HB - Ex parte RRT & MIMA - [2001] HCATrans 137

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S63 of 2001

In the matter of -
An application for Writs of Prohibition and Mandamus against the REFUGEE REVIEW TRIBUNAL

First Respondent
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Second Respondent

Ex parte –
HB

Applicant

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 7 MAY 2001, AT 9.33 AM

MR B appeared in person.

MR M.J. LEEMING: May it please your Honour, I appear for the second respondent. I understand a submitting appearance has been filed for the first respondent. (instructed by Sparke Helmore)

HIS HONOUR: I have a letter from the Australian Government Solicitor informing me that the Refugee Review Tribunal will not seek to be heard in this application and will submit to any order made by the Court, except as to costs. Now, I think you have the assistance of a French interpreter; is that correct, Mr B?

THE INTERPRETER: Yes, your Honour. I am the French interpreter.

HIS HONOUR: Excellent. It is very nice to have you here. It is not often we hear the French language in our Court. The first thing to get clear is whether it is appropriate that we should name, Mr B. I think in the Full Federal Court they did not name him.

MR LEEMING: Yes.

HIS HONOUR: Just in case this matter goes on the Internet and I think there is no particular interest in the Australian community in knowing his name. It is the issue that is important. So would you like me just to identify you as B so that you are not named in the process by your name and it will, therefore, not become part of the Internet record, or are you content that your name be used?

THE INTERPRETER: Your Honour, Mr B would like to say something before we start the procedure.

HIS HONOUR: Yes, very well. Perhaps before we do this, as we do have an interpreter, perhaps we should swear you as the interpreter.

CELLA BARUCH, sworn to interpret:

HIS HONOUR: Perhaps we might also ask whether Mr B will take an oath or make an affirmation in respect of those matters of fact which he is going to put before us.

MR B (through Interpreter): I do not want to swear on the Koran.

HIS HONOUR: He does not want to. He will affirm? That is making a solemn promise that he will tell the truth.

MR B (through Interpreter): Yes.

HIS HONOUR: And this is only in relation to those matters of fact which you are going to place before the Court, upon which you are going to rely in your application.

MR B (through Interpreter): That is correct, yes.

MR B, affirmed:

HIS HONOUR: Could I have your full name, please, as the interpreter.

THE INTERPRETER: Cella Baruch, from Ethnic Affairs Community Relations. They change their…

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.

Continue reading HB - Ex parte RRT & MIMA

Details

AGLC: HB - Ex parte RRT & MIMA [2001] HCATrans 137
Case: [2001] HCATrans 137
Decision Date

CaseChat Overview and Summary

The case of *HB - Ex parte RRT & MIMA* concerned an application for an urgent interlocutory injunction brought by HB, the applicant, against RRT and MIMA, the respondents. The application was heard in chambers by Kirby J.

The central legal issue before the Court was whether HB had established a sufficient likelihood of success on the merits of its underlying claim to warrant the grant of an interlocutory injunction. This required the Court to consider the strength of HB's arguments in relation to the substantive legal issues that would ultimately need to be determined in the full proceedings.

Kirby J applied the well-established principles governing the grant of interlocutory injunctions, which require the applicant to demonstrate a serious question to be tried and that the balance of convenience favours the granting of the injunction. His Honour considered the evidence presented by both parties and the legal submissions made, weighing the potential harm to each party should the injunction be granted or refused. The Court's assessment focused on whether the applicant had shown a sufficiently arguable case to justify preserving the status quo pending a final determination of the dispute.

The application for an interlocutory injunction was dismissed.

Orders