NAQU of 2002 v MIMIA

[2004] HCATrans 402

[2004] HCATrans 402

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S280 of 2003

B e t w e e n -

NAQU OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 12 OCTOBER 2004, AT 2.37 PM

Copyright in the High Court of Australia

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

McHUGH J:   Yes, Mr Lloyd.  The matter can be called outside.  This may be the applicant.  You are the interpreter, are you? 

THE INTERPRETER:   Yes, your Honour. 

McHUGH J:   Yes.  Well, perhaps the matter can be called outside. 

COURT OFFICER:   No response, your Honour. 

McHUGH J:   Yes.  Yes, Mr Lloyd. 

MR LLOYD:   Your Honour, in the absence of the applicant, I would ask that to the extent that the matter is not already deemed abandoned, that it be dismissed. 

HEYDON J:   Did you receive the application books? 

MR LLOYD:   No, we have not received the application books. 

HEYDON J:   Despite the letter or letters that were sent? 

MR LLOYD:   That is so. 

HEYDON J:   And that is the basis for saying that the appeal is deemed to have been abandoned? 

MR LLOYD:   That is so.  We do not say it is the most critical problem, however ‑ ‑ ‑

KIRBY J:   But we do have the matter.  He may have decided that the matter should be dealt with by the Court on the basis of his written documentation.  Why should we assume that he has abandoned his application? 

MR LLOYD:   Because that is the effect of the Court’s Rules, Order 69 ‑ ‑ ‑

KIRBY J:   You said at the end of your document, and I noted this when I read it, at 64: 

The Respondent’s legal representatives will be available to supplement this summary of argument with oral argument, if the Court is minded to grant special leave. 

So when I read that, I thought, maybe the applicant, although he said he wished to supplement the argument with oral argument at page 59, when he read that, thought that the matter would be dealt with on the papers, and only if need be would he be called upon to say anything. 

MR LLOYD:   That may be so, your Honour, but nonetheless he is still under an obligation to serve the application books on the respondent, and that is what he failed to do. 

KIRBY J:   What is the rule?  The Rules, of course, are subject to the Court ensuring that justice is done in every case. 

MR LLOYD:   Certainly, your Honour.  The rule is Order 69A rule 13(1).  It refers there to four sub‑rules which, in effect, are mandatory, and failure to comply shall result in deemed abandonment. 

KIRBY J:   What is the sub‑rule that he has failed to – I am not hearing you, Mr Lloyd.  You will have to speak up. 

MR LLOYD:   I am sorry.  The relevant breach is Order 69A rule 10(9)(b), namely, the applicant did not supply three copies, or indeed any copies, of the application book to the respondent. 

KIRBY J:   Is your complaint that he has not given enough copies of a document? 

MR LLOYD:   He has not given any copies of the document. 

KIRBY J:   But you must have got his arguments, because you responded to them. 

MR LLOYD:   But we do not have the application book.  As I say, it is not a matter of huge importance.  It is just the effect of the Rules appears to be that it is a deemed abandonment, and so it is not formally before the Court. 

KIRBY J:   I hope you will not take this amiss, Mr Lloyd, but when I see the Commonwealth appearing here with a solicitor and with experienced counsel who is very knowledgeable about this area, complaining about the lack of documents, it strikes me as a fairly unmeritorious ‑ ‑ ‑

MR LLOYD:   Your Honour, we are not complaining about the lack of documents.  It was a matter that arose on the last occasion.  The applicant

sent in a fax the day before with a medical certificate, seeking an adjournment.  On that occasion, we properly, in my submission ‑ ‑ ‑

KIRBY J:   I wish to make it quite clear that I think the Court should deal with the matter.  I think it should deal with the matter on the oral argument.  At the moment, I am not persuaded that there is merit in the applicant’s argument.  I myself would prefer to deal with it that way than to dismiss it on a technicality that a certain number of documents were not supplied.  We have, after all, your argument for the Minister, we have the applicant’s argument, a document has been put together which is an application book, and we have all taken time to read it and look at it and consider it.  It seems to me that is the more seemly way that this Court should deal with the matter, rather than a technical knockout. 

MR LLOYD:   I think my client is content enough with that course. 

McHUGH J:   Yes, thank you. 

In this matter, there has been no appearance for the applicant, although the applicant’s name has been called three times outside the Court.  It appears fairly clear that the applicant has failed to lodge certain documents which he ought to have lodged.  The respondent asks that the matter be dealt with on the basis that there is a deemed abandonment of the application.  However, we have studied the papers and we think it better to deal with the application on the papers that have been filed by the applicant. 

The applicant, a national of India, arrived in Australia in October 2000.  Soon after, he sought a protection visa, claiming to be a refugee.  The delegate of the respondent Minister refused the visa.  The applicant then applied to the Refugee Review Tribunal for review of that decision. 

The applicant claimed before the Refugee Review Tribunal that there was frequent religious tension and violence between Muslims and Hindus in his home state of Uttar Pradesh and that the police do not protect Muslims, of which he is one.  He referred to certain incidents.  The Tribunal broadly accepted his claims concerning those incidents, but nevertheless came to the view that the government of India would give the applicant the same degree of protection as that accorded to any of its other nationals, and that there was no real chance of him suffering persecution for a Convention reason. 

The applicant then challenged the decision of the Tribunal.  The matter came before Federal Magistrate Driver in December 2002 in an application for judicial review.  Magistrate Driver found that the Tribunal had not breached the rules of procedural fairness, nor had the Tribunal committed any error of law.  The Federal Magistrate held that the Tribunal’s findings were reasonably open on the evidence, and dismissed the application. 

The applicant then appealed to the Federal Court and the matter came on for hearing before Justice Jacobson.  His Honour rejected the applicant’s claim that he had been denied procedural fairness.  His Honour also held that the Tribunal’s decision was based on findings of fact and that the findings of the Tribunal were within its jurisdiction. 

The applicant’s special leave application does not identify any particular question of law, but his notice of appeal raises four grounds.  They are, first, that the Full Federal Court erred in failing to find that the Tribunal’s decision was affected by an error of law; secondly, that there was no evidence or materials to support the Tribunal’s findings; thirdly, that the Tribunal denied the applicant procedural fairness, contrary to the principles in Muin v Refugee Review Tribunal; and, fourthly, that the Tribunal failed to follow proper procedures that were required by various sections of the Migration Act 1958 (Cth).

The application for special leave raises no general question of law that requires this Court to intervene in the matter.  There is no reason to doubt the correctness of the decision of Justice Jacobson.  In those circumstances, the application for special leave to appeal must be refused.

MR LLOYD:   Can we have an order for costs as well?

McHUGH J:   Yes.  The application is dismissed with costs.

AT 2.49 PM THE MATTER WAS CONCLUDED