Applicant NANE of 2002 v MIMIA

[2003] HCATrans 509

[2003] HCATrans 509

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S467 of 2002

B e t w e e n -

APPLICANT NANE OF 2002

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 2.25 PM

Copyright in the High Court of Australia

MR D.J. BREZNIAK:   I appear for the applicant.  (instructed by the applicant)

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

GUMMOW J:   Yes, Mr Brezniak.

MR BREZNIAK:   This is an application for special leave against a refusal to permit leave to appeal out of time against a decision of a judge of the Federal Court.

GUMMOW J:   Justice Lindgren?

MR BREZNIAK:   Justice Lindgren’s decision.  Before proceeding with the application, I wish to inform the Court that my instructions came very recently and in the recency of my instructions I have sought to better draft the contentions which are advanced as the applicant’s summary of argument which are reported in the application book at page 65.  I have given a copy to my learned friend.  If I may hand up the applicant’s summary of argument.

KIRBY J:   It sounds a pretty unpromising application to be applying for special leave against an order which formally is the order refusing an extension of time.  That is a purely procedural matter.

MR BREZNIAK:   Yes, a purely procedural matter.

KIRBY J:   I cannot remember in my eight years here that we have ever given special leave in such a matter.

MR BREZNIAK:   No, I have not been able to find ‑ ‑ ‑

GUMMOW J:   Perhaps we had better take a moment, Mr Brezniak, to read this to ourselves.  Yes, Mr Brezniak.

MR BREZNIAK:   There is not much by way of elaboration of argument that is intended to be added to what is in the written submissions, the applicant’s summary of argument.  It is a simple question of the applicability after the decision in S157 v Commonwealth of Australia, a decision of this Court in relation to the decision both of the judge who made the decision, Justice Sackville, and the refusal by the judge to grant leave to appeal out of time.  Those are my submissions.

GUMMOW J:   Thank you.  Yes, Mr Smith.  Is there anything you want to say in response to these written submissions?

MR SMITH: Yes, your Honour, only that, although Justice Lindgren did rely on the interpretation of section 474, which is no longer valid, he still proceeded on the well‑accepted principle.

GUMMOW J:   Of jurisdictional error?

MR SMITH:   That is how Justice Sackville found it, but his Honour Justice Lindgren still proceeded on the well‑accepted principle that in order to get an extension of time to appeal, one must show at least some merit in the appeal.  That has not been established today.

KIRBY J:   The conventional way in which, as I remember it, you have to get an extension of time is:  (a) you have to show an excuse for your delay as far as you can; and (b) you have to show a reasonably arguable point, because otherwise (a) does not lead anywhere.  Do you say Justice Lindgren approached that matter in that way, which is the orthodox way, and that nothing in the subsequent decision of the Court in 157 and 134 really alters that consideration?

MR SMITH:   That is the way that Justice Lindgren approached it.  Because Justice Sackville approached the question before him as a basis of jurisdictional error under section 39B, then his Honour Justice Lindgren was correct in the conclusion at least that there was no merit in the appeal.

KIRBY J:   Essentially the Tribunal just disbelieved the applicant, did it not?

MR SMITH:   Yes, your Honour.

KIRBY J:   So that if one, as it were, bypasses the procedural problem which the applicant got himself into and looks past that into the substance of the matter to see whether in some way because of the seriousness of the matter if this Court were to entertain it, it would lead anywhere, it would still face that fundamental problem at all times, that the flaw that was found by the primary judge of the Federal Court was simply not present.  There was no basis to attack the finding by the Tribunal against the applicant.  He was just disbelieved in numerous respects.

MR SMITH:   Yes, your Honour, that is the case.  If your Honours please, those are my submissions.

GUMMOW J:   Thank you.  Mr Brezniak.

MR BREZNIAK:   I contend to the contrary of my learned friend in relation to the decision of Justice Lindgren.  Justice Lindgren started from the proposition that there was a strong provision being what was then the privative clause, which precluded any attack on the decision of the Refugee Review Tribunal.  The attack on the decision of the Refugee Review Tribunal was closed from the beginning before Justice Lindgren in any consideration which he gave to the merits.  There was no chance for the applicant to challenge in any proper way or take advantage in any proper way of the law which he could have taken advantage of if it had not been for the Hickman principle that was then applied.

It was clear that Justice Sackville, in my submission, took a similar attitude, although Justice Sackville did make the comment that there was nothing by way of merit. He made the comment that even if section 474(1) had not been enacted, the application for judicial review would have failed on the ground that the applicant had not established any jurisdictional error on the part of the RRT, a point which his Honour made, we submit, in error, a point which could have been challenged had the challenge been allowed to be made, a point which was not, in our submission, one which would be sustained if the applicant in these proceedings had had the opportunity for a full proper and wholesome examination of the decision of the Refugee Review Tribunal.

I cannot put it any stronger than that.  We say that the whole approach of the judgments in the Federal Court in this matter is cast in the shadow of the narrow strictures of the law as it applied before the decision of this Court in S157 and the other case which your Honours referred to.

GUMMOW J:   Thank you. Insofar as this application was originally framed, it sought to raise questions concerning the interpretation of section 474 of the Migration Act 1958 (Cth). Those issues have been overtaken by the decisions of this Court in Plaintiff S157 of 2002 v The Commonwealth (2003) 77 ALJR 454 and Re Minister; Ex parte Plaintiff S134 of 2002 (2003) 77 ALJR 437 and there is no need to expand on those issues.

Insofar as the applicant alleges jurisdictional error on the part of the Refugee Review Tribunal, we are not convinced that he has an arguable case or that the primary judge in the Federal Court of Australia erred in rejecting his contentions.  The Tribunal did not accept the applicant as a reliable witness and on the basis of its conclusions on all of the evidence it rejected his claim for a protection visa on the suggested basis of refugee status.

Formally the applicant’s last application in the Federal Court was for an extension of time to file and serve a notice of appeal to the Full Court.  That appellate jurisdiction was exercised by Justice Lindgren.  Justice Lindgren refused the extension of time after approaching the matter of extension in an orthodox manner.  It would be rare, indeed, for this Court to intervene in such circumstances.  However, we have looked at the substance of the applicant’s complaints which were developed in further written submissions today. 

We are not convinced that there are any reasonable prospects of establishing jurisdictional or other error.  Accordingly, special leave is refused and refused with costs.

AT 2.36 PM THE MATTER WAS CONCLUDED