NAVH v Minister for Immigration & Citizenship & Anor

[2007] HCATrans 267

[2007] HCATrans 267

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S119 of 2007

B e t w e e n -

NAVH

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for reinstatement

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 28 MAY 2007, AT 9.23 AM

Copyright in the High Court of Australia

NAVH appeared in person.

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

KHALID RASHID SAGER, affirmed as interpreter:

HIS HONOUR:   The Registrar has certified that he has been advised by the solicitor for the second respondent that the second respondent will submit to any order of the Court except as costs.  Does the applicant want to say anything in addition to what appears in the documents which he has filed?

NAVH (through interpreter):   Your Honour, I wish to state that my case should be reinstated because the documents which I received were a little late and I was unable to understand them, which they were in English.  Since I have a valid case, I want my case to be reinstated.

HIS HONOUR:   Anything else he wishes to say?

NAVH (through interpreter):   Since I do not have any solicitor or barrister, when I received the papers I misunderstood them so that is why I wish that I should be given time so that I can reinstate my case.

HIS HONOUR:   Yes, anything further?

NAVH (through interpreter):   No.

HIS HONOUR:   Thank you.  I need not trouble you, Mr Markus.

MR MARKUS:   Thank you, your Honour.

HIS HONOUR:   On 30 June 2003 the Refugee Review Tribunal affirmed a decision by a delegate of the first respondent not to grant the applicant a protection visa.  It did so on the ground that his claims of political persecution were without foundation and were fabricated.  On 16 December 2003 the Federal Court of Australia, Justice Lindgren, dismissed an application for judicial review.  On 31 March 2006 the Federal Magistrates Court, Federal Magistrate Barnes, after refusing an application for an adjournment, refused a further application for judicial review on the ground that it was incompetent as outside the relevant time limits.  On 27 February 2007 the Federal Court of Australia, Justice Heerey, dismissed an application for leave to appeal on the ground that an appeal would have no prospects of success. 

On 22 March 2007 the applicant applied for special leave to appeal to this Court.  The applicant, being unrepresented, failed to comply with the High Court Rules in relation to the date for filing his written case and draft notice of appeal in that they were not filed within 28 days of 22 March 2007.  Pursuant to Rule 41.10.4 the application was deemed to be abandoned.  The relevant documents have still not been made available.

The applicant now applies by summons dated 7 May 2007 to reinstate the application.  The reason given in the applicant’s affidavit and orally this morning for why the applicant failed to comply is that he misunderstood the Registrar’s letter explaining the procedural steps to be taken.  Even if that were to be accepted as an appropriate excuse, the present application must be dismissed on the ground that reinstatement would be futile since any appeal would inevitably fail in view of the plain correctness of the decision of the federal magistrate.  The summons is dismissed with costs.

AT 9.28 AM THE MATTER WAS CONCLUDED