Siddique v MIMIA

[2004] HCATrans 136

[2004] HCATrans 136

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A142 of 2003

B e t w e e n -

MOHAMMAD MAHMOOD SIDDIQUE

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 APRIL 2004, AT 2.30 PM

Copyright in the High Court of Australia

MS. S.J MAHARAJ:   If it please the Court, I appear for the respondent.
(instructed by Sparke Helmore)

GUMMOW J:   Yes, Ms Maharaj.  Are you able to tell us anything of the whereabouts of the applicant?

MS MAHARAJ:   The applicant, to our knowledge, your Honours, is not here today.

GUMMOW J:   Right.  Perhaps the matter should be called outside the Court in Adelaide.

COURT OFFICER:   Party not present in Court, your Honour.

GUMMOW J:   Thank you.  Yes, Ms Maharaj, what would you have us do?  Was there some indication of an application for adjournment?

MS MAHARAJ:   Yes, your Honours.  I understand that your Honours have an affidavit which has been sworn on 23 April 2004 from the applicant.

GUMMOW J:   Yes.

MS MAHARAJ:   And he goes on to assert that he is unwell to attend today.  Just by way of information, your Honours, Mr Siddique was in contact with my instructors on 27 April and he advised that he would be attending Court here to ask for an adjournment in person.  But what we are going to do, your Honours, is to apply under Order 69A rule 15(2) for this Court to determine the ‑ ‑ ‑

GUMMOW J:   Sorry, Order 69A?

MS MAHARAJ:   Order 69A rule 15(2), your Honours, that if:

it appears to the Court or a Justice that a party is likely to be unable . . . to appear personally or by a legal representative to present oral argument, the Court may direct that the party’s case be considered on the basis of his or her summary of argument ‑ ‑ ‑

GUMMOW J:   Yes, thank you.

MS MAHARAJ:   And we would respectfully ask your Honours to do that.

GUMMOW J:   Yes, we are minded to proceed in that fashion.

MS MAHARAJ:   If it please your Honours.

GUMMOW J:   Yes.  Now, what then would you wish to say?

MS MAHARAJ:   Your Honours would see that we have filed our summary of argument and your Honours will notice that we have identified to your Honours that the primary judge and the Full Court were of the view that the old condition 8202 and the new condition 8202 had a subclause which is (3)(c) and (3)(d) respectively which could not be met by this applicant on the facts of this case.

GUMMOW J:   Yes.

MS MAHARAJ:   Therefore, the dismissal of the application was inevitable and there is no merit in the application for special leave.

GUMMOW J:   Thank you.

MS MAHARAJ:   Accordingly, we would ask your Honours to dismiss the application with costs.  If it please your Honours.

GUMMOW J:   Thank you.

An application for adjournment of the further consideration of the application for special leave has been made.  We would refuse the application on the footing that in any event the prospects of success of the application for special leave to appeal itself are so slight as to warrant its dismissal. 

Accordingly, we refuse the application for adjournment and dismiss the application for special leave with costs.

AT 2.34 PM THE MATTER WAS CONCLUDED