MZAAJ & Anor v Minister for Immigration and Border Protection & Anor

[2015] HCATrans 238

[2015] HCATrans 238

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M86 of 2015

B e t w e e n -

MZAAJ

First Applicant

MZAAK

Second Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 15 SEPTEMBER 2015, AT 9.30 AM

Copyright in the High Court of Australia

HER HONOUR:   On 3 June 2015, the applicants filed an application for special leave to appeal against orders of the Federal Court of Australia, comprising Justice Pagone, dismissing an appeal against orders made in the Federal Circuit Court of Australia.  The Federal Circuit Judge, Judge Riley, had relevantly dismissed the applicants’ application for review of a decision of the Refugee Review Tribunal which had affirmed a decision not to grant the applicants Protection (Class XA) visas.  The second applicant is the son of the first applicant.

As the applicants are unrepresented, rule 41.10.3(c) of the High Court Rules 2004 (“the Rules”) required the applicants to file a written case within 28 days of filing their application for special leave to appeal. They did not do so. Pursuant to rule 41.10.4.1, their failure to comply with rule 41.10.3(c) resulted in the application for special leave being deemed abandoned as of 1 July 2015. A Certificate of Deemed Abandonment was issued by the Court on 14 July 2015.

On 22 July 2015, the applicants filed a summons seeking reinstatement of their application for special leave to appeal.  The summons was supported by an affidavit sworn by the first applicant on 21 July 2015 in which the first applicant said he had been notified of the deemed abandonment of the application for special leave and then sought to explain why the applicants had not filed their written case.  The first respondent filed written submissions seeking to have the summons dismissed with costs and without an oral hearing. 

The discretion to extend the time for doing an act under the Rules is for the purpose of enabling the Court to do justice between the parties: see Gallo v Dawson (1990) 64 ALJR 458 at 459. The exercise of that discretion to reinstate an application that is deemed abandoned is informed by the length of, and any explanation for, the delay leading to the abandonment and by the current state of readiness of the application for substantive determination. It is also informed by the prospects of the application’s success. In particular, time will not be extended unless a proposed application has some prospect of success.

Against that background, it is convenient to consider the merits of the proposed application for special leave to appeal.  The applicants’ special leave application advances no arguable ground of appeal against the decision of Justice Pagone.  An appeal to this Court would enjoy no prospect of success. 

The first applicant’s explanation of why the applicants did not file their written case within the time specified by the Rules is less than satisfactory. Indeed, the applicants have still not filed a written case, or a draft notice of appeal. In all of these circumstances, reinstatement would be futile and will be refused. The summons should be dismissed with costs.

AT 9.33 AM THE MATTER WAS CONCLUDED