Applicants M31-2004, Ex parte - Re MIMIA - [2004] HCATrans 318

[2004] HCATrans 318

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M31 of 2004

In the matter of -
An application for a Declaration or for a Writ of Prohibition or for an Injunction or for orders in the nature of Certiorari or Mandamus against THE MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent
THE REFUGEE REVIEW TRIBUNAL
Second Respondent

Ex parte –
APPLICANTS M31/2004
Applicants/Prosecutors

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 24 AUGUST 2004, AT 9.39 AM

APPLICANTS M31/2004 appeared in person.

MR S.P. DONAGHUE: May it please the Court, I appear for the first respondent. (instructed by Clayton Utz)

HIS HONOUR: I wonder if the interpreter might be sworn.

IRMA BAHDUS, sworn as interpreter:

MR DONAGHUE: The first respondent has served a summons in this matter seeking to have the proceeding dismissed.

HIS HONOUR: Is there material in support of that application, Dr Donaghue?

MR DONAGHUE: There is. There is an affidavit sworn by Mr Tom Mosby.

HIS HONOUR: Is that the affidavit of 29 July 2004?

MR DONAGHUE: That is right, it is.

HIS HONOUR: Has a copy of that affidavit been served on the applicant?

MR DONAGHUE: It has, yes.

HIS HONOUR: And do you rely on it?

MR DONAGHUE: I do rely on it, your Honour.

HIS HONOUR: Madam Interpreter, would you explain to the applicant a number of things. First, the statute tells me that I may not use his names in the course of the proceedings. I must refer to him by this awkward expression, Applicant M31. I apologise for that and I intend him no discourtesy. The Minister has asked for orders bringing his application to an end. The Minister submits that his application should fail and the Minister says it should fail because of the earlier proceedings that he took in the Federal Court.

The applicant has filed written submissions. His written submissions are dated 19 August. The Minister has also filed some written submissions

and those written submissions of the Minister and the affidavit are mentioned in this gentleman’s submissions. I have read these documents. Is there anything more that the applicant wants to say to me against the Minister’s argument?

APPLICANT M31/2004 (through interpreter): Initially I was not given a chance, opportunity, to defend myself. It is an important case, important matter, and the first opportunity that was given to me only lasted 45 minutes. I was not in any way that I was able to defend myself properly because 10 months prior to arriving in Australia I lost my 18‑year‑old son in Turkey. I arrived in Australia in 2001. Ten months prior to my arrival I lost my son, and due to this I was traumatised and depressed. I looked for him, could not find him, but I had to leave the country.

After arriving in Australia the same depression continued. It was an ongoing thing. Within 45 minutes…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] HCATrans 318
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the applicants, identified as M31-2004, for leave to appeal to the High Court of Australia against a decision of the Full Federal Court. The applicants sought to challenge the validity of a decision made by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA). The application was heard by Hayne J in chambers.

The central legal issue before Hayne J was whether the applicants had established an arguable case of error on the part of the Full Federal Court, which is the threshold requirement for granting leave to appeal to the High Court. Specifically, the applicants contended that the Full Federal Court had erred in its interpretation and application of the relevant provisions of the *Migration Act 1958* (Cth) and associated regulations concerning the review of decisions made under that Act.

Hayne J considered the applicants' arguments and the relevant legal framework. His Honour's reasoning focused on whether the grounds of appeal raised by the applicants demonstrated a reasonably arguable point of law that warranted the attention of the High Court. This involved an assessment of whether the Full Federal Court's decision was demonstrably wrong or whether it raised a question of law of public importance.

Ultimately, Hayne J determined that the applicants had not satisfied the threshold for granting leave to appeal. His Honour concluded that there was no reasonably arguable case of error on the part of the Full Federal Court, and therefore, leave to appeal was refused.

Orders