MZXBQ v MIAC & Anor

[2008] HCATrans 276

[2008] HCATrans 276

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M28 of 2008

B e t w e e n -

MZXBQ

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 1 AUGUST 2008, AT 3.20 PM

Copyright in the High Court of Australia

MZXBQ appeared in person.

MR W.S. MOSLEY:   May it please the Court, I appear on behalf of the first respondent.  (instructed by Australian Government Solicitor)

HAYNE J:   There is a submitting appearance on behalf of the second respondent, is that right?

MR MOSLEY:   Yes, your Honour.

HAYNE J:   Mr Mosley, do you understand whether the applicant is present in Court or not?  I understand there may be someone who wishes to speak on his behalf.

MR MOSLEY:   I have not spoken to anyone, I am sorry, your Honour.  This gentleman here is perhaps the applicant.  I am not sure.

HAYNE J:   I understand the applicant is in Court and that there is present also – forgive me if I mispronounce the name – Mr Kleynhans.  Is that right, Mr Kleynhans?

MR KLEYNHANS:   Yes.

HAYNE J:   Would you be so kind as to come to the microphone.  I have before me a memorandum reporting that you have provided a report which the applicant in this matter would wish to be considered by us and that you have come to Court to assist in at least some respects the applicant.  Is that right?

MR KLEYNHANS:   That is correct, your Honour.

HAYNE J:   Mr Mosley, have you seen the report of Mr Kleynhans?

MR MOSLEY:   Yes, we have, your Honour.

HAYNE J:   Understanding that report as saying that the applicant is unable to give proper instructions concerning this matter, Mr Mosley, what do you say this Court should do in the face of the possession of that report?

MR MOSLEY:   Your Honour, I got a copy of the report this morning and it would appear that the diagnosis by the psychiatrist was of chronic post‑traumatic stress disorder, because of trauma in Sri Lanka is what the report refers to, the psychiatrist having found earlier in respect of the applicant.  But the Tribunal, as the Court would have noticed, has specifically and unequivocally rejected the applicant’s claims to have suffered such trauma.

Basically, the report refers to depressed mood and anxiety disorder and that the applicant is incapable of giving proper instructions to his legal team re the matter.  I would submit in respect of that there is no legal team.  The applicant filed a notice of intention to act in person on 25 July and has not engaged ‑ ‑ ‑

HAYNE J:   But if he is not in a position to give a proper account of himself to his lawyers, what should this Court do when, as things presently stand, he is unrepresented and would appear for himself?  Can I be quite blunt about it.  If he cannot instruct his lawyers, how can he advocate his case in this Court in person?

MR MOSLEY:   I can only submit in respect of that, your Honour, that the application for special leave involves issues about which, in my respectful submission, the applicant would be unlikely to be able to contribute anything further to what has been filed in written submissions in this Court which were drawn by experienced counsel in the area.  Whatever might be said about the first argument that we raise based on SZBYR, the High Court decision, the second argument, with respect, which relies on section 424A(3)(b), that the material or the information so‑called, and whatever might be said about the first argument, no arguments were advanced by the applicant in respect of that second issue which Justice Heerey referred to in the penultimate paragraph of his decision in which he said, “Turning to the Minister’s alternative argument based on ‑ ‑ ‑

HAYNE J:   I understand the Minister would wish to say that the application should fail and that the Minister may have a lot of arguments that the Minister wishes to advance to that effect, but the litigation is adversarial litigation.  We have a party in respect of whom it is said this man cannot give a sufficient or is not capable of giving proper instructions.  What do you say we should do?  In particular, why should we not stand the matter out of the list, invite the retainer of pro bono counsel when it will be a matter for his counsel to determine whether that counsel considers, having regard to whatever medical and psychological advice or assistance is available, that counsel can accept the instructions which the applicant would wish to give.

MR MOSLEY:   Yes.  Look, your Honour, we are in the Court’s hands, of course, with respect to that.

HAYNE J:   No, Mr Mosley.  I do not want to embarrass you and I do not want to put you on the spot, but the Minister is confronted with obviously an unusual set of circumstances.  Yes, ultimately it is our decision what we do about it, but it would not be unknown for a government respondent to recognise that if the opposite party is unable to give instructions, something

has to be done so that there can be fair disposition.  What do you say we should do?

MR MOSLEY:   In light of what has fallen from your Honour, it would be appropriate that the matter be put off then to perhaps the next special leave day, whenever that might be.

HAYNE J:   What we are minded to do is to stand this matter out of the list generally with liberty to restore the matter to the list on 14 days notice in writing to opposite parties.  We would invite – not direct but invite – the making of inquiries about retainer of pro bono counsel on behalf of the applicant.  What future course is then taken will be a matter for counsel to consider including, of course, whether counsel feels able to accept instructions having regard to whatever is then shown to be the medical and psychological position of the applicant whom he or she is invited to represent.  It would be appropriate perhaps to make the costs of today costs in the leave application, Mr Mosley.  Would that be appropriate?

MR MOSLEY:   Yes, your Honour.

HAYNE J:   If we make orders in those terms, do you seek to be heard against them?

MR MOSLEY:   No, your Honour.

HAYNE J:   Mr Kleynhans, as you, I think, may sufficiently understand, what we have done is said we will not proceed with the matter today.  Either side can, on 14 days notice in writing to the other, get this case back into the list of cases waiting for hearing.  What day it would come on will depend upon when it can be accommodated in appropriate lists for hearing.  We have invited the making of inquiries about retaining counsel to act for this gentleman without fee.  Whether counsel feel that he or she can act will, of course, depend upon the state of affairs as they stand at that time.  Is there anything further that I should explain to you so that you may explain to the applicant what has happened today?

MR KLEYNHANS:   No.  I think it is quite clear, your Honour.

HAYNE J:   Very well.  There will be orders and directions in those terms.

The Court will adjourn to 10.15 am on Tuesday, 5 August 2008 in Canberra.

AT 3.30 PM THE MATTER WAS CONCLUDED