NAHL v MIMIA

[2004] HCATrans 145

[2004] HCATrans 145

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S205 of 2003

B e t w e e n -

NAHL

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 APRIL 2004, AT 12.06 PM

Copyright in the High Court of Australia

NAHL appeared in person.

MR S.B. LLOYD:   May it please the Court, I appear for the Minister.  (instructed by Blake Dawson Waldron)

CALLINAN J:   Thank you.  Would you please swear the interpreter.

IQBAL HYE CHOWDHURY, affirmed as interpreter:

CALLINAN J:   Do you wish to have an interpreter, Mr Chowdhury, interpret for you, is that correct?

NAHL:   Yes.

CALLINAN J:   Well, you tell your interpreter any matters you want to put to us and he will do so.

NAHL (through interpreter):   I had preferred for an Indian interpreter, from India.

CALLINAN J:   What language is the applicant using?  Wait a moment.  What language is the applicant using now?

THE INTERPRETER:   He is Bengali speaking.  He is speaking in Bengali.

CALLINAN J:   And do you understand Bengali without any problems?

THE INTERPRETER:   I understand Bengali.  I do not have any problem with him.

CALLINAN J:   Why would you prefer an Indian interpreter then?  Mr Chowdhury can understand you fully and is able to interpret.

NAHL (through interpreter):   There is difference in pronunciation between the Bengali in Bangladesh and the Bengali in West Bengal.

CALLINAN J:   Mr Chowdhury, are you having any problems at all in understanding the applicant?

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

CALLINAN J:   Would you tell him that I have asked you that question and your response to it, please?  Yes, well, I think you should proceed on the basis that Mr Chowdhury is your interpreter and can sufficiently interpret for our purposes and your purposes.  So please proceed.

NAHL (through interpreter):   My prayer to this honourable Court is that at this very moment I am a psychiatric patient.  I do not have any financial capability at this moment to engage a good barrister or solicitor.  My case is genuine, but I cannot present this case properly because I am a psychiatric patient.  So that is why if I make any wrong mistake please pardon me.

I came to Australia in May 1998 from India.  In the first week of my arrival I met one solicitor named Mr ….. and I have submitted different documents and statement to him.  According to his advice, I have submitted the documents.  Unfortunately I signed – excuse me.  Anyway, at different times I had worked in different restaurants and in the security industry.  Some unknown people had attacked me at my head.  That occurred at the corner – that happened at the corner of 6 Young Street and 42 Flinton Street, Paddington, NSW.  It happened – it occurred at four in the morning.

I am very much grateful to the Police Department of NSW, that police came – appeared within three minutes after I had called them from my mobile, and the ambulance were also there and that ambulance took me to St Vincent’s Hospital.  I had given my information and all of the documents at the time to Rose Bay Police Station.  Since then those people that tried – made an attempt to attack me. 

I had furnished the information – the documents at the right time to the inspector, Mr Gilbert, of Rose Bay Police Station.  I am very grateful to Mr Gilbert because he had listened to me.  At present, I am a psychiatric patient.  I had submitted a medical certificate at the right time in the Federal Court.  It is worth mentioning my hearing was held in 18 March, but that accident happened in January.  So, for that reason, I had lost my mental balance at the time.  At the time of the hearing, I was very ill and sick and so I was drinking a lot of water.  You would be able to find this in the…..  I was so sick.  I could not get the documents from my bag and submit it to the Tribunal.  I could not.

Anyway, I had submitted the medical certificate to the Federal Court.  They say I may be excused.  I hope that after the hearing about my case my life your Honour will take the right decision and help this sick psychiatric patient.  At this very moment, my life is at stake.  That is why I am praying to this honourable Court for my safety and financial health.  Not only that, these people from over here and who are present here – and it will be a pain to you to learn this – that is very much unfortunate – my personal life has been…..through Internet.  So that is why I have been neglected by the society.  Wherever I went, wherever I travelled, by bus or train, everybody looked at me and laughed at me.  I thought maybe it is a part of my life.  I hope you realise my whole situation.  If I may have made any wrong or mistake, that is for my safety, because I have done this at the advice of the solicitors and advice of other people. 

I have also informed about my case, about my life, to the Federal Privacy Commissioner and I have also informed two different legal centres, Redfern and Marrickville.  I do not know to what extent they are going to help me, but at this moment, at this very present moment, my life is at stake.  The day before yesterday, after dinner, I had vomited six or seven times, I had stomach ache, and I went to the Royal Prince Alfred Hospital.  Over there, the psychiatrist has examined me.  That is why I am grateful to them.  I am still sick.  That is why I cannot present my case to you, but I will submit some documents if you kindly accept those. 

CALLINAN J:   Just show them to Mr Lloyd first, please. 

NAHL:   I sent one submission last week.  You have got it?

CALLINAN J:   We have your papers, yes. 

NAHL:   And one piece handwriting?

CALLINAN J:   Yes.

MR LLOYD:   Your Honour, we did not receive a copy of any of this material.  To the extent to which it includes medical certificates and the like, we would object to it.  To the extent that it includes submissions, I just have not had a chance to read them, but I cannot object to submissions. 

CALLINAN J:   All right.  Thank you, Mr Lloyd.  Hand them up, please.  There is no problem about receiving the material that relates to submissions, but the other documents we cannot receive, we cannot act on them.  They are objected to, they have not been seen previously by Mr Lloyd, and they are probably irrelevant anyway. 

NAHL:   …..medical certificate? 

CALLINAN J:   No, that is not relevant.  We will not pay any regard to them in these proceedings. 

NAHL (through interpreter):   Why is that, may I know? 

CALLINAN J:   For a start, they are not in proper form, they have not been filed within time, and they are irrelevant to the issues which the applicant wishes to raise before us. 

NAHL (through interpreter):   I had submitted that three days ago. 

CALLINAN J:   I am not talking about the submissions.  Mr Lloyd makes no objection to them.  The medical reports and the other material that does not consist of submissions we have ruled on and we do not intend to make any further ruling. 

NAHL (through interpreter):   It is not relevant? 

CALLINAN J:   Not relevant to the issues that the applicant seeks to raise before us. 

NAHL (through interpreter):   I was sick, so I could not because ‑ since I was sick, I could not present my case properly to RRT.  That is why I am requesting you ‑ ‑ ‑

CALLINAN J:   I have ruled on the matter.  The applicant is just wasting his time.  Is there anything further that you wish to say regarding your application? 

NAHL (through interpreter):   I have made a second application to RRT for – to rehear my case.  I have made the same request to Federal Court, since I was sick, so that I should be given another opportunity, but they did not consent to my application.  That is why I am requesting to this honourable Court my case should be reconsidered.  At this stage, my life is in danger.  Australia is a humane country.  I believe that if somebody wants to live with honesty and sincerity that person is able.  I also respect this country.  I was injured at my workplace.  At present, I am a psychiatric patient.  With my physical disabilities, I am not able to restore my life.  Over here, a lot of people, they know me.  If I am able to stay here, then my life will be secure.  That is why I am praying to you, so that I can live here permanently.  Everything is going to depend on your discretion, on your consideration.  Thank you. 

CALLINAN J:   Thank you.  We do not need to hear you, Mr Lloyd.

The applicant’s application for a protection visa was unsuccessful before the Refugee Review Tribunal because it disbelieved his claims that he had been falsely accused of murder, that he had been the victim of police abuse and that he had been harassed by a political group.  The Tribunal also held that even if the applicant’s claims were correct, there was no risk of persecution on the applicant’s return to India.  Federal Magistrate Barnes rejected the applicant’s criticisms of the Tribunal.  Justice Jacobson in the Federal Court agreed with her reasoning and rejected some additional complaints that were made before his Honour.

Apart from some reagitation of points which were correctly rejected below, the primary ground on which special leave is sought is a contention that the Tribunal failed to follow the correct statutory procedures.  Like many other unrepresented persons seeking protection visas who apply for special leave to appeal to this Court, the applicant, whose summary of argument and amended submissions were prepared by someone having some legal knowledge, referred to Muin v Refugee Review Tribunal (2002) 76 ALJR 966. The point was not taken below and here the applicant did not demonstrate any factual basis for the application of that case. The applicant also sought to rely upon some medical material which could not be received into evidence for the reasons that were given at the time of its rejection.

NAHL (through interpreter):   I do not understand.

CALLINAN J:   It is a matter for the applicant to listen.  He will see the reasons later.  He should not interrupt while I am giving judgment.

In any event, that medical material, even if it had been received, could not have any bearing upon the issues that arose for resolution at any of the various stages of these proceedings, including this stage of the application for special leave. 

The application for special leave is refused with costs.  I will return these documents to the applicant.

NAHL (through interpreter):   You are not going to accept these documents?

CALLINAN J:   We have seen the documents.  Return them to me, please.  They will remain as part of the Court record.  Your matter is concluded.  You should leave.

AT 12.34 PM THE MATTER WAS CONCLUDED