NAAT of 2002 & Anor v MIMIA

[2003] HCATrans 322

[2003] HCATrans 322

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S27 of 2003

B e t w e e n -

NAAT OF 2002 AND NABB OF 2002

Applicants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO CANBERRA

ON THURSDAY, 21 AUGUST 2003, AT 3.46 PM

Copyright in the High Court of Australia

NAAT OF 2002 appeared in person.

NABB OF 2002 appeared in person.

MR J.D. SMITH:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

KIRBY J:   Now, you are the applicants known as NAAT and NABB of 2002, is that the case?

NAAT OF 2002:   Yes, your Honour.

KIRBY J:   You understand that under the Migration Act we cannot refer to your name and that we mean no discourtesy to you by describing you in that peculiar fashion?  You realise that, do you not?

NAAT OF 2002:   Yes, your Honour.

KIRBY J:   We have read your written submissions and we have also read the written submissions for the Minister and so we understand what the nature of the case is and you now have 20 minutes to speak to the Court.  Have you and your wife decided how the matter will be presented?  Are you going to speak for both parties, or is your wife going to speak as well?

NAAT OF 2002:   Yes, both of us, your Honour.

KIRBY J:   You will speak for both, will you?

NAAT OF 2002:   No, your Honour, both of us going to present the case.

KIRBY J:   All right, very well.  You press ahead, but you only have 20 minutes between you.

NAAT OF 2002:   Yes, your Honour.  First I would like to ask for an adjournment, because I am the only person working now and we have a little one eight months old, so we cannot afford legal representation at the moment.  So if you can, your Honour, adjourn the case to another day.

KIRBY J:   Yes, did you give notice to Mr Smith of this application?  Did you give notice to the respondent that you were going to make this application today?

NAAT OF 2002:   I did ask Mr Grey at the High Court – I made a written request regarding that from the Registry, your Honour, so then Mr Matt Grey replied me that I should ask from you at the hearing.

KIRBY J:   Yes.  When did you indicate to Mr Grey that you were going to ask for an adjournment?

NAAT OF 2002:   I think – I am not sure, your Honour – about a couple of months back.

KIRBY J:   Yes.  We have the respondent here today and you appear to be able to communicate quite well.  You are a person who has held a responsible position.  I do not know what Mr Smith’s attitude is, but we will hear what he has to say to your application.  What do you say, Mr Smith, to the application for an adjournment by the applicants?

MR SMITH:   Your Honours, the application is opposed.  We have not had any notice of the application.

KIRBY J:   Yes.  I read in the application book that you are working cleaning hotels and doing various cleaning jobs.  How long do you think you would need to raise the money to pay for lawyers to appear for you in this Court?

NAAT OF 2002:   About six months, your Honour, that will do.

KIRBY J:   Have you asked the Bar Association or any other body for pro bono counsel to represent you in the High Court?

NAAT OF 2002:   Yes, I did ask from my previous barrister, Mr David Godwin, but he said he cannot, he has appealed twice, that he cannot go any further.  So he was the only person who was helping us before, your Honour.

KIRBY J:   I will just ask Mr Smith a question, if you do not mind.  Just sit down for a moment. 

NAAT OF 2002:   Thank you, your Honour.

KIRBY J:   Mr Smith, I can understand your position, but you will understand that from the point of view of the Court, it is not only a question of the applicants’ position, but it is also a question of the assistance to the Court that the Court gets if the applicant has somebody representing him.  Now, I appreciate that if we were to grant an adjournment, the position of the Minister could not really be entirely protected by an order that costs be paid because in the nature of the applicants’ position, they are not really in a position to, I would think, pay the costs of the Minister of today, given that they cannot even afford to pay their own costs. 

Can you point to any specific prejudice that is suffered by the Minister if the matter is stood over for the time that the applicants ask so that they can try to raise the money to get somebody to appear for them in this Court?  What is the prejudice that is suffered?

MR SMITH:   Nothing other than costs, your Honour.

KIRBY J:   Is there any suggestion that the applicants are any risk of any kind to the Australian community?

MR SMITH:   No, your Honour.

KIRBY J:   I did not gather that by reading the application book.

HAYNE J:   What is the availability of pro bono representation, Mr Smith?

MR SMITH:   I cannot say, your Honour.  There is a pro bono scheme run by the Bar Association, as well as a list being maintained by the Federal Court, of course, I suppose which is out of this Court’s hands for the moment.  But there are a number of barristers who do appear pro bono.

HAYNE J:   Yes, it is always the same group of good people who offer their time free, I understand that, and the Court is deeply indebted to them, but is there not amongst the New South Wales Bar somebody who is anxious to come along and appear in the Court on leave day?

MR SMITH:   I am sure there is, your Honour.  The difficulty we have at the moment is we do not know whether – or we do know that no attempt, apart from speaking to David Godwin, has been made by the applicants in this case.

KIRBY J:   Who is Mr Godwin?

MR SMITH:   Mr Godwin was counsel who appeared for the applicants below, both before the Federal Magistrate and before Justice Allsop.

KIRBY J:   Yes.  He may himself not have been paid or paid much and may think that he has done as much as is reasonable on a pro bono or quasi‑voluntary basis.  When were you informed of this application?

MR SMITH:   I heard it at the same time as the Court did, your Honour.

KIRBY J:   Mr Smith, what the Court is minded to do is not to give the applicants a six month adjournment because, although you do not raise the matter, a concern of mine, especially given the very long history of this matter, is that one way or the other it should be resolved without too much

further delay, one way or the other, in the interests of the applicants as well as of the community. 

What we would be minded to do, apart from making a formal order for costs, is to stand the matter over to a date to be fixed by the Registrar with a view to the applicants pursuing their opportunities of getting pro bono counsel and with a view to the matter being relisted before the end of the year, so that, either with the assistance of pro bono counsel or such counsel as the applicants can pay for, or on the papers as they have been filed in the Court, the Court will be in a position to deal with it as quickly as possible and before the end of the year.  Do you have anything to say in response to that?

MR SMITH:   No, your Honour.

KIRBY J:   Yes.  I speak now to the applicants.  Have you heard what I have said?

NAAT OF 2002:   Yes, your Honour.

KIRBY J:   We are not inclined to give you six months, but we are inclined to adjourn this matter to a date to be fixed.  You should make immediate application to the New South Wales Bar Association for pro bono counsel to represent you in this Court because that is not only a matter of protecting your own position, but it is a matter of assisting the Court to see whether there are some points in your case that argue for your being granted special leave. 

The matter will be relisted by the Registrar as soon as a slot in the special leave hearings can be found and that may well be within a matter two months or so.  Therefore, you should not assume that you have six months.  If, when the matter is relisted, you have not yet been able to afford to get counsel or you have not been able to get pro bono counsel, the matter will proceed on the next occasion without any further delay and, if necessary, on the papers.  Do you understand that?

NAAT OF 2002:   Yes, your Honour, thank you.

KIRBY J:   Yes.  Of course, you would be heard yourself if you turned up and if you have not been able to get counsel, but I think you should work on the basis that the matter will be relisted in about two months’ time.  You will be notified of that date and, in the meantime, you should go to the Bar Association or the Law Society and see if you can get pro bono legal assistance.  Do you understand everything I have said?

NAAT OF 2002:   I will do that.  Yes, your Honour.

KIRBY J:   Does your wife understand everything that I have said?

NAAT OF 2002:   Yes, your Honour, more than me.

KIRBY J:   The order of the Court is that the matter is adjourned to a date to be fixed by the Registrar and notified to the parties.  That date should be before the end of calendar year 2003, so far as possible on a day convenient to the parties.  The purpose of the adjournment is to allow the applicant to endeavour to obtain legal representation in the Court.  However, having regard to the circumstances of the application for adjournment, it is proper to order that the costs of today be the Minister’s costs in the application for special leave.

The Court will now adjourn until 10.15 am on Tuesday, 2 September 2003 in Canberra.

AT 3.59 PM THE MATTER WAS CONCLUDED