NASF of 2002 v MIMIA

[2004] HCATrans 16

[2004] HCATrans 016

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S118 of 2003

B e t w e e n -

NASF OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2004, AT 11.38 AM

Copyright in the High Court of Australia

NASF OF 2002 appeared in person.

McHUGH J:   Yes, would you swear the interpreter.

IQBAL CHOWDHURY, affirmed as interpreter:

McHUGH J:   Yes.  As a result of the legislation we cannot use your name so we will just call you “the applicant”.  There is no offence meant by that.  That is what the law requires.

NASF OF 2002 (through interpreter):   Yes.

MR J.D. SMITH:   May it please the Court, I appear for the respondent.  (instructed by Blake Dawson Waldron)

McHUGH J:   Now, would you put your argument, please.

NASF OF 2002 (through interpreter):   I show my respect to this honourable Court.  I know the High Court is the apex court of Australia.  I am an Indian.  Because of my problem I left my job and I came to Australia with my wife and with my minor son and seek for asylum.  What I feel that decisions made by RRT and tribunal there is presence of denial of natural justice and procedural fairness.  I am an ordinary person so I do not have any experience in the legal field and, though I was supposed to engage a barrister over here today, because of my financial hardships I could not manage that, so my first plea to this honourable Court is to grant me two months time so that my father‑in‑law can send me some money from England to engage a barrister.

The Federal Court did not appreciate the mistakes of the wrong done by RRT.  First, the RRT issued me a letter for the interview on 12 December and subsequently sent me another letter dated 27 April.  In these two days I was given five letters by RRT.  In this five days I was interviewed twice.  Once I had been to RRT and at that time I learned that the member forgot that I had the interview on that particular day.  I do not know whether it falls within the ambit of procedural fairness.

Subsequently I learned from the office that the member forgot the date.  On the other hand, another lady took me to another interview room where we could see our picture on the TV, my son and myself, and then there was a sound, the noise came, the “Good morning”, someone’s name, but I do not know the person’s name.  They said, “We are not those people”.  Then they said they are sorry, “It is our mistake, it is…..”, and so we came out of that interview room.

In this…..how can I understand that the whole thing was done on good faith, that they could realise my situation.  I have seen that they did not cite anything about my son.  On the first day of the interview my son wanted to speak to the member but the Tribunal member did not listen to him.  He said, “You will be given chance later”, but in the subsequent interviews he was not given that chance.  I do not know whether this falls under the boundary of the denial of natural justice or procedural fairness.

McHUGH J:   Would you tell the applicant one problem is that this Court does not hear new evidence and none of the matters he is talking about appear in the application book.

NASF OF 2002 (through interpreter):   This is the irony of this, because I had interview twice and after 14 months I was given the decision.  The attitude of the member was different when he was at the time of interview and when he passed the decision after 14 months.  I wanted to submit my tape to the Federal Court but the Federal Court did not accept that tape.  If they would have accepted then they probably would have learned what happened in that interview.  I do not know whether you call this denial of natural justice.  My case is similar to the case of Muin v RRT and Lie v RRT because the DIMA disposed of the case in the same manner that RRT made the same similar decision.  They were also the asylum seeker and myself is an asylum seeker as well.  The question of procedural fairness and natural justice raised in that case and in my case it is also present.

McHUGH J:   The difference between your case and Muin and Lie is that in Muin there was an agreed statement of facts as to what happened.  There is none in this case.

NASF OF 2002 (through interpreter):   In that case they did not go through the documents of Part B, but the same thing happened in my case as well.  Therefore, my honest prayer, please, to this honourable Court is so that I can stay with my family and my son in this country because I do not have any suggestion that I can return to my country.  I know my case is a special case; it is not a test case.  Therefore, to this honourable Court, I am just simply begging that this should be remanded back to RRT.  I would like this honourable Court to see the decision of the case of Plaintiff v Commonwealth of Australia that has been mentioned in paragraph no 37 ‑ ‑ ‑

McHUGH J:   Hand it up.  Yes, we are very familiar with this case.  We decided it.

NASF OF 2002 (through interpreter):   This similar to my case.  It applies in my case.

McHUGH J:   Yes, have you anything further?

NASF OF 2002 (through interpreter):   That is all, your Honour.

McHUGH J:   Yes, thank you.  The Court need not hear you, Mr Smith.

The applicant seeks special leave to appeal from a decision of the Full Court of the Federal Court which, in turn, heard an appeal from a judge of that court who had heard an application for judicial review of a decision of the Refugee Review Tribunal. 

The applicant appears in person.  He has asked us to adjourn the case for two months so that he can obtain money from a relative to brief a barrister. 

The Court has carefully considered the judgment of the Refugee Review Tribunal, the judgments in the Full Court, the written submissions filed by the applicant and his oral submissions in support of his case today.  We are of the view that no error is shown in the decision of the Refugee Review Tribunal and that an appeal would have no prospects of success.  In those circumstances, it would be futile to grant the adjournment or to grant special leave to appeal.  Accordingly, the application for special leave to appeal is dismissed with costs.

Adjourn the Court to Canberra on 2 March.

AT 11.55 AM THE MATTER WAS CONCLUDED