Applicant VKAV v MIMIA

[2004] HCATrans 154

[2004] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M191 of 2003

B e t w e e n -

APPLICANT VKAV

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for reinstatement of application for special leave to appeal

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 5 MAY 2004, AT 9.54 AM

Copyright in the High Court of Australia

MR A.F.L. KROHN:   May it please the Court, I appear on behalf of the applicant.  (instructed by Ravi James and Associates)

MR R.C. KNOWLES:   If it please the Court, I appear for the respondent.  (instructed by Clayton Utz)

HIS HONOUR:   Counsel should be aware that I have read the written submissions which each has made.  I have looked at, in particular, the decision of Justice McHugh in Hodgson v The Minister.  Mr Krohn, it seems to me the position is this, that the delay in this case is very long.  In effect, the application now made is provoked only by the obtaining of a certificate of deemed abandonment.  Even now no draft documents are submitted.  The explanation offered is very scant.  Against that is the fact that the Minister points to no prejudice. 

It seems to me that there is some awkwardness in my diving into and making an assessment of the prospects on leave if I were to form the view that the application is not unarguable.  I am presently left with the disposition that it may be better to reinstate and extend the time to give you until 4.00 pm on 12 May to comply with Order 69A rule 6(1) and to say that any further default would be unlikely to be excused and that it may well lead to a conclusion from the bare fact of default that the applicant intends to abandon the application, leaving it to the Minister to make application for dismissal for want of prosecution.  That is putting the cards on the table, is it not, Mr Krohn?

MR KROHN:   It is very helpful, your Honour.  May I perhaps direct your Honour’s attention to perhaps in some ways the more straightforward, but they might be the more time‑consuming, aspects of the compliance with the rule, which would be the preparation of the draft index of the application book and the application book.

HIS HONOUR:   Nothing complex about preparing this index, Mr Krohn.  I would have thought it would be the most plain vanilla imaginable.

MR KROHN:   Then if your Honour is minded to reinstate the application ‑ ‑ ‑

HIS HONOUR:   I have not heard Mr Knowles, have I? 

MR KROHN:   No, your Honour.  Perhaps if I might also direct your Honour’s attention to a couple of aspects of the history of the litigation which I think is relevant in putting the applicant’s conduct in perhaps a better light than the respondent would propose.  When one sees the history of the application from the beginning of the application for the protection visa, the applicant has moved always until now in a timely fashion, including even the application for a protection visa, which was a matter of a few weeks after her arrival.

HIS HONOUR:   I understand that.  I think the difficulty with that proposition, if there is one, is that now we are at the sharp end of the process.  This is the last port of call and we have this quite lengthy period.

MR KROHN:   I understand, your Honour.  Your Honour, I did obtain ‑ ‑ ‑

HIS HONOUR:   Can I tell you a real and practical thing that is underpinning all of this.  If I refuse the extension, what is that likely to provoke – an appeal to a Full Court against the refusal of extension?  The time of the Court is occupied then on the interlocutory application.  It is better to cut to the chase, get to the merits, if there are any, argue the merits and, if there is a leave point, grant leave; if there is no leave point, refuse leave.

MR KROHN:   Yes, your Honour.  Your Honour has proposed 12 May.

HIS HONOUR:   Yes.  The auction system in Victoria is not working well at the moment, Mr Krohn, I have noticed.

MR KROHN:   Is it not?

HIS HONOUR:   You are about to make a vendor’s bid, are you?

MR KROHN:   At the moment, your Honour, I am briefed in the matter for the step before your Honour.  I would envisage, although I do not know, but it is likely that I might be briefed to draw the necessary documents.  I am appearing in a Full Court appeal in the Federal Court next Monday.  If your Honour were minded to grant until, say, even Friday of next week rather than the Wednesday, that might be of some assistance.  If your Honour is not, then I just would need to seek instructions for this reason, that I discussed dates and got instructions about dates by which the applicant could be certain that the documents would be provided.  The dates I discussed with her were a little different and I just should get clear instructions.

HIS HONOUR:   It does not engender confidence.  Friday, 14 May I might wear, subject to anything Mr Knowles says, but, look, serious time.

MR KROHN:   I understand, your Honour.  The applicant is serious about going on with it.  She does want it reinstated and I would respectfully agree that it would be a more efficient way of dealing with it to do that and then to

see whether she proceeds.  My instructions are very definite that she intends to proceed and that she now has the necessary support to be able to do that.

HIS HONOUR:   Could I say this not so much to your client but more generally, Mr Krohn.  The deemed abandonment provisions are there for the protection of everybody.  Extensions of time are not as of course, they are not as of right, nor are the practical considerations to which I have referred sufficient to carry the day in every case.  Indeed, were it to emerge that this was a continuing pattern or even a pattern having any repetition – as I say, I do not direct this to you, to your client, but much more generally – that six‑month rule may well be applied with unerring application save for extraordinary cause shown.

MR KROHN:   I understand, your Honour.

HIS HONOUR:   There we are.  Let us hear what Mr Knowles has to say.

MR KROHN:   Yes, your Honour.  I had been going, if your Honour was minded to go into any of the merits, to draw your Honour’s attention to a Full Court judgment of the Federal Court relating to the substantive matter, but it was only ‑ ‑ ‑

HIS HONOUR:   It is a variation on a theme for the applicant to say that the applicant’s original application was not valid.

MR KROHN:   I am sorry, your Honour?

HIS HONOUR:   It is a variation on a theme, is it not?  It is an unusual application, but there we are.

MR KROHN:   Yes, your Honour.

HIS HONOUR:   Mr Knowles, you have observed my putting the cards on the table.  Where do we go from here?

MR KNOWLES:   Your Honour, perhaps firstly in relation to the prejudice point, it is conceded in a general sense that there is no prejudice that cannot be cured by a costs order.  However, in addition to that though, there is a public interest in the finality ‑ ‑ ‑

HIS HONOUR:   It was the proper administration of the Act which is underpinning this.

MR KNOWLES:   Yes, that is so, your Honour.

HIS HONOUR:   The proper administration of the Act is not assisted if the six‑month rule is ignored.  Indeed, the proper administration of the Act is not assisted and the proper administration of the Court is not assisted if the time limits fixed by the rules are not observed.  As I say, if this were to emerge as another way of proceeding, ignore the time limits, “We’ll extend the time”, there may well be found to be a very short and sharp answer to it.

MR KNOWLES:   That certainly is the respondent’s concern and, in the respondent’s submission, even a lack of prejudice will not overcome all the other factors which are so abundantly against the exercise of the Court’s discretion in this instance.  The other aspect that your Honour has referred to is the prospect of an appeal from any interlocutory decision.  That has not actually occurred at this stage, your Honour.  It is a speculative notion, with respect.  The respondent would submit that for all we know the matter may actually conclude at this particular point and not go further.

In relation to the special leave application prospects if it were to be reinstated, it is certainly the respondent’s submission that there are none.  In that sense the respondent submits that there is concurring Full Federal Court authority on the point and that the matter is not of such public importance as to warrant the special leave application succeeding.

HIS HONOUR:   If I were to reinstate, what do you say about extending the time, say, to Friday, 14 May for compliance with Order 69A rule 6(1) directing further proceedings in the application in accordance with the rules, but indicating – and it could be no more than an indication – that subsequent failure to comply may well evidence intention to abandon and provoke application for dismissal for want of prosecution?

MR KNOWLES:   If that is the Court’s disposition in this matter – I understand that it is all steps under Order 69A, including preparation of the application book and service of the application book – the respondent would accept that date of 14 May.

HIS HONOUR:   No, 14 May is to produce the documents required by rule 6(1).  That is only summary of argument and draft notice, because we then have to go through index.

MR KNOWLES:   Of course, your Honour, yes.

HIS HONOUR:   We have to go from there to index plus application book.

MR KNOWLES:   The respondent accepts that, certainly, your Honour.  The respondent would accept that date, if that were the Court’s disposition.  The respondent would, if the date were not complied with, intend to bring

on an application seeking that the matter be dismissed for want of prosecution.

HIS HONOUR:   Yes.  I understood you have asked for costs.

MR KNOWLES:   Yes, your Honour.

HIS HONOUR:   If I were to order that the applicant pay the respondent’s costs of and incidental to this application, that is, the application for extension, does that meet the case?

MR KNOWLES:   It does, yes, your Honour.

HIS HONOUR:   Mr Krohn, can you resist such an order?  I see you do in your written submissions, but why should you?

MR KROHN:   In my submission, your Honour, it would be appropriate for costs to be costs in the cause.

HIS HONOUR:   Your client is seeking an indulgence.

MR KROHN:   True, your Honour.

HIS HONOUR:   Your client is getting an indulgence.

MR KROHN:   That is true, your Honour.  I do not say anything further about that, may it please the Court.

HIS HONOUR:   This is an application to set aside the deemed abandonment of an application for special leave brought about by the operation of Order 69A rule 13 of the High Court Rules.  The course of events in this matter is an unhappy one.  The applicant arrived in Australia on 3 December 1999.  She arrived in this country on a visitor visa.  Very soon after her arrival the applicant lodged an application for a protection visa.  The delegate of the respondent Minister refused that application in March 2000 and the applicant applied to the Refugee Review Tribunal for review of that refusal.  On 24 August 2001 the Tribunal handed down its decision dated 8 August 2001 affirming the delegate’s decision not to grant a protection visa to the applicant.

On 20 September 2001 the applicant filed an application for judicial review in the Federal Court.  That application was determined and dismissed on 8 November 2002.  The applicant filed a notice of appeal against that dismissal and on 7 May 2003 the Full Court of the Federal Court of Australia dismissed the appeal against the order made by the primary judge dismissing the application for review.  On 3 June 2003 the applicant filed an application for special leave to appeal to this Court from the Full Court’s orders of 7 May 2003.

The applicant did not take the steps required by Order 69A rule 6(1) which obliged her, within 28 days of filing her application, to file and serve a summary of argument and a draft notice of appeal on any party who had filed a notice of appearance, in this case the Minister.  More than six months having elapsed without her complying with Order 69A rule 6(1), Order 69A rule 13 provided that her application should be deemed to be abandoned “unless the Court or a Justice or Registrar has otherwise ordered or directed”.  Order 69A rule 13(2) provides that:

On a request by the respondent, a certificate of deemed abandonment shall be provided by the Registrar and thereupon subrules 12(2), (3) and (4), with the necessary adaptation, shall apply.

A certificate of deemed abandonment was issued on 16 February 2004.  Approximately one month later, on 17 March 2004, the applicant applied for an order that the certificate of deemed abandonment be set aside.  The explanation offered for the failure to comply with the Rules can be summarised sufficiently as being the applicant’s financial difficulties and inability on the part of her family to provide funds in time to enable compliance with the Rules.  This explanation is proffered without elaboration of the circumstances which lie behind what is said.

The respondent Minister points to no particular prejudice in this application that would follow were the deemed abandonment to be set aside.  Rather, the Minister points to the undoubted difficulties which follow for the due administration of the Migration Act – and I would interpolate the due administration of the work of this Court – if the times fixed by the Rules are not adhered to.  Those considerations are of considerable weight.

The Minister contends that the application for special leave is one which is bound to fail.  Since I am of the opinion that the application for special leave should be reinstated, it is undesirable that I say more about the application than that it is not immediately apparent to me that on its face the application is beyond argument.  The points which the applicant seeks to agitate have this unusual aspect to them, that they are founded in the proposition that her purported application for protection was invalid for want of provision of sufficient particulars.

As I indicated to counsel in the course of argument, if the application for special leave is reinstated, it is to be reinstated on terms that the steps required by Order 69A rule 6(1), namely, the filing and serving of a summary of argument and a draft notice of appeal, must take place within a very short time.  I will fix 4.00 pm on Friday, 14 May 2004 as the time by which those steps are to be taken.

As I also indicated in the course of argument, however, subsequent compliance with the Rules of Court for the taking of further steps in the prosecution of the application for special leave is expected.  Any departure from the times fixed by the Rules may well be understood as indicating an intention on the part of the applicant to abandon her application and provoke application by the Minister for an order dismissing the application for want of prosecution.  In short, if the applicant is to obtain this one indulgence, further indulgence is unlikely to be granted.

In all the circumstances, I am of the view that the better course to adopt in this case is to order as follows:

1.        Order that the application for special leave dated 3 June 2003 be reinstated;

2.        Extend the time for compliance with Order 69A rule 6(1) of the High Court Rules to 4.00 pm, Friday, 14 May 2004;

3.        Direct further proceedings in the application be in accordance with the Rules;

4.        Order that the applicant pay the respondent’s costs of and incidental to this application;

5.        Certify for the attendance of counsel.

MR KROHN:   Your Honour, I do not know if it is prescribed or not, but is it appropriate for completeness for your Honour to make an order setting aside the certificate of deemed abandonment?

HIS HONOUR:   I think the order for reinstatement has that effect.

MR KROHN:   May it please the Court.

HIS HONOUR:   Is there anything else that counsel desire to raise about the forms of order?

MR KROHN:   No, your Honour.

MR KNOWLES:   No, your Honour.

HIS HONOUR:   Very well.  There will be orders in those terms.  Call the last matter in the list.

AT 10.20 AM THE MATTER WAS CONCLUDED