Applicant NACS of 2001 v MIMIA

[2003] HCATrans 510

[2003] HCATrans 510

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S512 of 2002

B e t w e e n -

APPLICANT NACS OF 2001

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 2 DECEMBER 2003, AT 2.34 PM

Copyright in the High Court of Australia

APPLICANT NACS OF 2001 appeared in person.

MR J.D. SMITH:   May it please the Court, I appear for the Minister.  (instructed by Blake Dawson Waldron)

IQBAL HYE CHOWDHURY, affirmed as interpreter: 

APPLICANT NACS OF 2001 (through interpreter):   I am requesting to grant my appeal.  There could be some mistake…..but because of my financial condition I could not engage a barrister.  If you grant me this appeal, then my friend from overseas is going to remit me some money and then I will be able to engage a barrister.  I am not satisfied with the decision of the RRT.  That is why I would like to engage a barrister.

GUMMOW J:   The real question is:  what is the error of the Full Court of the Federal Court of Australia?

APPLICANT NACS OF 2001 (through interpreter):   I am not aware of the proceedings, so I really do not know.

GUMMOW J:   Is there anything else the applicant wishes to add to his written submissions?

APPLICANT NACS OF 2001 (through interpreter):   Yes, I would like.

GUMMOW J:   Go ahead.

APPLICANT NACS OF 2001 (through interpreter):   I came to Australia in 1997.  It is not possible for me to return to my country because of security reasons.  My case is in my country still pending.  For the security of my life I do not want to return to my country.  The documents which I have submitted at RRT and at Federal Court, those documents need to be investigated, so I want security of my life.  I have nothing to say.

GUMMOW J:   Thank you.  Sit down, if you would, please.

APPLICANT NACS OF 2001 (through interpreter):   Your Honour, he would like to…..this document.

KIRBY J:   There is a further written document, is there?

APPLICANT NACS OF 2001 (through interpreter):   Yes.

KIRBY J:   This is something which we have not seen before?

APPLICANT NACS OF 2001 (through interpreter):   No.

KIRBY J:   Show it to Mr Smith.  Do you have any objection to the Court receiving this document?

MR SMITH:   No, your Honour.  I have a copy.

KIRBY J:   Yes, very well.  Hand it up then.  Do you have two copies?  We will take a moment to read the document.  Is it true that the BNP later became the government of Bangladesh?

APPLICANT NACS OF 2001 (through interpreter):   Yes, it is true.

KIRBY J:   Is it the government of Bangladesh at the moment?

APPLICANT NACS OF 2001 (through interpreter):   Yes, it is.

KIRBY J:   Thank you.

GUMMOW J:   Yes, we do not need to hear from you, Mr Smith.

The applicant, who is a citizen of Bangladesh and who appeared today with an interpreter, claimed a protection visa as a refugee.  His application was rejected.  Before the Refugee Review Tribunal the issue that attracted most attention was whether a photograph that the applicant tendered showing him with a political leader was a composite forgery.  The applicant was given notice of the evidence raising this contention.  The applicant sought extensions of time to reply to the letter.  He was granted an extension but sought more time.  Eventually this was rejected.  The Tribunal decision was given and the decision was adverse to his claim.

The applicant contends that he was denied procedural fairness.  If that contention be made out, it could establish jurisdictional error.  Before the Full Court of the Federal Court of Australia the applicant also raised a contention for the first time that the delegate had not read material placed before him.  In that regard he relied on Muin v The Minister (2002) 76 ALJR 766.

We have had regard to the written submissions in the application book and the further written submissions handed up today, together with what has been said orally.  We are not convinced that error has been shown in the reasons of the Full Court of the Federal Court for concluding that the applicant had received a fair opportunity to deal with the report on the photograph or that the new point raised should be sustained.  The case involves contested factual questions only and no basis has been shown for the grant of special leave.  Accordingly, special leave is refused and refused with costs.

We should thank you for your assistance, Mr Interpreter.

KIRBY J:   And a copy of the transcript will be sent to the applicant which will set out the reasons of the Court refusing his application.

APPLICANT NACS OF 2001 (through interpreter):   To my residential address?

KIRBY J:   You give your residential address to the officers of the Court and they will take it from you and it will be sent to you when it is typed up.

GUMMOW J:   We will adjourn until 10.15 am tomorrow in Canberra.

AT 2.46 PM THE MATTER WAS CONCLUDED