Applicant S1004 of 2003 v MIMA & Anor

[2007] HCATrans 75

[2007] HCATrans 075

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S380 of 2006

B e t w e e n -

APPLICANT S1004 OF 2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 14 FEBRUARY 2007, AT 10.14 AM

Copyright in the High Court of Australia

APPLICANT S1004 OF 2003 appeared in person.

MR A. MARKUS:   If your Honour pleases, I appear for the first respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Is there a translator in Court.

NUTAN MAHARAJ, affirmed as interpreter:

HIS HONOUR:   Thank you, madam, would you step down and go back and sit next to the applicant.  Would you ask him if he wants to add anything to the written materials that I have been reading?

APPLICANT S1004 (through interpreter):   Yes, your Honour.  I had no permission to work, your Honour, for a long time that is why I could not get the help of a lawyer.  I did not get legal help any time, RRT, Federal Court or here.  I tried my best and I really worked hard to submit my submissions on the forms on 28 November.  I came there at 3 o’clock but there was an error found by the Registrar there.

HIS HONOUR:   That is not the point.  This matter has been in the legal system since 1999.  It has already been before High Court Judges on several occasions.

APPLICANT S1004 (through interpreter):   Once, yes, I did.

HIS HONOUR:   Why should the Court hear proceedings that are recycled over and over again?

APPLICANT S1004 (through interpreter):   Because now the circumstances in Bangladesh, in my country, are really bad for the last seven years.  I am a Hindu and from a minority group and a minority family from Bangladesh and for the last seven years this minority group has really been persecuted and, your Honour, if you have observed any news items, any papers, any magazines of Bangladesh or any video ‑ ‑ ‑

HIS HONOUR:   That is not answering the point.

APPLICANT S1004 (through interpreter):   That is why I have been repeatedly coming to the courts because I do not feel safe in my country.  I know I will be persecuted there.

HIS HONOUR:   Very well.  Is there anything else he wants to say?

APPLICANT S1004 (through interpreter):   No, your Honour.

HIS HONOUR:   Very well.  Yes, Mr Markus.  What is the immigration status of this gentleman, at the moment?

MR MARKUS:   Your Honour, the applicant, as I understand the position, is presently the holder of a bridging visa.

HIS HONOUR:   These last forever, do they?

MR MARKUS:   They do not last forever, your Honour.  A person who applies for judicial review is entitled to apply for a bridging visa on that basis.

HIS HONOUR:   Of course, rightly so.  Yes.

MR MARKUS:   Your Honour, it is ultimately a matter for the relevant delegate to decide whether to grant the bridging visa or not.  In relation to special leave applications they have been held to constitute the judicial review proceeding and therefore ‑ ‑ ‑

HIS HONOUR:   That is not what I am raising with you.

MR MARKUS:   No, I understand that, your Honour.

HIS HONOUR:   These visas seem to continue while there is a merry‑go‑round that just keeps going around.

MR MARKUS:   I understand what your Honour is alluding to.

HIS HONOUR:   I can only draw it to your client’s attention.

MR MARKUS:   I will draw it to their attention as well, your Honour.

HIS HONOUR:   Yes, very well.  In this matter you appear for the first respondent.

MR MARKUS:   The first respondent.

HIS HONOUR:   The Court holds a certificate from the Deputy Registrar that the second respondent, the Review Tribunal, submits to such order as the Court sees fit.  You oppose the reinstatement?

MR MARKUS:   Yes, your Honour.  May I take it your Honour has a copy of an affidavit ‑ ‑ ‑

HIS HONOUR:   Yes, I have looked at the affidavit of Elizabeth Warner Knight sworn 12 February which details the very lengthy series of events, which I took up with the applicant, involving the legal system over the last seven years, at least two visits to this Court.

MR MARKUS:   Thank you, your Honour.  Your Honour, just very briefly, the significant aspect of the present application for reinstatement, in our respectful submission, is whether the application for special leave, if reinstated, would have any prospects of success and we say it would not.  The latest series of proceedings were originally dismissed by the Federal Magistrates Court on 1 August 2006 on the basis that the application was incompetent and also an abuse of process.

The applicant’s attempt to appeal from that judgment was dismissed, or leave was refused by the Federal Court on 5 October 2006 when his Honour Justice Moore held that if leave was given any appeal, in his Honour’s view, was doomed to fail and, accordingly, leave to appeal was refused.  Your Honour, in my respectful submission, the proposed appeal would have no prospects of success.  The proceedings below were clearly both incompetent and an abuse of process.

HIS HONOUR:   Yes, I understand.  I do not need to hear you any further, Mr Markus.

MR MARKUS:   Thank you, your Honour.

HIS HONOUR:   Is there anything the applicant wants to say that he has not said before?

APPLICANT S1004 (through interpreter):   If I am given an opportunity, your Honour, I will engage a lawyer and do it legally and properly this time.

HIS HONOUR:   Thank you.

The litigious history of the applicant is detailed in the affidavit sworn 12 February 2007 by Elizabeth Warner Knight.  It provides material strongly supporting the conclusion reached in the Federal Court by Justice Moore on 5 October 2006 that the application before his Honour must fail, given the litigious history and the abuse of process involved.

Before the Court today is a summons filed 4 December 2006 seeking, in effect, the reinstatement of a special leave application of this Court.  That application should be refused because the special leave application itself, if carried forward, would be bound to fail.  There is no ground at all for seeing any possible error in the decision of Justice Moore of 5 October 2006 in the Federal Court.  Accordingly, the summons is dismissed, with costs.

MR MARKUS:   If the Court pleases.

HIS HONOUR:   I will now adjourn.

AT 10.25 AM THE MATTER WAS CONCLUDED