Applicant NARF of 2002 v MIMIA

[2004] HCATrans 275

[2004] HCATrans 275

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S236 of 2003

B e t w e e n -

APPLICANT NARF 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 FRIDAY, 6 AUGUST 2004, AT 10.51 AM

Copyright in the High Court of Australia

MR S.B. LLOYD:   May it please the Court, I appear for the respondent.  (instructed by Sparke Helmore)

GUMMOW J:   Yes, Mr Lloyd.  Is there any appearance for the applicant?

MR LLOYD:   I understand that he has not been identified either by my solicitor or the Deputy Registrar. 

KIRBY J:   Could you write on a piece of paper his name, Mr Lloyd?

GUMMOW J:   I think it appears at page 16 of the book.  I may be wrong about that. 

KIRBY J:   It is page 1 actually, too. 

MR LLOYD:   Your Honour, I do not actually have the Court book but ‑ ‑ ‑

KIRBY J:   We do not want it mentioned on the transcript because of the provision of the Act, but perhaps the officer could call the name outside so that if he is in the precinct he could be brought into Court.

GUMMOW J:   Officer, will you call the name outside the Court?

KIRBY J:   Is there an interpreter present in Court?  Very well, perhaps you might come forward.  Is the applicant outside the Court?  Have you met the applicant, may I ask?

THE INTERPRETER:   He did not actually show up.

KIRBY J:   I see. Perhaps you might go with the officer and make sure the name is correctly stated.

COURT OFFICER:   No appearance, your Honour.

GUMMOW J:   Thank you, Officer. 

KIRBY J:   Perhaps the interpreter might come forward so that she gets her fee and identifies herself.

GUMMOW J:   Can we have your full name?

THE INTERPRETER:   My name is Amir Hossain, your Honour. 

KIRBY J:   You are an interpreter in the Bengali language to the English language? 

THE INTERPRETER:   That is correct, your Honour. 

KIRBY J:   The language of Rabindranath Tagore. 

THE INTERPRETER:   Tagore, yes, that is right. 

GUMMOW J:   Sit down for a minute.  Well, Mr Lloyd, what should we do?

MR LLOYD:   If your Honour directs the matter to be dealt with on the papers under Order 69A, rule 15(2)- ‑ ‑ ‑

GUMMOW J:   Order 69A?

MR LLOYD:   Rule 15(2). 

GUMMOW J:  

Where an application is listed for hearing and it appears to the Court or a Justice that a party is likely to be unable . . . to appear personally . . . the Court may direct that the party’s case be considered on the basis of his or her summary of argument and any reply without oral argument from that party.

KIRBY J:   Well, how do we know that he is likely to be unable?  It may be he has just been knocked down by a car or something.  We just do not know.  This man is not in immigration detention?

MR LLOYD:   No.

KIRBY J:   That would be a reason for being unable to be present, but, as far as you know, he is at liberty. 

MR LLOYD:   I think he – although he is not here ‑ ‑ ‑

KIRBY J:   This is not a case where a medical certificate has been provided to indicate that he is unwell today or asked for an adjournment?

MR LLOYD:   No.  I think the next case is such a case, but not this case.

GUMMOW J:   All right.  I think we should deal with it.  What do you want to say, Mr Lloyd?

MR LLOYD:   In my submission, there is nothing to the point.  The matter is ‑ ‑ ‑

GUMMOW J:   It looks like an attempt to re‑agitate merits.

MR LLOYD:   Absolutely, and to some extent it is just raising things that were not raised below.  The Muin point – there is no evidential basis for it, and the other points are not particularised in any significant manner.

GUMMOW J:   In this matter, the applicant, when the matter was called this morning, did not appear, although the translator who had been engaged did appear.  We have looked at the papers.  We are convinced that there would be no prospects of success were leave to be granted.  Accordingly, special leave is refused and refused with costs. 

Thank you, Translator. 

AT 10.57 AM THE MATTER WAS CONCLUDED