NBGM v MIMA & Anor

[2006] HCATrans 283

[2006] HCATrans 283

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S145 of 2006

B e t w e e n -

NBGM

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Summons

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 JUNE 2006, AT 9.04 AM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC:   If the Court pleases, I appear with MR S.B. LLOYD for the Minister.  (instructed by Sparke Helmore)

MR G.C. LINDSAY, SC:   May it please the Court, I appear with MR L.J. KARP for the applicant on the leave application.  (instructed by Legal Aid Commission of New South Wales)

HIS HONOUR:   Now, you read an affidavit of Jennifer Bautista sworn 6 June 2006?

MR GAGELER:   I do, your Honour.

HIS HONOUR:   I have read that affidavit.  The only thing that worried me a bit in this case was when I had a look – I cannot promise that I have read it carefully – at Justice Allsop’s reasons he refers to some issues that are not common to the case that is presently listed in Brisbane.  I am referring to paragraph [153] where he says:

Similar issues (though not all the issues raised in this appeal) were dealt with by a Full Court of this Court in QAAH –

Then I looked at the notice of appeal and I am just not sure whether the only issue that is being raised is the issue that is already before the Court in QAAH.

MR GAGELER:   Your Honour, there is one issue before the Court in QAAH and that is the construction of Article 1C(5) of the Convention.  In NBGM there are two issues:  Article 1C(5) and also, separately but overlapping in the view of Justice Allsop, the construction of section 36(3) and (4) of the Act.  So what his Honour was doing was deciding the case pretty much on – well, he decided against the Minister on both of those grounds.  It is only one of those grounds that is before the Court in QAAH.

HIS HONOUR:   Why did he not follow QAAH?

MR GAGELER:   Well, he did.  He was consistent with the majority approach in QAAH.

HIS HONOUR:   Justice Allsop, but why did the Full Court not follow its own authority?

MR GAGELER:   Well, the court in NBGM sat a bench of five and so there were two issues with a bench of five.  As we see it on the section 36(3) issue, the court split 2:2.  That was not an issue that was dealt with in QAAH.  That is the court split 2:2 on the statutory issue and the fifth member of the court, Justice Stone, decided the case not on the statutory issue but on Article 1C(5).  If your Honour looks at paragraph [145] – that is towards the end of Justice Stone’s judgment – what your Honour will see is that she says that she recognises, from [145] onwards, that the view that she comes to is different from the view that the majority came to in QAAH but in circumstances where QAAH was the subject of an appeal before this Court she felt less constrained to follow it.  That is the point that she comes to in paragraph [148].

HIS HONOUR:   In any case, according to the affidavit of Ms Bautista, you believe that the whole matter can be dealt with in an hour total hearing time and you indicate that you would co‑operate to ensure that the hearing was completed on 20 June 2006 and that it would not extend the total hearing of the QAAH appeal so that it went more than a day?

MR GAGELER:   Yes.  I had some discussions with Mr Walker, who is appearing for the respondent in the QAAH case and that was the joint view of senior counsel in both cases, your Honour.

HIS HONOUR:   I had better hear what Mr Lindsay has to say then.

MR LINDSAY:   Essentially I agree with what has been put to your Honour.  There are the two issues and they are, it seems to us, interrelated and the difference is that this case raises section 36(3).

HIS HONOUR:   Yes.  I noticed in the file that there is an affidavit by a solicitor for Amnesty International Australia seeking leave to be heard as an amicus but I do not see any written submissions.  If they are allowed to appear as amicus, they would probably or they may be restricted to simply written submissions, so they had better be told that.  If they think that they have hours of time to stand up before the Court, they will not have that.  If they have a neat written submission, it may be that the Court would receive that.  Perhaps the parties could pass that on to Amnesty International Australia.

MR GAGELER:   Yes.  Your Honour, I was not aware of such an affidavit having been filed in this matter.  In the other matter, in QAAH, there was an application by Amnesty International to intervene, or at least be heard as amicus.

HIS HONOUR:   Yes, that is the file in which I have seen the affidavit.

MR GAGELER:   We have been informed, I think formally, that that application is to be withdrawn.

HIS HONOUR:   It has been withdrawn, has it?

MR GAGELER:   Yes, but an application has been made by the UNHCR to intervene in that matter and submissions have been filed, yesterday I think.

HIS HONOUR:   Yes.  As long as they do not assume that they will be heard orally.  I am not saying that I would not favour their being heard orally, but the Court’s practice is very rarely to allow that to happen.  It may be as well if they are informed of that.

MR GAGELER:   We will do that, your Honour.

HIS HONOUR:   Yes.  In NBGM I will order that the application for special leave be referred to a Full Court of this Court to be heard in Brisbane after the hearing and concurrently with the appeal in QAAH of 2004 which is listed for hearing in Brisbane on Monday, 19 June 2006 and Tuesday, 20 June 2006.  I order that the costs of the motion before the Court today be costs in that application for special leave.

Is there anything else that you ask?

MR GAGELER:   Yes.  I am not sure your Honour made it explicit that the application was to be argued as an appeal on that day.  I think it was at least implicit in your Honour’s order that would occur.

HIS HONOUR:   I think that should happen.  However, if, for example, the hearing in QAAH is greatly extended for any reason, then the Court would have the matter before it and it can take its own course with the matter.  I would assume that the application will be heard as on an appeal.  But I will not order that because it depends on the time factors.  Counsel now before me have given their own undertakings.  However, the matter depends a little on counsel who are appearing in QAAH.  Nevertheless, counsel in these proceedings should certainly be ready to argue the matter as on appeal.  The matter will be before the Court for that purpose.

MR GAGELER:   If the Court pleases.

HIS HONOUR:   The Court will now adjourn sine die.

AT 9.13 AM THE MATTER WAS CONCLUDED