Gomez-Rios, Ex parte MIMA

[2001] HCATrans 45

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S24 of 2001

In the matter of –

An application for a Writ of Prohibition, Writ of Certiorari and Injunction against THE HON PHILIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

DR PETER NYGH, PRESIDENT OF THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte –

ALFREDO GOMEZ-RIOS

Applicant

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 22 FEBRUARY 2001 AT 10.06 AM

Copyright in the High Court of Australia

MR ALFREDO GOMEZ-RIOS appeared in person.

MR S.B. LLOYD:   I appear for the first respondent, your Honour.  (instructed by the Australian Government Solicitor)

HER HONOUR:   Would the interpreter come forward, please.

ESTHER OLIVARES, sworn as interpreter:

HER HONOUR:   Thank you.  Mr Gomez‑Rios, who appears for you?

THE INTERPRETER:   Ramon Reyes.

HER HONOUR:   Ramon Reyes.  Is that objected to, Mr Lloyd?

MR LLOYD:   No.  I let the Court know he is not legally qualified, but it is a matter for the Court.

HER HONOUR:   Yes, thank you.  Would you come forward, please, Mr Ramon.  Who is this gentleman?

THE INTERPRETER:   He is the brother of Mr Alfredo Gomez‑Rios.

HER HONOUR:   Thank you.  Mr Ramon Reyes, you may speak to this application as you wish and otherwise present it as it suits you.

MR R. REYES-GONZALEZ:   Yes.  To begin with, your Honour, because Mr Gomez‑Rios suffer from mental illness or disability, then his brother has been appointed as next friend.  I do not know if there is any formal procedure to ‑ ‑ ‑

HER HONOUR:   No, that has been noted previously, in previous proceedings.

MR REYES-GONZALEZ:   Okay.  Now, I would like to supply a copy of this, your Honour, to hand it to you.

HER HONOUR:   Yes.  Do you have a copy for Mr Lloyd?

MR REYES-GONZALEZ:   Yes.

HER HONOUR:   Yes.

MR LLOYD:   I am instructed, your Honour - I mean, I do not know if your Honour wants to deal with it - but it was a different next friend on a previous occasion, so I do not know if your Honour wants to do anything to formalise that.

HER HONOUR:   Yes.  Mr Ramon, you are now the next friend, are you?

MR REYES-GONZALEZ:   No, him.

HER HONOUR:   Him?

MR REYES-GONZALEZ:   Yes.

HER HONOUR:   Him, yes, okay, thank you.  But they have asked you to speak for them?

MR REYES-GONZALEZ:   Yes.

HER HONOUR:   Yes, thank you.  Yes.  Now, I have these.

MR REYES-GONZALEZ:   Well, in the first instance, according to the further submission in response to the respondent’s submission on page 2, paragraph 9 ‑ ‑ ‑

HER HONOUR:   Yes.

MR REYES-GONZALEZ:   ‑ ‑ ‑ there I am presenting two objections about these proceedings.  The first is that according to the order nisi presented before this Court, in the order nisi on page 3, paragraph 1, in part of that paragraph says:

A copy of this Draft Order Nisi and all affidavits and exhibits thereto be served within seven (7) days of the date ‑

of this application.  And paragraph 2 says:

That the respondents have leave to file and serve any affidavits upon which they may wish to rely within twenty eight (28) days of the date thereof.  That the Applicant have leave to file and serve any answering affidavits on which he may wish to rely within fourteen (14) days of the serving and filing of any affidavits by the Respondents.

The application was lodged on 16 January 2001.  Summing up seven days, plus 28, plus 14 days, we have 49 days in total.  Therefore, an appropriate day for this hearing would be on or after 6 March 2001.  Why are we objecting this one is because the second respondent - second, the respondents served an affidavit to the applicant on or after 20 February 2001.  Therefore, the applicant is in disadvantage in the conduct of this hearing because the applicant had no opportunity to answer the issues raised on that affidavit presented by the respondents.  Therefore, the ‑ ‑ ‑

HER HONOUR:   Well, you had 14 days within which to file any affidavits.

MR REYES-GONZALEZ:   In response to the ‑ ‑ ‑

HER HONOUR:   Yes.

MR REYES-GONZALEZ:   Yes.

HER HONOUR:   When was the affidavit filed?

MR REYES-GONZALEZ:   No, the order nisi ‑ ‑ ‑

HER HONOUR:   When was the respondents - did the respondent file an affidavit ‑ ‑ ‑

MR REYES-GONZALEZ:   Yesterday.

HER HONOUR:   ‑ ‑ ‑ on 19 February?  Yes.

MR REYES-GONZALEZ:   Yes.

HER HONOUR:   And you have 14 days.

MR REYES-GONZALEZ:   Fourteen days.

HER HONOUR:   Do you have affidavit material you wish to file?

MR REYES-GONZALEZ:   Well, this is the copy I have gave to you this ‑ ‑ ‑

HER HONOUR:   No.  You have given me today ‑ ‑ ‑

MR REYES-GONZALEZ:   Further submission in response.

HER HONOUR:   You have given me today an outline of submissions – no, sorry, further submissions.

MR REYES-GONZALEZ:   Yes.

HER HONOUR:   Yes.  Now, did you wish to file affidavits?

MR REYES-GONZALEZ:   The affidavit was lodged together with the order nisi on 16 January.

HER HONOUR:   Yes, but did you wish to file further affidavits?

MR REYES-GONZALEZ:   No, just this further ‑ ‑ ‑

HER HONOUR:   But are you saying that the matter should be adjourned until 6 March?

MR REYES-GONZALEZ:   Well, if there is any problem in accepting this document, yes.

HER HONOUR:   No, there is no problem in accepting that.

MR REYES-GONZALEZ:   Yes, okay.

HER HONOUR:   Thank you.

MR REYES-GONZALEZ: Well, commencing with this further submission practically will be the main points to discuss in this matter. In this submission it says that - the first paragraph, that the application should be granted in the discretion of the Court. The current application is not challenging previous decisions under the definition of “refugee status” of the United Nations Convention for Refugees as well of decision made by the Minister pursuant to section 417 of the Migration Act.

HER HONOUR:   But the trouble here is, is it not, what do you say the Minister is proposing to do that is beyond his power?

MR REYES-GONZALEZ:   No.  No.  The respondent ‑ ‑ ‑

HER HONOUR:   You see you seek prohibition.  This Court can only issue prohibition to stop an officer of the Commonwealth acting beyond his power.

MR REYES-GONZALEZ:   Well, I am sorry, I do not understand. What are you saying?

HER HONOUR:   Well, prohibition is not simply a discretionary remedy.  Prohibition can only issue to restrain somebody acting in excess of their power.

MR REYES-GONZALEZ:   Well, the application is in some way asking the Court to grant an interlocutory injunction.

HER HONOUR:   Yes, but, again, I can only do that if you tell me somebody is acting in excess of power.

MR REYES-GONZALEZ:   Well, this person has lodged a complaint before the Human Rights Commission.

HER HONOUR:   Yes.

MR REYES-GONZALEZ:   Okay, and the complaint is in regard to some of his identity - or his identity has been practically exposed through Internet.  In previous - in the previous application that the applicant made before the High Court his legal adviser explained in detail all the procedures and declarations that he made before the RRT, the Refugee Review Tribunal.  Then after that hearing all the details and personal identity was practically exposed through the Internet.  Now his fear is that if he return to Bolivia he will have ‑ his life is at risk.

HER HONOUR:   Yes, but how does this Court have power to deal with that, or, more precisely, what is it about that that suggests that the Minister will act beyond his powers?

MR REYES-GONZALEZ:   Well, I think that this is complicated situation because the breach of the - the breach has happened under the International Covenant on Civil and Political Rights and according to this covenant an authority who make any breach to that international treaty is in breach of human rights of the applicant, practically this - the High Court being part of the ‑ ‑ ‑

HER HONOUR:   No.  The High Court applies the law of Australia and international conventions are only applied by this Court to the extent that they have become part of Australian law by Act of Parliament.  So you have to find some Australian law which you say limits the Minister’s powers.

MR REYES-GONZALEZ:   Well, I say that I cannot answer the question because practically we are in very hard problem over here because - maybe because I am not a qualified person as a lawyer then practically the applicant is in disadvantage in presenting his case in the proper way.  Now, the only thing that I know is that a breach has happened and it is covered by the International Covenant for Civil and Political Rights and that one is under the jurisdiction of the Human Rights Commission in Australia according to the Human Rights and Equal Opportunity Commission Act 1986. Under that Act is in some way - this international treaty have been practically under the domestic law of Australia. This is what I understand.

HER HONOUR:   Yes, but what law limits the Minister’s powers?  You see, you say you are not attacking the decision of the Tribunal.

MR REYES-GONZALEZ:   No.

HER HONOUR:   And yet you seek from me, or from this Court, an order preventing the Minister from acting on or giving effect to that decision.  That is the order you seek.

MR REYES-GONZALEZ:   Yes.

HER HONOUR:   And I am asking you what law, what Australian law, prevents the Minister from acting on that decision.

MR REYES-GONZALEZ:   Well, this is because there is a complaint before the Human Rights Commission ‑ ‑ ‑

HER HONOUR:   Yes.  Where is the law that says that the fact that there is a complaint prevents the Minister from acting on a decision?

MR REYES-GONZALEZ:   Well, because the applicant made an application for refugee status in Australia.

HER HONOUR:   Yes.

MR REYES-GONZALEZ:   Okay.  According to the Migration Act 1958, this person was obligated to make some self‑incriminatory statement and because that is law he is now affected and this person practically in bona fide declaration that he made before the Refugee Review Tribunal is practically in some high risk if he go back to Bolivia.

HER HONOUR:   Yes.  I am sorry, I have forgotten your name.  Mr Ramon ‑ ‑ ‑

MR REYES-GONZALEZ:   Reyes-Gonzalez.

HER HONOUR:   Ramon Reyes, is it?

MR REYES-GONZALEZ:   Ramon, Ramon.

HER HONOUR:   Mr Ramon, is it?  I do not think that is a matter that I – well, I am sure it is not a matter that I can do anything about and the matters you have raised in your application would not entitle me to make orders as sought, but they are matters which might well be drawn to the attention of the Minister and perhaps I could ask Mr Lloyd if they have been drawn to the attention of the Minister or his delegate.

MR LLOYD:   The purpose of the affidavit – perhaps because one never knows exactly where this will end, I might formally read the affidavit so it will be on the Court record – of Mr Andras Markus, affirmed on 19 February 2001 ‑ ‑ ‑

HER HONOUR:   Yes, but is that necessary for the moment?

MR LLOYD: It is not necessary for the moment. I just thought it would be convenient to put it on, but the reason why I refer to it is because all it does is annex the application under section 417 made by the applicant/prosecutor to the Minister. He does not in that application, notwithstanding what he says in his affidavit, refer at all to the transcript issues, so it has never formally been put to the Minister other than in these proceedings.

HER HONOUR:   That is what I was afraid of.  Look, I do not know the merits of it but this seems to be a matter that has developed since the matter was last in this Court.

MR LLOYD:   Precisely, by definition on ‑ ‑ ‑

HER HONOUR:   And has the Minister or his delegate also been made aware of the psychological report?

MR LLOYD:   Yes, because that was provided on the last occasion and that is the subject of the last application.

HER HONOUR:   Yes.

MR LLOYD:   I mean, it remains available to the applicant to make a further application for refugee status alleging there has been a change of circumstances.

HER HONOUR:   Well, I am not sure that that is right, is it?

MR LLOYD:   It is available for him to apply.  He needs the consent of the Minister under section 48B before it can be accepted, and that is really the position he is in at the moment.

HER HONOUR:   Yes.  Mr Ramon - yes.

MR LLOYD:   I am instructed he needs first to get the permission under 48B before the application can be officially made.

HER HONOUR:   Yes, that is what I thought.

MR LLOYD:   But that is what the Act provides.

HER HONOUR:   Now, is there some body to whom I can refer this gentleman for assistance and advice in making such an application?  I mean, I know – does anybody know of such a body?

MR LLOYD:   Any migration agent would be ‑ ‑ ‑

HER HONOUR:   Well, this man has been unrepresented all along.

MR LLOYD:   He was represented on the last occasion by counsel.

HER HONOUR:   Prima facie at least that looked as though it was a pro bono matter.

MR LLOYD:   It may well have been.

HER HONOUR:   Well, you know of no body that could assist him, no voluntary association, or could ‑ ‑ ‑

MR LLOYD:   My instructing solicitor says he has a list of agencies who are voluntary agencies, but whether they assist on any particular occasion is a matter for them.  It is not like ‑ ‑ ‑

HER HONOUR:   Well, Mr Lloyd, I propose to dismiss this application but I dismiss it with a request that the particular circumstances be drawn to the notice of your client, or the particular matters raised be drawn to the attention of your client, and in the meantime I can only urge Mr Reyes to seek permission to make a further application for refugee status on the basis of what has been said.  Thank you, Mr Lloyd.  Now, Mr Reyes, do you understand what I have been saying to Mr Lloyd?

MR REYES-GONZALEZ:   Well, technically, no.

HER HONOUR:   Well, technically I cannot grant the order you seek.  Mr Gomez‑Rios is in a position where all that he can now do is seek permission of the Minister to make a further application to be treated as a refugee on the basis of what happened in this Court on the last occasion.  Do you understand that?

MR REYES-GONZALEZ:   Yes, I do.

HER HONOUR:   Now, Mr Lloyd has given an undertaking to ensure that his client is informed of what happened in this Court on the last occasion.  Do you understand that?

MR REYES-GONZALEZ:   Yes.

HER HONOUR:   Now, all I can do for you today is urge you to get some advice about making an application to the Minister for permission to make a further application to be accepted as a refugee.  Now, do you follow that?

MR REYES-GONZALEZ:   Yes, I do, your Honour.

HER HONOUR:   Now, Mr Lloyd’s solicitor – I think that is Mr Markus, is it ‑ ‑ ‑

MR LLOYD:   Yes, your Honour.

HER HONOUR:   ‑ ‑ ‑ has a list of voluntary associations who may provide assistance.  He will give that list to you.  Apart from that, I do not know if it is possible to approach an immigration agent or a solicitor who is an immigration agent who may be able to make the application for you – I do not know – but I take it you are familiar with the services of such people?

MR REYES-GONZALEZ:   Well, who acts on a voluntary scheme, I do not know anyone but ‑ sorry.

HER HONOUR:   That is all right.

MR REYES-GONZALEZ:   Well, unfortunately, I do not know of any – or I have not heard about any organisation doing any voluntary representation on that matter.

HER HONOUR:   Well, I think Mr Markus will be able to give you a list but you will have to contact them.  Alternatively, is Mr Gomez‑Rios, the next friend Mr Gomez‑Rios, in the position to instruct a lawyer to ‑ ‑ ‑

MR ABEL GOMEZ-RIOS:   Well, I come just as representing his friend, but I am his brother.

HER HONOUR:   Yes.  No, but my question was:  are you in a position to approach a lawyer?

MR ABEL GOMEZ-RIOS:   No, I am not, your Honour.  No.

THE INTERPRETER:   He say I am not - I am not prepared to help him with money to pay a solicitor because I have already helped him before, so I do not have the money really to pay for a solicitor.  I spend about $10,000 with the barrister.  He does not work and I am helping him just because I am his brother, because he is the only one that, you know, is from Bolivia.  I have only one brother.

HER HONOUR:   Yes.  Well, Mr Ramon Reyes, all I can do is urge you to contact the people on the list that Mr Markus will give you and perhaps take the transcript of today’s proceedings to them.  The transcript will be made available to you without charge.

MR REYES-GONZALEZ:   Thank you.

HER HONOUR:   And if you take it and copies of the documents in this case to those voluntary associations, they may be able to help, but otherwise I must dismiss the application for prerogative relief.  I would not propose to make any order as to costs, unless you press that on me?

MR REYES-GONZALEZ:   Well, may I ‑ ‑ ‑

MR LLOYD:   Yes, I am just instructed we do not have instructions not to seek costs but I do not need to address your Honour ‑ ‑ ‑

HER HONOUR:   No.  Well, I would not propose to order costs.  These are matters that are often done ex parte and, that being so - had that been the case, there would be no order as to costs, yes.  Yes, Mr Ramon Reyes, I think that concludes the matter unless you have some difficulty in understanding what I said.

MR REYES-GONZALEZ:   Well, really I do not know what to do because he is practically facing to be detained by Immigration Department.

HER HONOUR:   Well, that is why you must approach the voluntary associations very quickly that Mr Markus will give you the name of with the transcript from today.

MR REYES-GONZALEZ:   Yes, I understand that, but if he make any further application under section 48B, that will be a second application or one more application to the Minister and according to the policy, internal policy, and guideline of the Department of Immigration practically they will detain this person and will face deportation.

HER HONOUR:   Well, at the moment Mr Lloyd is going to tell them what I have said and the application would be made by reference to the disclosures that happened as a result of proceedings in this Court, so there would be changed circumstance.

MR REYES-GONZALEZ:   Okay, thank you, your Honour.

HER HONOUR:   Yes.

MR REYES-GONZALEZ:   Okay, thank you.

HER HONOUR:   The Court will ‑ ‑ ‑

MR ABEL GOMEZ-RIOS:   Excuse me, can I say something, please?

THE INTERPRETER:   Could I say something, he said.  I am his brother.  I live here for 20 years.  He cannot do anything in Bolivia or Argentina because he is not well mentally.  He cannot work.  He cannot get a job.  I am helping him.  I would like that he will be helped as in – if he cannot stay here as a refugee, he could stay here as a family reunion.

HER HONOUR:   That is quite beyond me.  They are matters to be taken up with the Minister or the Department.  I can only act on the basis of the law and that is quite beyond my power, I am sorry.

MR ABEL GOMEZ-RIOS:   Yes, it has been hard for me ‑ ‑ ‑

HER HONOUR:   Yes, but Mr Markus will give you a list of associations who may be able to give you some advice about these things.

MR ABEL GOMEZ-RIOS:   He never pay anything to the government, tax or nothing, you know.  I helping him.

HER HONOUR:   I am sorry, I cannot do anything about that.  All I can do is urge you to go with Mr Ramon Reyes to these voluntary organisations to see if they can give you some help and advice.

MR ABEL GOMEZ-RIOS:   All right.  Okay, thanks very much.

HER HONOUR:   Thank you.

AT 10.38 AM THE MATTER WAS CONCLUDED