NAJI v MIMIA

[2006] HCATrans 441

[2006] HCATrans 441

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S151 of 2006

B e t w e e n -

NAJI

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Summons

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 14 AUGUST 2006, AT 11.02 AM

Copyright in the High Court of Australia

NAJI appeared in person.

MR R.J. WHITE:   I appear for the respondent.  (instructed by Sparke Helmore)

HIS HONOUR:   Yes, you are the person who is known in our records as NAJI?

NAJI (through interpreter):   Yes, your Honour.

HIS HONOUR:   And you realise we use that description so as to avoid putting your real name on the record of the Court and thus on the Internet?

NAJI (through interpreter):   Yes, your Honour.

HIS HONOUR:   This is a provision of Australian law which is designed for your protection and involves no discourtesy to you in failing to use your real name.  You are here today with an interpreter in the Bengali language, is that correct?

NAJI (through interpreter):   Yes, your Honour.

HIS HONOUR:   Do you ask that you have the assistance of the interpreter during these proceedings?

NAJI (through interpreter):   Yes, your Honour.

HIS HONOUR:   Yes, very well, affirm the interpreter, please.

MOHAMMED ARAFEEN, affirmed as interpreter:

HIS HONOUR:   Yes, thank you very much.  Now, let me just see.  This is a case where again the applicant was out of time only by a very short time.  I think this is one day, is that correct?

MR WHITE:   That is correct, your Honour.

HIS HONOUR:   Do I understand it that the Minister raises no suggestion of any prejudice on the basis of the time default?

MR WHITE:   Not merely on the issue of the time, your Honour, although the applicant has instituted a number of previous proceedings in relation to the same Tribunal decision that might cause the Minister some prejudice in continually being called upon to defend those proceedings.

HIS HONOUR:   That is a complaint relating to multiplicity of proceedings.  It is not a complaint relating to any particular prejudice in this matter by reason of the time default of one day.

MR WHITE:   Not in relation to the time, your Honour, no.

HIS HONOUR:   Yes.  Is the applicant the actual person who was involved in earlier proceedings known as SZGSS, or which is the earlier matter that the applicant was involved in?  Has he always been known as NAJI?

MR WHITE:   For the purposes of recent proceedings, yes, your Honour, although some of the very early proceedings in 2003 may have involved a different non‑publication.

HIS HONOUR:   Yes.  Are the earlier proceedings in any way relevant?  Is it suggested that this is an attempt to rerun an earlier application for a protection visa or is it simply the case that they were distinct and separate proceedings which are not really relevant to the current application before the Court?

MR WHITE:   They are relevant to this extent, your Honour.  These later proceedings are really in relation to interlocutory proceedings relating to the earlier what might be termed substantive proceedings.  Does your Honour have a copy of the respondent’s written submissions?

HIS HONOUR:   I do.

MR WHITE:   If your Honour notes at page 7 of those submissions there is an attached chronology of the applicant’s litigation history.

HIS HONOUR:   We have had cases where a person has come to the Tribunal twice completely ignoring an earlier application and endeavouring, by commencing a fresh application, to have a second run at the case.  Is that the situation in this case or not?

MR WHITE:   No, your Honour.  There has only been one application to the Tribunal.

HIS HONOUR:   So all of the complaints that have followed have concerned the alleged defects of the original Tribunal decision?

MR WHITE:   Yes, your Honour, although some grounds the applicant has alleged relate to the decision of the delegate, although, for the reasons outlined in our submissions, that has no real bearing in light of the Tribunal’s review.

HIS HONOUR:   Yes, the applicant’s applications have been before the High Court on three occasions, is that correct, in matter S632 of 2003, in matter S271 of 2004 and now in matter S151 of 2006?

MR WHITE:   That is correct, your Honour.

HIS HONOUR:   Yes, all right, thank you very much.  Now, the applicant reads an affidavit which is dated 22 June 2006.  Mr Interpreter, would you ask him if he wishes to rely on that affidavit?

NAJI (through interpreter):   Which one, your Honour?

HIS HONOUR:   It is 22 June 2006.

NAJI (through interpreter):   Yes, your Honour.

HIS HONOUR:   Yes, have you seen that affidavit before now, Mr White?

MR WHITE:   I have, your Honour.

HIS HONOUR:   Is there any objection to the reading of the affidavit?

MR WHITE:   There is no objection.

HIS HONOUR:   Do you wish to cross‑examine the applicant on the affidavit?

MR WHITE:   No, your Honour.

HIS HONOUR:   Very well.  I read an affidavit of the applicant sworn 22 June 2006.  Yes, well, now, you know that the Minister accepts that the default in this case is only one day, but the Minister says you are a very experienced litigant, and the record does seem to show that you have had very many applications in the Federal Magistrates Court, in the Federal Court of Australia and in this Court.  So in these circumstances the Minister says that you know the rules and you have got out of time and you therefore have to show that it is in the interests of justice that your application should be permitted to proceed.  Counsel for the Minister has provided the Court with written submissions setting out the arguments that the Minister urges on the Court for rejecting the application.  Have you seen the Minister’s written arguments?

NAJI (through interpreter):   Yes, your Honour, I have seen.

HIS HONOUR:   Very well.  This is an opportunity for you to have your say.  You should stand up and if you have anything to say, you can now say it.

NAJI (through interpreter):   I arrived in Australia in year 2000.  I was involved in politics in my country, Bangladesh National Party.  Due to a threat of my life I came to Australia.  All the time I try my best to go back to my country.  Due to this worriness my parents never give me permission to go back to Bangladesh and due to this worriness my father passed away.  That is why I respect the Australian law and this is the reason I do not want to be here unlawfully and this is the reason I am going from one court to another again and again.  This is my last time.

HIS HONOUR:  

The Minister says that this insistence on lawfulness is all very well, but you have to establish that there was an error of law or procedure or jurisdiction in the court below in order to get special leave and that you have not done that.  The Minister says that you are really trying to revisit the applications that you have already had before the Federal Court and, indeed, before this Court and that the time has come for this Court to say you have had two previous matters in the Court and enough is enough. 

The Minister says that you have not filed the written case that would give us a clue as to what new arguments that you have to advance in this application, nor have you attempted to show why this case is different from the other cases that you have brought and which have failed.  Accordingly, the Minister says that the time has come for me, although the default is only one day, to draw a line in the sand and to conclude all of these cases.  What do you say in answer to those arguments?

NAJI (through interpreter):   There was not a delay for one day.  I have submitted it by due date.  I have got the copies of that.  There is a receipt.

HIS HONOUR:   The application was filed on 24 May 2006 according to a note in the Registry and on 22 June 2006 you were advised by a Deputy Registrar that your appeal was deemed to have been abandoned at 4 o’clock on 21 June 2006 pursuant to rule 41.10.4 of the High Court Rules which require a written case to be filed within 28 days of the filing of the application.

NAJI (through interpreter):   No, the file I have submitted I did not have those copies.  I have only this copy with me.  After that I was going here and there for seven days because the reason is my solicitor just fly away and he just took all my money from me.  And in Australia there was a case against him, …..Immigration Service and even though my passport is not with me, he has the passport.

HIS HONOUR:   I understand this, but unfortunately the obligation is on the litigant either by himself or by his solicitor or some other person to file in accordance with the Rules of the Court.  The Court cannot get involved in the problems between the litigant and his lawyer or anyone else.  Could you tell Mr NAJI that because he is only one day out of time and because of what he says are the circumstances, I would definitely permit him to go on with his case if he has an answer to the points that have been raised by the Minister.  But even now he has not favoured us with an outline of what he says are the arguments that he would advance if he were allowed the extra time to bring this application. 

You see, he is in the highest court of this country.  Most highest courts would not see people like him and I am sitting here trying to do justice to the people who come before the Court and he is not really giving any clue as to what his case is.  So it is a natural thing for a person like me who tries to be a just man to conclude that he does not really have a case.  I am sure the great Rabindranath Tagore wrote poems about the problem of judges, but that is my problem today.

NAJI (through interpreter):   May I say something, your Honour?

HIS HONOUR:   Yes.

NAJI (through interpreter):   As I have come to the Court again and again and again, the only reason was to stay here.  If I go back to my country I will be killed and this was the only reason.  Due to this worriness my father passed away and that is why I came to the Court again and again.

HIS HONOUR:   I understand that he has no doubt had a lot of problems in his life, but I am here to decide whether there is an arguable case which, in the interests of justice he should be allowed to bring, although he has got out of time.  I can only do that if he can show that the courts below have been unfair to him or have acted in a way that is an error of law or of procedure or of jurisdiction.

NAJI (through interpreter):   Your Honour, I am thinking of getting a lawyer.

HIS HONOUR:   I am afraid we have reached the point where it is now or never.  I repeat, in India or Bangladesh or other countries he would never get to see a judge of the highest court.  I have set aside today and he is here now, so he has to give it now or it is too late.  Is there anything else he wants to say to me?

NAJI (through interpreter):   Yes, your Honour.  I would like to request your Honour to extend some time.

HIS HONOUR:   I am afraid I would not give that application.  As I said to an earlier applicant today, the time is set aside, he is here, the respondent Minister is here, the Court officials are here, my staff are here, the translators are here, the recorder of the record is here, and we are all here to deal with the case.  He is an experienced litigant who has been in many cases and he just has to proceed with it now unless there is some very good reason for the delay, and I do not see any good reason against the background of this case.  Is there anything else that he wishes to say to me?

NAJI (through interpreter):   The reason is I will not be staying here unlawfully and if I go back to my country, I will be killed.

HIS HONOUR:   That is the very matter that has been the subject of the hearing in the Tribunal which decided his application against him.  He does not prove the application by stating this.  It has to be established to the courts and tribunals below.  I am only here to correct mistakes.  Relevantly I am only here if he can get into the Court by showing that the interests of justice require that his case should have its time extended.

NAJI (through interpreter):   The thing is I will talk to a lawyer, then I will submit a submission to the Court.

HIS HONOUR:   No, I would not extend the time from today.  Is there anything else that the applicant wishes to say?

NAJI (through interpreter):   All my papers are to the lawyer and he has fly away with all those documents and papers.  The papers and documents that I have submitted to the other courts, no one really looked through all those documents and they did not justify those documents.  They have just made a decision.

HIS HONOUR:   Thank you very much.  If you have nothing else to say, you may sit down.

NAJI (through interpreter):   That is all I ‑ ‑ ‑

HIS HONOUR:   Is there anything that you wish to say in response to the submission of the applicant?

MR WHITE:   No, your Honour.

HIS HONOUR:   What do you say in relation to his complaint that his lawyer is the one who got out of time and the lawyer has his passport and his papers and that he cannot therefore present his case fairly to himself today?

MR WHITE:   Your Honour, that is the first time that that argument has been raised, although we would say the applicant has had more than ample time to present the case that he wishes to bring.  This is his application which he filed on 23 June.  It is for him to identify the errors, if there be any, in the judgment of Justice Edmonds who refused leave to appeal from the decision of a federal magistrate dismissing the application to that court as an abuse of process.  We say in the circumstances of the case, even if the applicant were to obtain the services of a legal adviser, he would perhaps have limited opportunity to succeed if time were to be extended to restore his case to the list.

HIS HONOUR:   Thank you.  Is there anything the applicant wishes to say in reply to that submission from the Minister?

NAJI (through interpreter):   Yes.  When I got the time, then I was in a conversation with my lawyer.  A hundred and fifty people from India and Nepal, all of these people’s documents and money were towards that lawyer and solicitor at the time - he was giving us the appointment today or tomorrow.  At the last day when we all approached to his house, that was Friday, he fly away.  At the time we all were standing in front of his house and his wife was telling he would come back.  I do not know where he left.  After that my nephew find out from the Internet that against him there were some cases by the Australian Government and Australian law and there were some fines against him.

Since then I did not get a situation and I did not get anyone from who I will seek their advice or who should I go for the advice.  One of my friend he studies in Campbelltown University and the submission that I have submitted on 24^th after so many corrections, he has made that submission for me.  After my request he made the submission.  That is why there was a one day delay but I was coming here in the Court again and again for seven days.  Now I will go to a very good lawyer and I will seek for some advice and some suggestion from that lawyer.

HIS HONOUR:   The applicant did not say any of these things in his affidavit of 22 June 2006 which he filed in support of this application for the extension of time.

NAJI (through interpreter):   No, they did not take that affidavit.  They did not take that affidavit but they have given me a receipt of $101 and another document.

HIS HONOUR:   No, but I am referring to the affidavit in which he sets out the basis on which the Court should receive his claim, although out of time.  That is dated 22 June 2006 and there is not a mention there at all of the defaults of his former solicitor.

NAJI (through interpreter):   No, I did not mention those points here.

HIS HONOUR:   Very well, thank you very much.  Is there anything else you wish to say?  I know this is an important matter for you but I have to act on the evidence and the record.  You may sit down.

This is another application in which the applicant, a national of Bangladesh, has become out of time for prosecuting an application for special leave to appeal to this Court.  He filed that application on 24 May 2006 but did not file his written case within time.  Accordingly, on 22 June 2006 the applicant was advised by a Deputy Registrar of the Court that his application for special leave to appeal was deemed to have been abandoned from 4.00 pm on 21 June 2006 pursuant to rule 41.10.4 of the Rules of this Court.  That abandonment was deemed to have occurred by reason of the applicant’s failure to file the written case within 28 days of the filing of his application.

The application has a remarkable history.  That history is set out in the respondent’s outline of submissions which was placed before the Court by the Minister.  The case has been before the Full Court of the Federal Court of Australia on two occasions in matters No N587 of 2003 and NSD1423 of 2005.  It has been otherwise before the Federal Court, constituted by Justice Edmonds, on another occasion in NSD2566 of 2005 where the orders were made now the subject of the proposed application for special leave to appeal.  It has been before the Federal Magistrates Court on two occasions in applications SYG1599 of 2005 and SYG2670 of 2005.

The applicant was supplied with a copy of the Minister’s outline of submissions.  He did not contest the accuracy of the facts that are set out in that document.  Certainly the many applications which the applicant has brought to the courts of this country indicate his strong desire to remain in Australia and his strong resistance to the termination of the thread that links him to that possibility, namely the proceedings in the federal courts.  He has even been before this Court on two previous occasions.  He came before the Court in S632 of 2003 when his application was ultimately deemed abandoned on 5 July 2004.  In matter No S271 of 2004 his application progressed to consideration by a Full Court of this Court constituted by Justices Hayne and Callinan.  Their Honours dismissed the application for special leave to appeal with costs on 26 May 2005.  Notwithstanding that order, the applicant has proceeded, since that dismissal, in no fewer than five proceedings, the latest of which is the one that brings him before me.

The written case in the application before me was offered for filing one day out of time.  In the normal course of events I would cure such a time default, as I did earlier today in a case where the applicant did not appear personally and where he likewise was one day out of time – see SZERD and Another v Minister for Immigration and Multicultural and Indigenous Affairs.  However, that was a case where it seemed to me that there were matters which were better considered by a Full Court.  I have not reached that conclusion in the present case.

I have concentrated on the orders which are the subject of the present application.  Those orders are, initially, the orders made in the application for judicial review that came before Federal Magistrate Smith on 6 December 2005 when he dismissed the application summarily.  That order of the Federal Magistrate was then reconsidered on an application for leave to appeal that came before Justice Edmonds in the Federal Court on 1 May 2006.  For reasons which Justice Edmonds gave, he dismissed that application and refused leave.

The question before me is not whether the time default is unexplained or caused any prejudice to the Minister.  The Minister complains about the long series of litigation brought by the applicant in which the Commonwealth has been involved.  However, correctly on her behalf, her counsel acknowledged that it was not possible, focusing only on this application, to demonstrate any particular prejudice that had been done by the very short time default that had occurred in offering the written case for filing.

From the Bar table the applicant said that the default had occurred because of the error on the part of his then lawyer.  However, that was an assertion.  It is not an assertion which was included in an affidavit which the applicant filed on 22 June 2006 in support of this application.  Nonetheless, for present purposes I would be prepared to accept that the mistake was not that of the applicant personally but that of his then lawyer.  In these circumstances with such a time default so brief and, as has been suggested on the part of someone else, I would normally cure the default and permit the applicant to proceed. 

But there is an additional requirement which the applicant must demonstrate in order to secure an order dispensing with compliance with the Rules of Court as to time.  This is the obligation to demonstrate that the interests of justice require, or suggest, that the case is one for the provision of such leniency and an order to that effect. 

When I examine the record in this case I can see no unfairness or legal error on the part of Justice Edmonds or of Federal Magistrate Smith that would attract the intervention of this Court, were the time default cured.  I can see repeated applications which have earlier been dealt with apparently on the merits of the applicant’s claim.  Even to this stage the applicant has not filed a notice setting out his case for the grant of special leave in this application.  The affidavit which he did file is expressed in extremely general terms.  It makes no reference whatever to the suggested defaults of his solicitor.  Nor does it contain any propositions that would give an inkling of an arguable case that would attract the grant of special leave in this Court and therefore demonstrate, or at least suggest, that the interests of justice require the provision of an extension to permit him to have his case reconsidered by a Full Court of this Court.

When I drew these difficulties to the attention of the applicant, his answer was that he needed more time in which to prepare his case and to get a good solicitor to represent him now.  However, the applicant has been an experienced litigant.  Necessarily, he has acquired a lot of opportunities to observe the way courts operate.  The Rules of Court of this Court, the final constitutional and appellate court of the nation, are there for the efficient discharge of the Court’s responsibilities and for the protection of other litigants who are awaiting hearing in the Court list.

To the extent that the applicant sought an adjournment of his application, although he never finally formulated such an application, I would reject it.  The case is here to be determined.  I have given the applicant every opportunity to indicate the basis on which he would now seek to appeal from the orders of Justice Edmonds.  Nothing that he has said has indicated an arguable, or even approximately arguable, case that would attract the attention of this Court and a possible grant of special leave to appeal.  Accordingly, the time default of the applicant at this stage of the proceedings proves fatal.

The applicant complains that this will mean that he will be returned to Bangladesh where he claims that he will be killed.  That claim was not accepted by the Tribunal which heard the applicant’s evidence.  I have, of course, carefully examined the case because I realise that the matter is one important to the applicant, as applications of this kind typically are.  However, my duty is to dispose of the case in the terms of the record.  On that record, against the background of the extensive litigation which I have described, I am unconvinced that the interests of justice require the waiver of the time default that has occurred.

The result is that the application must be dismissed.  The applicant must pay the Minister’s costs. 

Interpreter, please tell the applicant that, for the reasons that I have explained, which will be typed up and will be available to the applicant, I have rejected his application.  I have ordered that he pay the Minister’s costs.  That is the normal order that is made where a person loses a case in this Court.

The Court will now adjourn.

AT 11.41 AM THE MATTER WAS CONCLUDED