NACJ of 2001 v MIMIA

[2003] HCATrans 321

[2003] HCATrans 321

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S20 of 2003

B e t w e e n -

NACJ of 2001

Applicant

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 3.40 PM

Copyright in the High Court of Australia

MR S.B. LLOYD:   May it please the Court, I appear for the respondent.  As far as I am aware, there is no appearance for the applicant in this matter.  (instructed by Australian Government Solicitor)

KIRBY J:   Call the applicant outside the Court in Sydney.  Justice Hayne has drawn attention to the fact that he is named in our process as NACJ of 2001.  He should be called by that name, but discreet inquiries should be made outside the Court by his given name to see if he is there.

THE DEPUTY REGISTRAR:   No appearance, your Honour.

KIRBY J:   Whilst you were outside calling the applicant, I indicated that in addition to calling him by the name in the process, Mr Registrar, you should make inquiries in the precincts of the Court by the given name of the applicant which is in the record and to see whether or not he is in the precincts of the Court by his given name.  Would you do that please.

THE DEPUTY REGISTRAR:   Very well, your Honour.

KIRBY J:   Is there any appearance?

THE DEPUTY REGISTRAR:   No appearance, your Honour.

KIRBY J:   Very well, thank you.  The name of the applicant will not be recorded out of deference to the provisions of the Migration Act which so provide.  Is this the case, Mr Lloyd, where the applicant once before did not appear?

MR LLOYD:   That is so, your Honour.  The position was he did not appear before Justice Lindgren.

KIRBY J:   That is right.

MR LLOYD:   He appealed from that decision to the Full Court and the Full Court adjourned its hearing and he made an application to set aside Justice Lindgren’s judgment.  That application was unsuccessful.  An appeal was then heard by the Full Court.

KIRBY J:   Yes, we know the detail, but I was just trying to make it clear that this was the case in which the applicant had not turned up once before.

MR LLOYD:   That is so, your Honour.

KIRBY J:   Has the Minister any knowledge of the position of the applicant or of any illness on his part or any reason why he should not be here today?

MR LLOYD:   I am instructed we have no relevant knowledge, your Honour.

KIRBY J:   I think we made arrangements for an interpreter in Bengali to be present at the Court today.  Is that correct, is that your understanding?

MR LLOYD:   That is so, and there is an interpreter here, your Honour.

KIRBY J:   Yes.  What is your name, Mr Interpreter?

THE INTERPRETER:   My name is Iqbal Chowdhury.

KIRBY J:   You have attended at the request of the applicant and by arrangement with the Registry, is that so?

THE INTERPRETER:   Yes, your Honour.

KIRBY J:   Very well.  Have you seen the applicant in the precincts of the Court yourself or not?

THE INTERPRETER:   No, I have not, your Honour.

KIRBY J:   No.  No one has approached you whilst you have been there in the Court in Sydney – no one has approached you?

THE INTERPRETER:   No, no.

KIRBY J:   No Bengali-speaking person has come to you?

THE INTERPRETER:   No, no.

KIRBY J:   Very well.  Thank you for coming today.  You are excused.

THE INTERPRETER:   May it please the Court.

KIRBY J:   When these proceedings were called this afternoon, the applicant did not appear.  By the process number which he has been assigned the applicant was called outside the Court; so was the applicant’s given name.  There was no appearance.  The applicant was aware of the listing of the proceedings today.  Arrangements had been made by the Court for the presence of an interpreter to assist the applicant to make his submissions.  Notwithstanding this, the applicant has not appeared.

The application has a long history.  The Minister’s delegate rejected the applicant’s claim for refugee status in February 1999.  The Refugee Review Tribunal dismissed an application for review in October 2001, rejecting the applicant’s claim and describing him as a “grossly unreliable witness”.  The applicant then applied to the Federal Court for judicial review.  However, he failed to attend a hearing before Justice Lindgren on 3 April 2002.  Justice Lindgren thereupon dismissed the application.  Later, the applicant claimed that he had been sick that day but produced no evidence in support.

An application before Justice Stone in the Federal Court to reopen the dismissal failed for want of grounds or evidence in support.  That decision was not the subject of appeal or application for leave to appeal.  Instead, the applicant appealed to the Full Court of the Federal Court, apparently to challenge the dismissal order made by Justice Lindgren.  Unsurprisingly, on 30 October 2002 the Full Court rejected that application.  Now it is before this Court.  It is manifestly hopeless.

The applicant has attempted to present a new case, claiming breach of procedural fairness by the Tribunal, based on the decision of this Court in Muin v Refugee Review Tribunal (2002) 76 ALJR 966, 190 ALR 601. That application cannot succeed. Apart from other reasons, this is because no evidentiary basis for the complaint was ever laid in the proceedings below. When the substance of the applicant’s claim is looked at by the Court, based on the alleged fear because of membership of the BNP political group in Bangladesh, it was certainly open to the Refugee Review Tribunal to reject the applicant’s application in the way that it did.

Special leave to appeal is accordingly refused.  The applicant must pay the Minister’s costs.

AT 3.46 PM THE MATTER WAS CONCLUDED