NAOZ v MIMIA

[2004] HCATrans 397

[2004] HCATrans 397

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S541 of 2003

B e t w e e n -

NAOZ

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 2004, AT 1.59 PM

Copyright in the High Court of Australia

MR A. MARKUS:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

KIRBY J:   Are you the interpreter for NAOZ?

THE INTERPRETER:   Yes, your Honour.

KIRBY J:   Do you know is there a person who answers to that description outside?

THE INTERPRETER:   No.

KIRBY J:   Call the applicant outside the Court.  Call him by his real name.

Thank you for coming to the Court today to assist us.

THE INTERPRETER:   …..

COURT OFFICER:   No response, your Honour.

KIRBY J:   Mr Markus, have you any word as to the appearance of the applicant?

MR MARKUS:   No, your Honour, we have not heard from him at all.

KIRBY J:   Yes.  The applicant has been called three times and we are going to proceed with the matter.

Thank you very much.  Are you needed in the succeeding matter?  There is another case?

THE INTERPRETER:   This one.

KIRBY J:   Only this one.  Perhaps you might make sure to leave your name so that you will be properly – what is your full name?

THE INTERPRETER:   Nutan Maharaj, and I am here from Conference Language Services.

KIRBY J:   Thank you very much for coming today and the Court has noted your attendance.

THE INTERPRETER:   Thank you.

KIRBY J:   This application for special leave to appeal to this Court must proceed without the applicant.  The applicant has been called by his proper name outside the Court and has not appeared.  There is no explanation of his non‑appearance and the Court will proceed to deal with the matter on the papers.

The applicant, an Indian national, sought a protection visa.  Such a visa was refused by a delegate of the Minister on 10 May 2002.  The Refugee Review Tribunal refused an application to it on 21 March 2003.  The applicant had failed to attend the hearing before the Tribunal and the application was dealt with on the papers by that Tribunal.  The applicant then sought judicial review from the Federal Court.  Justice Sackville dismissed the application, finding no jurisdictional error.  Specifically his Honour found that the Tribunal was entitled to determine the application in the absence of the applicant because the notification provisions of the Migration Act 1958 (Cth) had been complied with. On 18 September 2003 Justice Moore dismissed the application to file an appeal out of time to the Full Court of the Federal Court. This was although the delay involved was only relatively short.

Having regard to the substance of the matter, which the Court has examined in the application book, there is no need for this Court to decide a point raised for the Minister, namely, whether an application for special leave might be brought from the order of Justice Moore.  The application is dismissed.  No error has been shown in the reasons of Justice Moore.

Do you ask for costs, Mr Markus?

MR MARKUS:   Yes, your Honour.

KIRBY J:   The application is dismissed.  The applicant must pay the Minister’s costs.

AT 2.03 PM THE MATTER WAS CONCLUDED