MZNAX v MIMIA

[2005] HCATrans 760

[2005] HCATrans 760

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M165 of 2004

B e t w e e n -

MZNAX

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 SEPTEMBER 2005, AT 1.00 PM

Copyright in the High Court of Australia

MR D.K.K. CHEUNG:   If the honourable Court pleases, I appear on behalf of the applicant.  (instructed by the applicant)

MR C.J. HORAN:   If it please the Court, I appear for the respondent.   (instructed by Australian Government Solicitor)

HAYNE J:   Mr Horan, before you sit down, may I understand something about the facts of this case?  Is there any dispute that the failure to commence proceedings within time was occasioned in the way described in the application book?

MR HORAN:   No, your Honour.  The explanation advanced by the applicant was accepted by the Tribunal.

HAYNE J:   Does it follow that the position in which the applicant finds himself is a position which is brought about through no fault of his?

MR HORAN:   In the sense that the ‑ ‑ ‑

HAYNE J:   In any sense, Mr Horan, in any sense.

CALLINAN J:   It was extraordinary conjunction of very unfortunate events ‑ ‑ ‑

MR HORAN:   It is, your Honour.

CALLINAN J:   ‑ ‑ ‑ which were not of the applicant’s making.  Speaking for myself, I really cannot understand why the Minister would not give the applicant another opportunity.

MR HORAN:   Yes, there is a provision in the Act which would allow an applicant to apply for the exercise of a personal discretion of the Minister to allow a fresh application to be made for a visa.

HAYNE J:   Often enough those personal discretions are met with the answer, “I will do nothing until Court proceedings are at an end.”

MR HORAN:   In some cases, yes, your Honour.

HAYNE J:   Yes.  Well, what are we going to do, Mr Horan?

CALLINAN J:   Have you obtained any specific instructions?  I must say that it seems to be a rather hard and unnecessarily harsh attitude to adopt to insist that this matter go ahead now without at least some consideration being given to the possibility of an application and an opportunity for it to

be considered in the appropriate way for the reason his Honour the presiding Judge said. 

MR HORAN:   Yes, your Honour.

CALLINAN J:   We do not know the fate of these things afterwards.

HAYNE J:   It occurred to me at least that it may be a matter in which a better course would be simply to adjourn this application for leave out of the list.

MR HORAN:   Yes, to allow the applicant an opportunity to make ‑ ‑ ‑

HAYNE J:   No, to allow the respondent to consider the position that the respondent is in, Mr Horan, as well as for the applicant to consider what course he may take.

MR HORAN:   Yes, your Honour.

HAYNE J:   But also for the respondent to consider what course she would take.

MR HORAN:   Yes, your Honour.

HAYNE J:   Yes.  Now, Mr Cheung, you have heard what has passed between us.

MR CHEUNG:   Yes, I have certainly heard, your Honour.

HAYNE J:   Our present inclination is simply to adjourn your application out of the list to see what happens next.  You have heard what Mr Horan has said about making application for particular dispensation to make a fresh application.  You have heard what we have said to Mr Horan, which no doubt will be conveyed to those who instruct him.  Do you wish to be heard against our adjourning the matter out of the list?

MR CHEUNG:   Not really, your Honour.

HAYNE J:   Yes.  Mr Horan, is there anything further you would wish to add?

MR HORAN:   No, your Honour.

HAYNE J:   Then simply if we adjourn the matter out of the list reserving costs.

We will adjourn the Court.

AT 1.04 PM THE MATTER WAS ADJOURNED