NAAL v MIMIA

[2004] HCATrans 221

[2004] HCATrans 221

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S397 of 2003

B e t w e e n -

NAAL

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 JUNE 2004, AT 11.25 AM

Copyright in the High Court of Australia

MR R.J. BROMWICH:   May it please the Court, I appear for the respondent.  (instructed by Clayton Utz) 

GUMMOW J:   Yes, Mr Bromwich.  Do you know if the applicant is appearing? 

MR BROMWICH:   So far as I was aware, he was appearing unrepresented, but I did not have the benefit of appearing in the courts below so I do not know what the man looks like, I am afraid. 

GUMMOW J:   He had better be called outside the Court. 

MR BROMWICH:   Thank you, your Honour. 

KIRBY J:   Is this the case where he gave a notice just before the hearing date some time this week to the effect that he is sick? 

MR BROMWICH:   I spoke to the Deputy Registrar of the Court and I understand not, but maybe I have been misinformed.  I think it was one of the ones later in the day.  My instructing solicitor says a medical certificate was provided.  I was not aware of that. 

KIRBY J:   We received a note from the Deputy Registrar indicating that a medical certificate was sent in, but, as often is the case, it said something about unfitness for work and it really is not pertinent to the matter which we have to consider.  We have had two approaches in the Court on this, assuming he is not present.  Maybe we should wait. 

COURT OFFICER:   No appearance, your Honour. 

GUMMOW J:   Yes, thank you, officer. 

KIRBY J:   One is the approach taken by Justice McHugh and myself, which is that we should stand the matter over with the warning that if there is no appearance on the next occasion it will be dealt with on the papers anyway.  The other is the decision of a Bench of harder heart, comprising the Chief Justice and myself, in which it was said that the Court would proceed and deal with it on the papers because it did not look a promising case anyway.  I agreed with both courses, because I am a very agreeable judge ‑ ‑ ‑

MR BROMWICH:   Your Honour, I urge your heart to beat more hardly today and follow the harder course that your Honour has adopted, because of the particular circumstance of this case.  It is in the nature of a template application.  It does not, in fact, bear any relation to the facts in the case.  This was not a Part B ‑ ‑ ‑

GUMMOW J:   Can you just illustrate why that is so? 

MR BROMWICH:   I can illustrate it in one very short form, your Honour ‑ ‑ ‑

KIRBY J:   Bear in mind you are appearing for the Minister, you are here with a solicitor, you are here with all the experience of your years, you are presenting a matter in the absence of a person who is claiming refugee status in this country. 

MR BROMWICH:   Yes, your Honour.  This is within a familiar range of cases whereby someone has applied for refugee status from Bangladesh prior to the change of government in Bangladesh, and then has been faced with the consequences of that change of government.  All of this was squarely raised.  This is brought before the Court principally as a Muin and Lie Case, and, although the Court does not have before it the original delegate’s decision, this was not a case in which there was even a listing of the Part B documents, as is referred to in the summary of argument for the applicant at page 47.  This form of summary of argument is one that has been used many times.  Virtually, the only change is that the name of the judge changes and little else, that is, the judge from whom the application has been brought. 

GUMMOW J:   This is a matter that came from the Federal Magistrate. 

MR BROMWICH:   Federal Magistrates Court, on to Justice Hely. 

GUMMOW J:   Sitting as a single judge, but exercising appellate power. 

MR BROMWICH:   Correct, yes.  This was not a case at all where there was any issue of resort to country information adversely to the applicant.  Quite to the contrary, the country information that was referred to by the Tribunal was country information used ultimately in support of the applicant’s contention that politics in Bangladesh were violent.  That comes at page 17 of the application book, just above line 25.  So the only sense in which country information was used was in a manner advantageous to the applicant.  The reason why the applicant failed was a pure finding of fact in relation to his own case and confined to his case.  It was very much a facts‑based decision.  So this is an unusually weak attempt to apply the Muin and Lie principles, because there simply was not anything other than ‑ ‑ ‑

GUMMOW J:   Well, Justice Hely points out the Muin deficiency, as it were, at page 38, paragraph 13. 

MR BROMWICH:   That is correct, your Honour.  There was simply no attempt to apply Muin and Lie, but had there been any attempt it could not have succeeded.  It just was not that sort of case. 

GUMMOW J:   So your submission is the application for adjournment should be refused on the footing that the substantive application has no prospects of success in any event? 

MR BROMWICH:   Yes, your Honour. 

GUMMOW J:   Yes, thank you. 

MR BROMWICH:   Thank you, your Honour. 

GUMMOW J:   The applicant did not appear when the special leave application was called this morning.  Earlier this week he sent to the Sydney Registry a medical certificate stating he was ill and, in effect, that he was unfit for work.  The Registrar drew the inadequacy of the certificate and, indeed, its irrelevancy to the adjournment of the hearing and did so by written communication.

We would not be persuaded to adjourn the hearing because, in our view, the application has no prospects of success.  Accordingly, the application for adjournment is refused and the special leave application is refused with costs.

We will adjourn to reconstitute.

AT 11.32 AM THE MATTER WAS CONCLUDED