Nguyen v Gerkens

[1997] HCATrans 224

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M34 of 1997

B e t w e e n -

CUONG VAN NGUYEN

Applicant

and

M.W. GERKENS, REFUGEE REVIEW TRIBUNAL

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 AUGUST 1997, AT 11.15 AM

Copyright in the High Court of Australia

MR G.B. POWELL:   May it please the Court, I appear for the applicant.  (instructed by Kuek & Associates)

MR K.H. BELL:   I appear on behalf of the respondent, if the Court pleases.  (instructed by the Australian Government Solicitor)

BRENNAN CJ:   Yes, Mr Powell.

MR POWELL:   Your Honour, I think my learned friend might have given an indication yesterday to the Deputy Registrar that both parties would rely only on the written submissions.

BRENNAN CJ:   That is so, Mr Bell?

MR BELL:   That is true, and we apologise for the late notice.  The parties were able to discuss it ‑ ‑ ‑

BRENNAN CJ:   That is all right, Mr Bell.

DAWSON J:   You are here to rely on the written submissions?

MR BELL:   I am, and my learned friend is also.  There has been agreement that the written submissions will form the basis of the submissions to the Court and there will be no oral presentation.

TOOHEY J:   Not only form the basis of, but constitute the submissions.

MR BELL:   Indeed, constitute.

BRENNAN CJ:   In those circumstances the Court will adjourn briefly in order to consider what course it should take.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.28 AM:

BRENNAN CJ: It is not possible, on appeal, to reverse the finding made by the Refugee Review Tribunal that the application for review of the decision denying the applicant refugee status was given to the Tribunal on 18 October 1993. The effect of section 166 BA(1)(b) of the Migration Act 1958 (Cth) and of regulation 43E of the Migration (Review) 1993 Regulations on this finding is to exclude the jurisdiction of the Refugee Review Tribunal to review the original decision. That regulation appears to be within the regulation-making power conferred by section 504(1)(e) of the Act.

The argument that the notice of the decision refusing refugee status was not effectively given as required by regulation 2A.11 because the notice was in English, a language which the applicant could not understand, is not supported by authority, however administratively unjust the consequence may be.  If there be any requirement of natural justice that decisions of this kind, that is to say, decisions affecting the status of newly‑arrived persons who, to the knowledge of the decision-maker, do not understand English, be communicated in a manner which such persons can understand, this is not the case in which so large a question should be determined.

In this case, the applicant was sufficiently alerted by the communication to take it to his solicitor for translation and advice.  An appeal would not enjoy sufficient prospects of success on this aspect of the matter to warrant a grant of special leave.  Accordingly, special leave is refused.

MR BELL:   I would ask for an order for costs.

BRENNAN CJ:   Do you have anything to say about that, Mr Powell?

MR POWELL:   No, your Honour.

BRENNAN CJ:   Special leave will be refused with costs.

It remains only to say that the Court extends its best wishes to Sir Daryl and Lady Dawson for a happy retirement and to extend to Sir Daryl the thanks of the nation for his judicial services. 

The Court will adjourn to a date to be fixed.

AT 11.30 AM THE MATTER WAS CONCLUDED