NABY of 2001 v MIMIA

[2003] HCATrans 365

[2003] HCATrans 365

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S428 of 2002

B e t w e e n -

NABY OF 2001

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 SEPTEMBER 2003, AT 2.17 PM

Copyright in the High Court of Australia

NABY OF 2001 appeared in person.

MR S.B. LLOYD:   If the Court pleases, I appear for the Minister.  (instructed by Clayton Utz)

GUMMOW J:   Is there an interpreter in Court? 

ANIL WADHAWAN, affirmed as interpreter:

GUMMOW J:   What does the applicant want to say – and if you will translate it – in support of his application?  There is no more than 20 minutes allowed for oral address, if you can explain that.  Yes, did he understand that?

NABY OF 2001 (through interpreter):   Yes.

GUMMOW J:   Very well, proceed.

NABY OF 2001 (through interpreter):   I am thankful to the Court for giving me this opportunity to speak because prior to this no other court has allowed me to speak.  When I had lodged my application with Immigration I was even not allowed to have an interview and my application was straight away refused.

In the Tribunal the questions which were asked from me by the judge they had no relevance with my case.  When the Tribunal made their refusal the first thing they said was that I could go and stay somewhere else, whereas as for the warrants which were issued against me and if I am declared a…..I will be arrested as soon as I get there.  Secondly, in the decision it was said that as per the evidence with the Tribunal the Sikh community has no danger to their life if they go and live anywhere in the country, whereas nowhere in my claims I have said that being a Sikh I have danger to my life and that is why this evidence which was produced had no relevance with my case.

When I tried to tell them more about my claims at that time I was told to keep quiet.  I was told that I should only speak as much as I am asked for.  That is why I only replied to the questions which were asked from me.  They asked me questions on the geography of Punjab and they asked me how many crops are produced in a year and I said there are two.  They were not prepared to agree to that and said there are only one, whereas, in reality, there are two crops in that State and at times people also take three or four crops.

They did not understand my case at all.  My case starts from my village.  It is against a politician – a political party.  I vote against that party.  They tried to frame a number of cases against me and the people they favoured me and all those cases were discharged.  With the support of my people, there was a case lodged against my opponents and they were put into the gaol for 21 days.  That affected their political life, which became zero, and by misusing their power they started harassing me.  I had loss to my business, because those people had more power in the court.  That is why I could not get the justice.

I kept fighting my case for four years in…..Court,…..Court and in Chandigar Court.  They could not prove any case against me.  And, lastly, they tried to kill me, and I lodged a report in the police station for that.  They lodged a file against me in the Chandigar Police Station, and because of the harassment and the tension I started losing my eyesight.

I found out through my friends that due to their influence they are trying to send me to the gaol, because of which my – the whole career got spoilt.  Over here, now, in my life, I do not have any tension, as warrants are issued against me if I am to go back to India.  As the Tribunal has given a decision that I can go and live in another part of India, I am prepared to do that, but who is going to take responsibility for my life?

If the High Commission in New Delhi is prepared to write that situation is normal for me, then I am prepared to go back and go and live in any part of India.  I will lodge this application to the Court to say that there is danger to my life and if I go back over there and I am put into the gaol, or there is some threat to my life, then there should be some information coming back to the Court to say what has happened to me.

I just want to say what I am telling is true, or what the previous decision has been given against me whether that was true.  I would like to tell to the Court that I have told whatever has happened to me over here to my sister, Jyoti Bharati, that I could not get justice over there, in spite of doing everything right, and I was not a terrorist there.  They told me that I can make an appeal into the Federal Court.  I made an appeal to the Federal Court.  The hearing only went for 10 minutes.  They asked the opponent lawyer whether they want to speak anything.

The opponent lawyer told to Jyoti Bharati that, “You would be very happy that the case has prolonged.  Usually such a case gets dismissed within two months”.  I suppose such a thing should not be said in the court, because it is the court which decides upon the dates and that decision is also

made by the court.  Anyway, Mr Bharati could not put forward the case very well, and even in the Full Court it took a similar time.  I have first time seen in my life such a proceedings in a court.

Jyoti Bharati, he was insulted in the court for about eight minutes, to say why did he bring that case to the court, that there is no merit in this case.  He came because of the request from my community that this case only looks very simple by hearing, but I have been going through this for the last 14 years, but from Indian side there has been no proper decision on that.  I am describing to you what happened over here.

The Full Court had dismissed the case and they…..Mr Bharati and Mr Bharati was not normal for about 10 minutes after the court, and he has said that he will not bring any such community case into the court in future.  If such a case does not get to the High Court, how can a decision be expected of that case?  He has brought two cases to the court, lately.  One was Bangladeshi Court ‑ ‑ ‑

GUMMOW J:   Finish up what you have to say.

NABY OF 2001 (through interpreter):   I want to request to the Court that there is danger to my life and I do not want to go.  My mother has expired last month, and my business is totally finished, and due to warrants I will be arrested as soon as I get there.  I cannot go anywhere in India.

GUMMOW J:   Thank you.  We do not need to call on you at the moment, Mr Lloyd. 

Despite the unusual nature of the costs order made by the Federal Court there are no reasonable prospects of success of an appeal to this Court from the orders, including the costs order made by Justice Stone on appeal to the Federal Court from Federal Magistrate Raphael.  Accordingly, special leave is refused with costs. 

Now, your instructing solicitor might give some thought, Mr Lloyd, to the enforcement of this costs order that was made, but I do not think we can take it further than that at the moment.  Special leave is refused with costs.  I should thank you, Mr Interpreter, for your assistance.

AT 2.39 PM THE MATTER WAS CONCLUDED