NAHT of 2002 v MIMIA

[2004] HCATrans 278

[2004] HCATrans 278

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S402 of 2003

B e t w e e n -

NAHT OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 AUGUST 2004, AT 11.31 AM

Copyright in the High Court of Australia

NAHT OF 2002 appeared in person. 

MR T. REILLY:   If the Court pleases, I appear for the respondent.  (instructed by Australian Government Solicitor)

KIRBY J:   You are the person who is named on the record as NAHT of 2002? 

NAHT OF 2002:  Yes.

KIRBY J:   You know that we do not mean any discourtesy by not giving you your name, but the Parliament has provided in the Migration Act that names should not be used in the Court in order to ensure that people’s names do not end up on the Internet and that they are not embarrassed by invoking the jurisdiction of the Court.  Do you understand that?

NAHT OF 2002 (through interpreter):   Yes, I understand that.

KIRBY J:   Very well.  Interpreter, you were present in an earlier case but you were not, I think, affirmed.  Is that the case?

THE INTERPRETER:   I am not affirmed yet, but yes, I was actually booked for four matters.

KIRBY J:   Do you wish to take the oath or will you make an affirmation?

THE INTERPRETER:   Affirmation, yes, your Honour. 

KIRBY J:   Very well, affirm the interpreter.  What is your full name, please?  Would you put that on the record?

THE INTERPRETER:   Yes, your Honour.  My surname is Hossain.  My first name is Amir.

KIRBY J:   What is your address?

THE INTERPRETER:   3/4 Betts Street, Parramatta, New South Wales 2150.

KIRBY J:   Thank you very much.  Go into the witness box and the officer will affirm that your interpretation will be faithful.  You can sit down for the moment.

NAHT OF 2002:   Thank you.

AMIR HOSSAIN, affirmed as interpreter:  

KIRBY J:   Thank you very much.  You may go back and stand beside the applicant, if you would, and assist him.  Now, you understand that you have a maximum of 20 minutes in which to speak to the Court.

NAHT OF 2002:   Yes.

KIRBY J:   The Court has received your written submissions and has read the written submissions so you do not have to repeat them, but this is your opportunity to speak to the Court and tell the Court what you want to say.  Would you stand up and speak into the microphone and tell the Court what you wish to say in support of your application?  Perhaps both of you can come to the centre so that it will be recorded. 

NAHT OF 2002 (through interpreter):   Sure.

KIRBY J:   Explain that it is for the purpose of recording.

THE INTERPRETER:   He was asking me, do I need to tell you or I need to tell the Judge?

KIRBY J:   Well, this is his chance.  He has an opportunity to speak to the Court and say what he wants to say, if he has anything to add to the written documents which the Court has studied.

NAHT OF 2002:   I use my own language, okay?  I can explain that after.

THE INTERPRETER:   Do you want me to speak louder or softer?

KIRBY J:   I am sorry?

THE INTERPRETER:   I am just asking do I need to speak loud or low voice?

KIRBY J:   You should speak loud enough so that you can hear it and you should speak loud enough so that we can hear it.  It is always a pleasure to hear the language of Rabindranath Tagore.

NAHT OF 2002:   Yes, I understand, your Honour.

NAHT OF 2002 (through interpreter):   Your Honour, when I came to Australia first, I did not have adequate knowledge about this country’s law and how it works so that I had to get some sort of help from the community people who actually leaded me.  I was taken to a migration agent, where I never had open opportunity to have my say, but I think there were some mistakes actually made in my previous application which has been lodged to the Department of Immigration.  My question is, is there any chance I can go back to RRT, which is Refugee Review Tribunal, for a fresh hearing?

KIRBY J:   You can only go back to the Refugee Review Tribunal if you can set aside the decision of the Federal Court and persuade this Court to set aside the earlier decision of the Tribunal, which otherwise stands as a decision of law.

NAHTOF 2002 (through interpreter):   I do have proof, yes.

KIRBY J:   Your difficulty at the outset is that you got out of time in the proceedings in the Federal Court and you applied to Justice Hill for an extension of the time on a motion.  Justice Hill dismissed that application.  That is therefore a procedural decision, and it would be very rare indeed that the highest court in the country would get involved in a procedural reviewing, a procedural decision of that kind.  Every day, thousands of such decisions are made in courts, and we just do not have the time to re‑examine each one of those or even a number of them.

NAHT OF 2002 (through interpreter):   Is there any other chance for me to go there?

KIRBY J:   Unless you can overcome that hurdle, there is not, and the written submissions that you have put before us are not really helpful to us, because they do not address the particular facts of your case.  They appear in very general terms and they are the same as submissions received in many other cases; they are not addressed to your particular case.  I hope you did not pay a lot of money for them, because they are not helpful to the Court or you.

NAHT OF 2002 (through interpreter):   I would like to mention that the timeframe I was given and you have mentioned that I was running late to catch up with that hearing.  I have something to say about that.

KIRBY J:   You say it happened by an accident, I think, but that is a matter that Justice Hill had to evaluate.  We can only intervene if you show that he was in error.

NAHT OF 2002 (through interpreter):   That is fine.  I have nothing else to say, no more to say.

KIRBY J:   Thank you.  You may sit down.

NAHT OF 2002:    Thank you.

KIRBY J:   Do you have anything to say in the case, Mr Reilly, beyond what the Minister has put in her submissions?

MR REILLY:   No, your Honour.

KIRBY J:   Before the Court is another application for special leave to appeal by a national of Bangladesh against the refusal of a protection visa under the Migration Act 1958 (Cth) (“the Act”) and the failure of challenges below in the Refugee Review Tribunal and the Federal Court of Australia.

Formally, the application seeks special leave to appeal from a judgment of Justice Hill in the Federal Court.  His Honour dismissed a motion seeking an extension of time to appeal to the Full Court of the Federal Court of Australia.  In form, therefore, this case is an application for special leave to appeal against a procedural order.  Self‑evidently, this is a most unpromising basis for a grant of special leave. 

Once again, an applicant from Bangladesh invokes the decision of this Court in Muin and Lie v Refugee Review Tribunal (2002) 76 ALJR 966. Once again, his written submissions are substantially in a form common to many other applications of this kind. They owe more to the technology of the word processor than to any serious analysis of the alleged errors of the court and tribunal below in the particular facts of the applicant’s case.

Most importantly, there is no real attention in the written submissions to the time default which was the basis of the decision of Justice Hill.  The most that was presented on that issue was an affidavit by the applicant stating that the default was by accident.  Justice Hill, by an analysis of the applicant’s arguments, concluded that the applicant did not overcome the time default.  He considered that an appeal was futile. 

We see no error in his Honour’s analysis.  Even if one looks beyond the matter of form to the applicant’s substantive arguments, no arguable jurisdictional or other legal error has been shown.  The evidentiary basis for an argument based on Muin and Lie is totally missing in this case. 

Accordingly, there are no prospects of success in this Court.  Special leave to appeal is refused.  It must be refused with an order for costs. 

AT 11.43 AM THE MATTER WAS CONCLUDED