Applicant S277-2001 v MIMA

[2002] HCATrans 288

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S277 of 2001

B e t w e e n -

APPLICANT S277/2001

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 AUGUST 2002, AT 12.47 PM

Copyright in the High Court of Australia

APPLICANT S277/2001 appeared in person.

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

KIRBY J:   I think we have an interpreter in this case. 

THE INTERPRETER:   Yes, indeed, your Honour.  My name is Aramais Aroustian, a Russian interpreter. 

KIRBY J:   Yes.  What is your address? 

THE INTERPRETER:   Unit 2, 53 Ogilvie St, Peakhurst, New South Wales. 

KIRBY J:   Are you a registered interpreter for the purpose of the proceedings in the Court? 

THE INTERPRETER:   Yes, I am NAATI level 5. 

KIRBY J:   Thank you.  Very well, will you swear the interpreter?  Are you prepared to take the oath, or will you make an affirmation? 

THE INTERPRETER:   I will make an affirmation, but could I make a small comment concerning the applicant? 

KIRBY J:   Yes. 

THE INTERPRETER:   The applicant had requested an interpreter in the Georgian language.

KIRBY J:   Yes, I understand that. 

THE INTERPRETER:   Russian is not his first language.  By his own admission, he speaks a mediocre level of Russian, so I hope that there are no communication problems. 

KIRBY J:   Do you speak the Georgian language, or not? 

THE INTERPRETER:   No, your Honour. 

KIRBY J:   Yes, very well.  We will have to do our best, and if there is a problem, we will consider what we should do.

ARAMAIS AROUSTIAN, affirmed as interpreter:  

KIRBY J:   Yes, very well.  Thank you very much.  The applicant can sit down with you and if you would interpret as best you can and, if necessary, we will allow a little more time so that you can explain things to him.  Now, Mr Smith, you are appearing for the Minister. 

MR SMITH:   May it please the Court. 

KIRBY J:   Thank you very much.  Yes.  Well, is the applicant in a position to make his statement to the Court now?  Does he realise he has only 20 minutes in which to put his argument?  We have a written document which has been filed on his behalf, setting out reasons why special leave should be granted – it is in the English language – and we have read that document.  Does he understand that? 

THE INTERPRETER:   Yes. 

KIRBY J:   Does he wish to add anything to the written document?  Has he seen the written document? 

APPLICANT S277/2001 (through interpreter):   When you say “the document”, do you have in mind the book that was sent? 

KIRBY J:   It is a document called “Applicant’s Summary of Arguments”, which is a document of four pages, and then there is an amended summary of argument, which is a document of two pages.  These two documents have been put in the application book, which has been given to the members of the Court. 

APPLICANT S277/2001 (through interpreter):   I have seen it. 

KIRBY J:   In those documents, it is stated, and apparently signed by the applicant, that he would like to supplement the summary of arguments with oral argument.  The Court can deal with it on the written documents, but this is an opportunity, if he wants to say something more, within the time limit, to say it. 

THE INTERPRETER:   The applicant explains that he had representation.  The Court was due to be heard on 13 September, I believe, and that, based on that, the applicant’s representative went overseas.  All the documents and all the papers were given to the applicant’s representative.  Since the Court hearing apparently has been brought forward to an earlier date, the

representative is overseas, and the applicant believes the representative wanted to make a statement orally. 

KIRBY J:   He does or he does not want to make a statement? 

THE INTERPRETER:   He did ‑ ‑ ‑

KIRBY J:   He does? 

THE INTERPRETER:   I believe so.  Yes, he wanted to. 

KIRBY J:   He does.  Well, he should stand up at the podium there, and if you would stand beside him and translate as best you can what he says to us. 

THE INTERPRETER:   No, I believe the representative was supposed to ‑ ‑ ‑

KIRBY J:   The representative was going to speak? 

THE INTERPRETER:   Yes. 

KIRBY J:   But the representative is not here and the case is now proceeding, so we have to proceed with the matter unless he asks for an adjournment. 

THE INTERPRETER:   The applicant says, “I do not know what to do.  I do not know what is best.”  The applicant would like to ask for an adjournment until the representative returns. 

KIRBY J:   Yes, very well.  Well, we will just interrupt and ask Mr Smith.  Mr Smith, is it the case that this case was brought forward in the Court’s list from September to today? 

MR SMITH:   That is correct. 

KIRBY J:   Was that at the applicant’s request, or at the Minister’s request? 

MR SMITH:   I think it was the Court’s request, your Honour. 

KIRBY J:   I am sorry? 

MR SMITH:   I think it was the Court’s request.  I will have to confirm that with my solicitor, if I may. 

KIRBY J:   But the result is that the applicant is here with a Russian interpreter, not a Georgian interpreter.  He is obviously at a disadvantage to put his case.  His case has real difficulties and it might be more comfortable to deal with the matter when his representative is here, if his representative can be here in September. 

MR SMITH:   Your Honour, there is a question of the identity of that representative.  I understand it may be one of two migration agents, rather than a legal representative. 

KIRBY J:   Yes.  Perhaps we can ask the applicant.  Who is the representative that has prepared these documents that is not here today and why is he not here today? 

APPLICANT S277/2001 (through interpreter):   I do not know whether he submitted the papers to the Court or not, but he took all the documents from me and he promised to look at them and to study them. 

KIRBY J:   Who prepared the applicant’s summary of arguments?  Was that that representative? 

APPLICANT S277/2001 (through interpreter):   Yes. 

KIRBY J:   Does he know why he is not here today? 

APPLICANT S277/2001 (through interpreter):   Apparently he went to Europe.  I do not know whether he went there for a holiday or for some other reason. 

HAYNE J:   But went away at a time when he thought the hearing would be on 13 September, is that right? 

APPLICANT S277/2001 (through interpreter):   He has been there about a month.  When he discovered that the Court hearing would be on 13 September, that is when he left. 

KIRBY J:   Well, Mr Smith, it seems as though the bringing forward of this case, which ordinarily would not create a problem, in the circumstances, it seems to have created a problem for the representation of the applicant by the migration agent. 

MR SMITH:   Your Honour, I have a letter from the High Court which answers both the question of at whose request the move was made and when it was made.  Might I hand that up? 

KIRBY J:   Thank you very much.  First of all, show the letter to the applicant, and perhaps you could translate that letter. 

APPLICANT S277/2001 (through interpreter):   I received that also.  I believe I received two of them. 

KIRBY J:   Yes, very well.  You have no objection to the Court looking at that document? 

APPLICANT S277/2001 (through interpreter):   I have no objection. 

KIRBY J:   Yes.  Hand it up.  That is back in July, as Justice Hayne points out, and it does not appear to answer the question of why the matter was brought forward, unless it ‑ ‑ ‑

MR SMITH:   No, but by whom, your Honour. 

KIRBY J:   Yes.  Do you say that the letter indicates at whose request the matter was brought forward? 

MR SMITH:   Not strongly, your Honour, but it suggests that it was at the Registry ‑ ‑ ‑

KIRBY J:   Let us pass over the issue of by whom it was brought forward and why it was brought forward.

MR SMITH:   Yes, I accept that, your Honour. 

KIRBY J:   The fact is that we have an applicant for whom this is an important decision, who has real problems in his case, with an interpreter who is not interpreting his language, who asks for an adjournment in order that the matter can come before the Court on a day when he has a representative present.  I think that would be both in his interests, in the interests of justice, and more seemly, if that were so.  Is there any reason why the Minister would oppose that course? 

MR SMITH:   The only reason, your Honour, is that the applicant has been on notice for over a month that it would be today.  There has been no suggestion that he has made any other attempts to find other representatives. 

KIRBY J:   That is true, and if he had a legal representative, that would be fatal.  But he has an immigration agent, who apparently went overseas, so it is a little hard to burden him with the default – at least, to be sure that he is personally responsible for the default. 

MR SMITH:   Well, your Honour, those are my submissions. 

KIRBY J:   I would ask the Registrar, is 13 September a day which is a sitting day for special leaves in Sydney, or not? 

THE DEPUTY REGISTRAR:   Yes.  13 September is the…..

KIRBY J:   Yes.  Well, the Court is inclined to stand this matter over to 13 September.  Is that convenient to the list? 

THE DEPUTY REGISTRAR:   I think the list is possibly full, your Honour.  I do know that there is a vacancy in the 11 October list. 

KIRBY J:   Yes.  Well, Mr Smith, that is what the Court is inclined to do.  Have you anything to say about that date? 

MR SMITH:   No, your Honour. 

KIRBY J:   The Court is inclined to stand the matter over to 13 September, which was the date on which it was originally due to be heard, on the application of the applicant, who asks for an adjournment.  Is it the applicant’s understanding that the migration agent will be back in Sydney on 13 September and can appear for him on that day? 

APPLICANT S277/2001 (through interpreter):   Yes, he will be here. 

KIRBY J:   Yes, very well.  That is the order we make. 

We stand the application over to Friday, 13 September, in Sydney for the hearing as on a fresh application of this application.  Every endeavour should be made to get an interpreter in the Georgian language to assist the applicant to understand the proceedings on that day.  The costs of today will be reserved.  They will be in the disposition of the Court that hears the application. 

AT 1.02 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 13 SEPTEMBER 2002