Applicants C8,9-2002, Ex parte RRT & MIMA

[2002] HCATrans 228

IN THE HIGH COURT OF AUSTRALIA

Registry  No C8 of 2002

In the matter of -

An application for a Constitutional Writ of Prohibition because of the breach of the rules of natural justice; Certiorari against the REFUGEE REVIEW TRIBUNAL and THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte –

APPLICANT C8/2002

Applicant/Prosecutor

IN THE HIGH COURT OF AUSTRALIA

Registry  No C9 of 2002

In the matter of -

An application for a Constitutional Writ of Prohibition because of the breach of the rules of natural justice; Certiorari against the REFUGEE REVIEW TRIBUNAL and THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondents

Ex parte –

APPLICANT C9/2002

Applicant/Prosecutor

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 17 JUNE 2002, AT 2.41 PM

Copyright in the High Court of Australia

______________________

APPLICANT C8/2002 appeared in person.

APPLICANT C9/2002 appeared in person.

MR J. BASTEN:   I appear for the respondent in each of those matter, if the Court pleases.  (instructed by Clayton Utz)

HIS HONOUR:   Yes, Mr Basten.  Now, has the interpreter been sworn?

REGISTRAR:   No, not yet, your Honour.

HIS HONOUR:   Could the interpreter be sworn to translate the evidence.

PETER KRASTEV, sworn as interpreter. 

HIS HONOUR:   Thank you.  Now, Mr Interpreter, I will address questions to the applicants, but when I do I will get you to translate them for me, if you would, please.

THE INTERPRETER:   Okay.

HIS HONOUR:   Yes.  Now, your name is not on the papers in this matter and I understand that you want a closed Court, is that so?

APPLICANT C8 (through Interpreter):   Yes, your Honour.

HIS HONOUR:   What is the reason that you want a closed Court because in this country courts are open to the public.

THE INTERPRETER:   I would like to say at the start that all the evidence given to be in short phrases so I could remember the statements. 

APPLICANT C8 (through Interpreter):  She asked me the cause, the reason for which I wanted a closed court is because I wanted to give evidence in private because of some statements which I have made to the judges in Bulgaria.

APPLICANT C8:   No, is no correct.  It is no correct, no, no. 

HIS HONOUR:   What is she saying?

APPLICANT C8 (through Interpreter):   In Bulgaria there are two court cases against me because I applied to leave Bulgaria for Australia.

APPLICANT C8:   No, no leave, no.

HIS HONOUR:   Do you not agree with the translation?

APPLICANT C8:   No.  Can I ask something?

HIS HONOUR:   Yes.

APPLICANT C8:   I think the interpreter cannot understand very well because she said in Bulgaria those two files would – Chief of Prosecutor’s Office constitute against her, but he translate because I leave Bulgaria.  It is not correct.

HIS HONOUR:   I do not want to waste time on this but what is the – I will ask you then, madam.  In fact, you might swear ‑ can you translate in the Bulgarian language?

THE INTERPRETER:   Okay.

HIS HONOUR:   I am sorry, I did not understand that.  In English, would you tell me again what is the ground that this applicant seeks a closed Court?

APPLICANT C8 (through Interpreter):   The reason to ask for closed Court is because the Chief Prosecutor in Bulgaria has two files against me.

HIS HONOUR:   Very well.

APPLICANT C8:  No, no, no ‑ ‑ ‑

HIS HONOUR:   She apparently does not agree with your translation, Mr Interpreter.

APPLICANT C8:   No.

THE INTERPRETER:    Well, she suggests that she will write this down later, the reason in Bulgarian, and I will translate it.  I cannot get the last trace very clearly.

HIS HONOUR:   I am not going to waste any more of my time on this particular aspect for the – I am not going to close the Court but for the moment each applicant can be referred to as “C8” and “C9”.  Would you tell – do you understand that?

APPLICANT C8:   Yes.

APPLICANT C9:   Yes.

HIS HONOUR:   Yes, very well.  Now, if you would take your seat.  Sit down, please.  Mr Basten, I have looked at this matter.  On the surface, the grounds appear very weak indeed and I have said in the past that I would not remit matters.  I do not think that matters ought to be remitted but in this particular case I think the matter should be remitted to the Federal Court which has jurisdiction to hear the case.  Do you want to say anything about that?

MR BASTEN:   No, your Honour.  In the circumstances, your Honour does not have all the papers even.

HIS HONOUR:   That is part of the problem.

MR BASTEN:   I understand that.

HIS HONOUR:   Yes.  Mr Interpreter, will you tell the applicants that although they have commenced the proceedings in this Court the Federal Court of Australia has power to hear these applications and I, subject to what they say, I am going to send this case to the Federal Court of Australia for hearing.  Do you want to say anything about that?

APPLICANT C8 (through interpreter):   No.

HIS HONOUR:   No objection?  She has ‑ ‑ ‑

APPLICANT C8 (through interpreter):   Do I have to answer to you statement?

HIS HONOUR:   No, I want to know if – my inclination – my present intention is to send this case to the Federal Court for hearing rather than it be heard in this Court.  I want to know from her whether she has any objections to that course and if she does what are the objections.

APPLICANT C8 (through Interpreter):   I have no intention to appeal to the Federal Court.

HIS HONOUR:   I am sorry, “I have no” what?  No further?

APPLICANT C8 (through Interpreter):   I have no intention to appeal to the Federal Court.

HIS HONOUR:   No intention?

APPLICANT C8:   No, no, it is not correct.

HIS HONOUR:   I have read your papers, in English, but ‑ ‑ ‑

THE INTERPRETER:   Could I show you these documents, I have seen your documents.

APPLICANT C8 :   Yes.

HIS HONOUR:   I have read the written documents. 

APPLICANT C8 (through Interpreter):   I have no term…..to appeal to the Federal Court.  This is the only possibility to get judgment here.

HIS HONOUR:   That is not right.  The Federal Court has power and the Minister agrees that the Federal Court has power to hear this case.

THE INTERPRETER:   This is not correct.

HIS HONOUR:   The Minister agrees that the arguments you seek to raise can be raised in the Federal Court.

THE INTERPRETER:   Could you repeat this, please.

HIS HONOUR:   The Minister for Immigration and Multicultural and Indigenous Affairs agrees that each of the matters that is raised by the applicants can be dealt with by the Federal Court.

APPLICANT C8 (through Interpreter):   I have not got time ‑ or limited time ‑ to appeal because the decision of the Tribunal was made -      on 3 May the Tribunal announced their decision.  I have not been given any time limit to appeal from this decision.

MR BASTEN:   Could I interrupt, your Honour?

HIS HONOUR:   Yes.

MR BASTEN:   I think if I am reading correctly, the fear is that because they have not lodged proceedings in the Federal Court within the 28 days, that is a problem.

HIS HONOUR:   Yes, I know.  That is not a problem.  Would you tell the applicant, Mr Interpreter, there is no question of them lodging an appeal.  I remit these proceedings – I send these proceedings in this Court down to the Federal Court for hearing  So these proceedings are heard by the Federal Court, not by a Justice of this Court.

APPLICANT C8 (through Interpreter):   In this case I do not think I will get proper justice.  I am not sure that I will get proper judgment in this Federal Court because I am not sure that my visa is still valid, because the Department of Immigration refused to extend my visa.  If the whole proceedings are terminated ‑ ‑ ‑

HIS HONOUR:   The proceedings are not terminated.  They are sent back to the Federal Court.  I am not going to listen to any more argument in relation to this matter.  The applicant will get justice in the Federal Court and I propose to send the matter to the Federal Court for further hearing.  Now, would you ask her which is the most convenient registry of the Federal Court to send it to: Canberra or Melbourne or where?  Where would she prefer the Federal Court to hear this case?  Canberra, Sydney, Melbourne or Brisbane?

APPLICANT C8 (through Interpreter):   At present, I am in Canberra – I prefer – I am in Canberra, therefore I prefer the proceedings to be held in Canberra because there are fewer migrants in Canberra and I hope the proceedings will be speeded up.

HIS HONOUR:   Yes.

APPLICANT C8 (through Interpreter):   But I am not in a good condition to wait for this judgment because I am not sure that I have valid visa at present.  I have been told by the Immigration Department that my visa – bridging visa has expired.  Thus, any moment I will probably be – could be called by the police to leave the country.  They declined categorically to extend my visa – the date of my visa.

MR BASTEN:   Your Honour, if I can interrupt.  The visa is valid until 28 days after the completion of the judicial review proceedings.

HIS HONOUR:   Your visa is valid until 28 days after the Federal Court hears your case.  Yes, very well. 

Now, the orders I propose to make in this matter are:

In C9 of 2002:

(1)  the further proceedings in this application in matter C9 of 2002 be remitted into the Federal Court of Australia Canberra District Registry;

(2)  the application for an order nisi proceed in that court as if steps already taken in the matter in this Court have been taken in that court; and

(3)  the Deputy Registrar of this Court should forward to the proper officer of that court photocopies of all documents filed in this Court.

In matter C8 of 2002 I direct: 

(1)  the further proceedings in this application for an order nisi be remitted into the Federal Court of Australia Canberra District Registry;

(2)  the application for an order nisi proceed in that court as if the steps already taken in the matter in this Court had been taken in that court;

(3)  the Deputy Registrar of this Court forward to the proper officer of that court photocopies of all documents filed in this Court.

I certify for counsel.  The costs of the proceedings in this Court are to abide the order for costs in the Federal Court.

MR BASTEN:   If the Court please.

HIS HONOUR:   Yes.  Would you translate that – yes.  Yes, thank you, Mr Interpreter.  Yes, anything further, Mr Basten?

MR BASTEN:   No.

HIS HONOUR:   Anything further?  Would you ask her if there is anything further?

APPLICANT C8 (through Interpreter):   I would like to ask whether there is definitely possible for the Federal Court to see to these proceedings – to this case.

HIS HONOUR:   Well, you will have to ask the Federal Court registry about the matter.  The matter will now go to the Federal Court. 

APPLICANT C8 (through Interpreter):   I would like to ask whether my case will be discussed – will be taken up in the Federal Court.

HIS HONOUR:   Yes, that is the whole purpose of these proceedings.  The matter has been sent to the Federal Court for hearing.

APPLICANT C8:   All right.

HIS HONOUR:   Yes, adjourn.

AT 3.09 PM THE MATTER WAS CONCLUDED