MZYFH v Minister for Immigration and Citizenship

[2012] HCATrans 77

[2012] HCATrans 077

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M56 of 2011

B e t w e e n -

MZYFH

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for reinstatement

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 22 MARCH 2012, AT 9.30 AM

Copyright in the High Court of Australia

MS K.E. WHITTEMORE:   May it please the Court, I appear for the Minister.  (instructed by Sparke Helmore Lawyers)

HIS HONOUR:   There is a submitting appearance for the second respondent.  Now, I have a note from the Registrar telling me that yesterday she received a fax from the applicant indicating that he was ill and would be unable to attend.  To that memorandum there was attached a letter from the applicant saying, amongst other things, “I am very sick.  Unfortunately, because I am ill I will be unable to attend court on this date”.  I think it reads “Can you please help me and thank you very much”.  To that there is then attached a certificate, apparently from a doctor in Swan Hill, together with a letter of reference from a doctor, house medical officer at Swan Hill District Hospital, referring the plaintiff to a general surgeon for further investigations.

MS WHITTEMORE:   Yes, your Honour.

HIS HONOUR:   That is the state of play.  What do you say I should do with this thing?

MS WHITTEMORE:   Your Honour, to the extent that the applicant is seeking an adjournment of today’s proceedings, the Minister opposes that application.  The medical evidence provided, as your Honour will see, only indicates that he is unfit for work on 20 March.  Today we are at the 22 March.  The referral to a general surgeon does not indicate that he is unfit today and, in fact, it says:

His physical examination on 20/03 was unremarkable including no signs of acute abdomen.

In the circumstances, we would seek to have the matter dismissed for non‑attendance this morning.  I did have a telephone conversation with the applicant yesterday afternoon and indicated that we would be seeking to oppose any application for an adjournment and that he should seek to attend Court this morning or risk having his application dismissed with costs.  So he is on notice that that will be our submission this morning, your Honour. 

HIS HONOUR:   What concerns me about it, and it is simply a concern I raise for your consideration, is that in his last affidavit which is an affidavit of 16 January, he says, among other things, that the documents necessary for him to prosecute his application have been prepared.  I refer in particular to paragraph 43 of the affidavit which I read as saying that the documents have been prepared. 

My concern is, to put it bluntly, with the most efficient use of Court time.  If I dismiss the application today that does not bar a fresh application.  We then have a fresh application made and we are simply extending time.  A possible course which I raise for your consideration and submission is that if I were to reinstate the matter today in effect on terms that the applicant had a further period, perhaps of say 21 days, within which to file his papers in default of which the application would be deemed abandoned that may take account of the fact that he says he has done the papers.  It may enable a final determination by a Full Court of whether there is anything in this application.  As I say, I raise this for your consideration and submission, Ms Whittemore.  I well understand that your primary position is enough, stop.

MS WHITTEMORE:   Yes, your Honour.  In that respect, I guess, the issue is there is nothing to say that the application would not again be deemed abandoned and the applicant would again put on an application by way of summons that we have today.

HIS HONOUR:   By that time patience is beginning to wear ‑ ‑ ‑

MS WHITTEMORE:   Wear very thin.

HIS HONOUR:   ‑ ‑ ‑ a little thinner, shall we say.

MS WHITTEMORE:   Yes, your Honour.  This is the second time the applicant’s application has been deemed abandoned, your Honour.

HIS HONOUR:   I understand.

MS WHITTEMORE:   Your Honour has reinstated it on one previous occasion with the consent of the Minister.

HIS HONOUR:   Yes. 

MS WHITTEMORE:   Unless your Honour could perhaps make an order that if it is deemed abandoned for a third time that no further application would be accepted by the Registry I do not see that that would necessarily bring the matter to finality if the matter was reinstated today, given this applicant’s history.

HIS HONOUR:   Yes.  Unless orders are, generally speaking, perilous I think.  Well, is there anything else that I should take to account in determining what I should do in this thing?

MS WHITTEMORE:   Not that I think of, your Honour, except our submission is at present the application for special leave is completely unmeritorious. 

HIS HONOUR:   Is abandoned, yes.

MS WHITTEMORE:   Yes.  It is actually nonsensical in what it pleads.  So that might be a further consideration to dismiss the matter today.  But, other than that, your Honour, those are my submissions.

HIS HONOUR:   Yes, thank you, Ms Whittemore.

On 20 June 2011, the applicant filed an application for special leave to appeal to this Court.  In accordance with the rules that application was deemed abandoned upon the applicant failing to file the papers that were necessary.  On 29 August 2011, the Minister consented to the reinstatement of the application for special leave, but following that reinstatement the applicant did not file the necessary documents and again the application was deemed abandoned. 

On 16 January 2012, the applicant filed a summons seeking a second order for reinstatement of his application.  In support of the application for reinstatement the applicant filed an affidavit which deposed to matters which included the circumstances which he said had caused him to be in a position where he had been unable to file his written case and draft notice of appeal.  Among other things, the applicant swore in his affidavit of 16 January that he was not able to obtain assistance with the preparation of the necessary documents until 30 November 2011.  He says in that affidavit that the documents which would allow him to proceed with his application for special leave are now prepared and in his possession. 

The summons for reinstatement was fixed for hearing today.  Yesterday, the Registrar received, by fax, a letter from the applicant saying that he was “very sick” and that because he was ill he would be unable to attend Court today.  The applicant also submitted a medical certificate, apparently provided by a general practitioner, to the effect that he was unfit for work on 20 March. 

A further document also dated 20 March 2012 was provided which constituted a reference by a house medical officer at Swan Hill District Hospital of the applicant to a general surgeon for assessment to consider whether further investigations should be made of the medical conditions of which the applicant was then complaining.  As counsel for the Minister points out, the medical certificate which has been provided related only to 20 March 2012.  She informed me that there was telephone communication with the applicant yesterday in which the applicant was told that the Minister did not consent to any adjournment of his application and that the Minister would contend today that his application for reinstatement should be dismissed with costs and the matter brought to an end. 

It is indeed troubling that the application for special leave should have taken the course it has.  If deemed abandoned but then reinstated it would ordinarily be expected that the applicant would not delay a moment in filing the papers that the rules require in order to enable his application for special leave to be considered. 

There is, I think, much to be said for the view that this application for special leave should come to a head and be determined once and for all as soon as possible.  It has been pending since June last year and that is a time which is unduly prolonged.

I am, however, of the view that it would be desirable that there be one last opportunity given to the applicant for him to file the papers which he has sworn have been prepared in support of his application.  Accordingly, I would order that his application for special leave to appeal be reinstated.  I would direct that his written case and draft notice of appeal be filed on or before 4.00 pm on Thursday, 12 April. 

I consider that the better way of dealing with the costs of today, and of the application for reinstatement generally, is that those costs should be costs in the application with the consequence that, were the application for special leave to appeal to fail, the applicant would be liable to pay those costs without further order.

Accordingly, there will be orders:

1.That the application for special leave to appeal is reinstated.

2.That the applicant file and serve his written case and draft notice of appeal on or before 4.00 pm, Thursday, 12 April 2012.

3.The costs of today’s proceedings and the summons will be costs in the application.

Thank you, Ms Whittemore.

MS WHITTEMORE:   May it please the Court.

AT 9.45 AM THE MATTER WAS CONCLUDED