY J:   Yes, it addresses the applicant’s fitness for work, and does not address the applicant’s fitness to come to Court.

MR SMITH:   Yes, your Honour.

KIRBY J:   In this matter, the applicant, a national of Bangladesh, applies to this Court for special leave to appeal against a decision of the Federal Court of Australia constituted by Justice Gyles.  That decision refused judicial review of an order made by the Refugee Review Tribunal.  The Refugee Review Tribunal, in turn, had confirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs refusing the applicant a protection visa under the Migration Act 1958 (Cth).

When this matter was called this morning, the applicant did not appear.  In advance of the listing, a certificate was sent to the Registrar of the Court, which has been placed before us.  That certificate, which is signed by a medical practitioner, states that the applicant is suffering from back pains and is unfit for work up to and including 5 August 2004/ 6 August 2004.  The certificate does not speak to the fitness of the applicant to attend Court and present his application of which he was on notice and which is before the Court for decision today. 

If there were any prospects of success in the application, the Court would interpret the medical certificate as one addressed to the applicant’s incapacity to attend the Court.  However, in our view, there are no prospects of success in the application.  Adjournment of the hearing today would be futile. 

The substantive application before this Court is, in effect, an endeavour to re‑agitate in this Court the merits of the applicant’s application for a protection visa.  The written submissions of the applicant, which the Court has studied, do not disclose any jurisdictional or other legal error which would authorise judicial review.  They do not reveal any error on the part of the Federal Court that would warrant the intervention of this Court. 

Insofar as, in the common form that has become familiar to the Court in the case of Bangladeshi applicants, the application relies on the decision of the Court in Muin and Lie v Refugee Review Tribunal (2002) 76 ALJR 966, the evidentiary foundation that would be necessary to engage the principle in those decisions was not laid. It is not available to the applicant. Therefore, the case lends no strength to the applicant’s application.

Accordingly, the Court dismisses the inferred application for an adjournment.  It dismisses the application for special leave.  The applicant must pay the Minister’s costs. 

The Court will now adjourn in order to be reconstituted for the remaining applications. 

AT 11.50 AM THE MATTER WAS CONCLUDED