Applicant S96-2003 v MIMIA

[2003] HCATrans 282

[2003] HCATrans 282

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S96 of 2003

B e t w e e n -

APPLICANT S96/2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 AUGUST 2003, AT 12.18 PM

Copyright in the High Court of Australia

APPLICANT S96/2003 appeared in person.

MR A. MARKUS:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

HAYNE J:   Yes.  You are the applicant, sir?

APPLICANT S96/2003:   Yes, your Honour. 

HAYNE J:   And you appear in person? 

APPLICANT S96/2003:   Yes. 

HAYNE J:   As you have seen, you have up to 20 minutes to add to what has been put in your written papers.  We have, of course, read the written papers, but if you go ahead now, please.

APPLICANT S96/2003:   Thank you, your Honours.  I am the applicant of S96/2003.  Pursuant to High Court Rule 69A, 2(2) this is an application for special leave to appeal from the decision of the Full Court of the Federal Court made on 13 March 2003.  Your Honour, I brought this application before this honourable Court as I believe that I am in Australia in a democratic, civilised, wealthy and egalitarian society.

What I am seeking from this honourable Court is not a privilege rather than the very basic needs of a human being.  From the outset, there was extreme prejudice.  My application, initially, was not refused to be accepted by the registrar of the judge of the Federal Court.  It was refused by an officer at the registry desk, without consulting the duty registrar.  It was after my resistance that the officer at the registry desk – I had consulted the duty registrar.  Then the duty registrar sought the direction of honourable Justices Conti and Emmett.

There is no doubt that for the direction of Justice Emmett being an order which is subjected to be appealed without the need for notice of motion.  The important issue here is the direction of honourable Justice Emmett were wrong for not allowing me to be heard, not giving explanation in the direction, not referring me to legal assistance for pro bono.  The decision of the Full Court of the Federal Court, like the court as below, give the reason for the dismissal of my application as an incompetent – as an abuse of process.

My claims at all courts below were not properly heard or presented, and it is very difficult for the court as to reach to the conclusion of abuse of process, without being heard, without vindicating my claim, without

support documentation, and with insufficient materials.  Being heard is a vital part of procedural fairness.  The courts below did not indicate or give an explanation where the abuse of process in my application existed.

It is with great respect for honourable judges of the Full Court of the Federal Court, but it was a grave mistake and tragic miscarriage of justice to throw an application of this nature as an incompetent, without hearing the fundamental claims.  My claims are serious breach of human rights by the respondent.  This happened as a result of an abuse of power by the respondent.  Since April 2000 – that is, from the date my release from detention, from the detention centre – after being detained unlawfully and spending six months in the very high security section of the Villawood Detention Centre, I am not allowed do paid job, I am not allowed to get government support or really have…..support.  That means for nearly four years I am existing lawfully in this country, but I am not allowed to do paid job, I am not getting support.

How a person can survive four years?  Your Honours, if someone is Australian here, can he spend one more week without a dole or without work?  So, I am a human being.  How can I exist?  This is my claim.  When Parliament adopted laws, laws that prohibited me from working paid jobs or giving me support despite the fact that I stay in this country lawfully, I do not believe it has an intention for me to be incelibate or provide sex in return of accommodation or to be interrogated weekly just to get a transport fare.

The Migration Regulation – please refer to my list of authorities, No 11. The Migration Regulations 1994 – that is number 11, Migration ‑ ‑ ‑

HAYNE J:   Yes, we have that.

APPLICANT S96/2003:   I say there is a compelling need to work.  The respondent has the power to do – to give permission to work, but I believe this is serious abuse of power.  Your Honour, can I read this one?

HAYNE J:   We see the provision of the Migration Regulation.  The immediate question is, can you demonstrate that it is arguable that the Full Court of the Federal Court was wrong?  The question before them was a narrow question.  We do understand that you say that narrow question arises out of a much larger and, you say, more significant, question, but the narrow question and the only question before us is, can you show that the Full Court of the Federal Court is arguably wrong?

APPLICANT S96/2003:   Your Honour, in a medical profession is difficult for me to differentiate.  It is a matter of fact and matter of law.

HAYNE J:   I understand that.

APPLICANT S96/2003:   What I suggest to you, what I would like your Honour to consider, just the law of humanity, because this honourable Court has the power.  That is the way.  But this – there is abuse of power by the respondent.  It says, for example:  failing to take a relevant consideration into account in the exercise of power, or an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.  So, I am – in general, I have been…..a means of subsistence.  There are also so many international conventions, like the United Nations International Convention on Civil and Political Rights, Article 1(2) states the following:

In no case may a people be deprived of its own means of subsistence.

Your Honour, because this is – there is, I understand, procedures, rules.  They are very important, but for me also is very difficult to prove because if you refer on page 44 of my application book –

HAYNE J:   Yes.

APPLICANT S96/2003:   It is page 44, paragraph 4.  The primary judge, Honourable Justice Emmett, the secondary judge Honourable Justice Gyles and the Full Court judges all are wrong.  Justice Dixon in Dey v Victorian Railway Commissioners said:

In Burton v Shire of Bairnsdale, O’Connor J said:  “Prima facie every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedures, which give him full time and opportunity for the presentation of his case to the ordinary tribunals and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious will never be exercised unless the plaintiff’s claim is so obviously untenable that it cannot –

This judge – this honourable Judge has mentioned, because I am not represented.  So there is a very significant issue in this application.  I may not be the only one.  I may not be.  There may be thousands – who knows…..knows.

HAYNE J:   Yes.

APPLICANT S96/2003:   So I like to prove because the Full Court – and also the other point I would like to mention about, the Migration Act 1958, section 91R. In the application book it is on page 33.

HAYNE J:   Yes.

APPLICANT S96/2003:   Because this – it is mentioned about “persecution”.  So a “denial of access to basic services”, somewhere in the middle of the page:

(b) significant physical harassment of the person;

(c) significant physical ill‑treatment of the person;

(d) significant economic hardship that threatens the person’s capacity to subsist –

This the Migration Act 1958. So, this is persecution…..how can I exist? How can – this is very, you know. To tell you the truth, the physical, you know, so many effects, I do not wish for my enemies these kind of things. But what I would like to prove, for example, for another fact, your Honours, pardon me for – I had got to section 91X of the Migration Act.  Please refer to my list of authorities – 22 – I am sorry, 21. 

HAYNE J:   Yes.

APPLICANT S96/2003: No 21. This – the Migration – section 91X of the Migration Act 1958 prohibits names of applicants for protection visas from being:

published by the High Court, the Federal Court or the Federal Magistrates Court –

When I approached the Federal Court not to mention my name, because of the prejudice, they said – and now, then please refer attachment 24.  Please read that.

HAYNE J:   Yes, we have read that.

APPLICANT S96/2003:  

Your request to amend the judgment in the above matter was considered by the judges who sat on the Full Court in the matter. It was the view of the judges that section 91X does not apply –

This – the Parliament adopted this law for a High Court, Federal Court and Federal Magistrates Court.  So this is extreme prejudice.  That is why the judgment of the Federal Court is wrong.  Your Honour, an application before a court is a process.  From that this application is presented at the Registry desk to finally of the decision in the Courtroom before you honourable Judges is the process.

Through this process – through this processing my application, I, the applicant, was not only affected by the prejudice, but also I have been bullied through letter correspondences and telephone conversation.  No one could expect this kind of situation from the Federal Court staff, from one of the highest public or government office on the continent.  Please, I have some letter correspondence that is No 18, 1920.  I would like to show you how the bullying happened.

HAYNE J:   Yes, we have read that.  That does seem to me to be getting a long way away from the question, the very narrow question, which we have to decide.

APPLICANT S96/2003:   Yes, because I want to show, your Honour – I want to show the prejudice.

HAYNE J:   Yes.

APPLICANT S96/2003:   I am not interested in the content of this rather than the physical appearance of the letter – the physical appearance.  Your Honour, the first one, No 18, it says, “Dear Sir”.  Because this letter is copied to Mr Markus, it says, “Dear Sir”.  The other two – “Dear Sir”, and it says, “Yours sincerely”.  The other one, because it is not copied, it is directly to me, there is no salutation, there is no complimentary closing.  This is a way I have been bullied.  This is not – no one is expected from the Federal Court a business letter like this.  This is because, truly, I have been bullied, that is why.

HAYNE J:   Yes.

APPLICANT S96/2003:   Finally, as I stated on my reply to respondent’s argument at – that is page 44 of the application book.

HAYNE J:   Yes. 

APPLICANT S96/2003:   It is in paragraph 5.  There are real and serious questions that should have to be answered by the High Court of Australia.  The England and Wales High Court, that is a Court from common law countries, has recently dealt a very similar case in every aspect.  Please see R(Q) v Secretary of State for Home Department.  In addition to the authority just mentioned from the common law countries, the High Court of Australia has a power to deal the case as a fresh application or to grant me special leave to appeal automatically.  Because the original jurisdiction,

section 75(v) of the Constitution of the Commonwealth of Australia, which reads:

Original jurisdiction of High Court . . . 

(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.

Well, your Honours, there is – there is a very serious issue of human right.  I would like to mention, four year is not four days.  So, your Honour, I like some remedy…..please.

HAYNE J:   Thank you very much.  We need not trouble you, Mr Markus.

We are of the opinion that there is no reason to doubt the correctness of the conclusion in the courts below.  The application must be dismissed with costs.

AT 12.36 PM THE MATTER WAS CONCLUDED