Applicant NAJR of 2002 v MIMIA

[2004] HCATrans 72

[2004] HCATrans 072

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S139 of 2003

B e t w e e n -

APPLICANT NAJR OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MARCH 2004, AT 2.12 PM

Copyright in the High Court of Australia

MR T. REILLY:   If the Court pleases, I appear for the respondent.  (instructed by Sparke Helmore)

GUMMOW J:   Officer, will you call matter No 11 outside the Court, please. 

COURT OFFICER:   No appearance, your Honour. 

GUMMOW J:   Mr Reilly, the Registrar received a communication from what appears to be the applicant at 11.30 this morning, saying that he was ill and unable to be here and requesting an adjournment.  What attitude does the Minister have to that?

MR REILLY:   We would oppose that, your Honour.  We have not been favoured with any details of why the applicant – or with what the applicant is said to be ill or any doctor’s certificate.  Your Honours are familiar with this case.  It is a case where the applicant was found, as Justice Madgwick said, to be “a liar” by the Tribunal and in light of the nature of his case and the fact that the illness has not been properly evidenced in any way, we would oppose any adjournment. 

GUMMOW J:   Would you just take us through the matter?  Justice Madgwick was sitting on an appeal from a federal magistrate, was he not?

MR REILLY:   Yes, he was, your Honour.  I was simply making the point that his Honour was of the view that this applicant was very unmeritorious, indeed.  Certainly, the Tribunal found that he had fabricated his claims and that was a view that his Honour found to be well open to it.  I am referring to, page 39, paragraph 17, of his Honour’s decision: 

For reasons well open to it, the Tribunal considered, not to put too fine a point on it, that the appellant was a liar and that his complaints had no foundation in reality . . . 

There is no indication at all that there has been any jurisdictional failure or error on the part of the Tribunal –

Indeed, just reading the first sentence on page 40, that his “manner of advancing” his claims in the court:

appears of a piece with what the Tribunal found to have been his manner of proceeding before the Tribunal.

GUMMOW J:   Are the written submissions for the applicant here?

MR REILLY:   Yes, your Honour.  They are the documents your Honour has probably become quite familiar with in recent times, starting at page 44, and the application for special leave is at page 42, relying on the decision of this Court in Muin.

GUMMOW J:   What do you say about the reliance on Muin?

MR REILLY:   We say that there was no attempt to prove any facts analogous to those that were agreed in Muin, either before Federal Magistrate Barnes or before Justice Madgwick, and, therefore, the claim has no factual foundation.

GUMMOW J:   Thank you. 

We are of the view that it would be futile to allow an adjournment because, having regard to the materials, it appears to us that if the matter were to proceed with a special leave hearing, there would be no prospects of success in obtaining that grant of special leave.  Accordingly, the application for an adjournment is refused.  It follows that the application for special leave itself is refused with costs.  Call application No 12. 

AT 2.17 PM THE MATTER WAS CONCLUDED