SQDB & Ors v MIMIA

[2005] HCATrans 107

[2005] HCATrans 107

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A21 of 2004

B e t w e e n -

SQDB & ORS

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 MARCH 2005, AT 10.16 AM

Copyright in the High Court of Australia

SQDB appeared in person.

MR M.J. RODER:   I appear for the Minister, your Honours.  (instructed by Sparke Helmore)

SQDB:   May I start, your Honour?  Your Honour, first of all let me thank the High Court for allowing me to appear here to state that I was denied procedural fairness and natural justice when ‑ ‑ ‑

KIRBY J:   May I interrupt you to ask whether you have provided a copy of this to Mr Roder who is appearing for the Minister?  You are now reading the oral summary of your arguments.

SQDB:   No, your Honour.

GUMMOW J:   Well, you had better proceed.

SQDB:   A Full Court hearing was conducted on the land telephone on 1 March 2004 at my residence in 2/20 Hornsey Road, Homebush West, New South Wales.  Your Honour, I did not hear and understand the whole proceedings of the Federal Court ‑ ‑ ‑

KIRBY J:   I have read this whilst we were waiting outside.  I have read your oral submission and it appears to have the defect that it is an attempt to re‑agitate the merits of your claim to refugee status.  This Court as the highest court of Australia is not a trial court.  We cannot simply rehear the matter.  We are here to correct error, specifically jurisdictional error, and that is a very limited ambit of our responsibility.

SQDB:   Yes, your Honour.

KIRBY J:   You go into your fears and your concern about your family and all of that, but that is the responsibility of the Tribunal.

SQDB:   Yes, your Honour.

KIRBY J:   Now, one basis for our intervention would be if you could demonstrate some procedural unfairness, so I think that might be the most fruitful matter that you could concentrate on.  Do you understand what I have just said to you?

SQDB:   Yes, your Honour.

KIRBY J:   What do you assert is the procedural unfairness that you suffered?

SQDB:   Because I could not hear the full hearing of the court, I could not understand the whole proceedings of the Federal Court, so I could not answer what ‑ ‑ ‑

KIRBY J:   But did you say to the court that you could not hear them?

SQDB:   I told – it is in the transcript, your Honour.

KIRBY J:   Is it in the application book?

SQDB:   Yes, your Honour.

KIRBY J:   What page?

SQDB:   It is between pages 39 to 49.

GUMMOW J:   It starts at 46, line 50, does it not? 

SQDB:   Yes, your Honour, line 40, 50 and 43 – between 40 and 45.  And then page 46 between 40 and 45.  Page 47 between 30 and 35 and lines 30 and ‑ ‑ ‑

GUMMOW J:   His Honour seems to have gone out of his way to assist. 

SQDB:   Your Honour, although it has been mentioned by the RRT member that we will not have serious harm amounting to persecution if we return to Sri Lanka either now or in the foreseeable future, page 21 ‑ ‑ ‑

KIRBY J:   Now again, you are going back to the merits of your case.  You are saying it should have been decided in a different way, but we have to concentrate on how it was decided rather than the merits, because the merits are not for us.

SQDB:   Okay.

KIRBY J:   And when I look at pages 46 to 49, you did mention that his Honour asked you:

Have you heard what Mr Tredrea has had to say?

And you said:

I could not hear much.

And then the judge went and explained really what had been said and you had a full opportunity to answer, so I do not think there is any real substance in the fact that you could not hear the matters below, because the judge explained what you had to deal with.  He says:

The real issue is whether you have an arguable case if I give you leave for an extension of time. 

You answered that, so you obviously heard that, and then the judge decided that you did not have an arguable case within the limited powers of the Federal Court.  So what is the procedural unfairness that you are alleging?

SQDB:   Because I was not allowed to argue on my points because I did not hear ‑ ‑ ‑

KIRBY J:   That may be because you were trying to argue about the merits of the decision of the Tribunal, but under the law of Australia that is the decision that has to be made by the Tribunal.  The courts can only interfere in very limited grounds and this Court would only interfere in very limited grounds if you could show that there was some misunderstand by the Federal Court of its function or some unfairness to you.  Do you understand what I am saying to you?

SQDB:   Yes. 

KIRBY J:   What is the basis on which you are seeking to have us intervene in the matter?

SQDB:   No…..RRT statement contradicts what the ‑ ‑ ‑

KIRBY J:   Well, I have read your statement and it really repeats substantially what you said in the written submission before, but most of it concerns what you assert is your fear, that your younger sister went missing, that if your daughters and your wife went back to Sri Lanka they would get killed, but these are the matters you had to fight out before the Tribunal.  It is not something we sit here to hear and determine.  We are only here to correct the Tribunal and the Federal Court.

SQDB:   Very well, your Honour.

KIRBY J:   It is difficult sometimes to explain this, but we cannot decide the case because we do not see the witnesses and we do not hear all of the material.  We are here to correct mistakes in the way cases are decided.  Do you understand what I have been putting to you?

SQDB:   Yes.

KIRBY J:   Within that very limited area where we can intervene, what is your complaint?

SQDB:   My main complaint is that the RRT has said we do not have well‑founded fear which I say that we have a well-founded fear according to my argument.

KIRBY J:   Is there anything that you want to add to the material in the written document that you have handed in, even though Mr Roder does not have it?  I would describe it as a statement of what you say occurred to your family in Sri Lanka and to other people in Sri Lanka that you assert gives rise to your well-founded fear of persecution if you and your two daughters and wife are sent back to Sri Lanka.

SQDB:   Yes, your Honour.

KIRBY J:   Well, as I have said to you, these are matters which under Australian law have to be decided by the Tribunal, not by us.  We are not a trial court, we are a court to correct mistakes.

SQDB:   Your Honour, that is why I say.  The Tribunal has made a mistake in giving the decision.

KIRBY J:   I think you can take it we have read the written document and we thank you for having prepared that because that makes it easier to understand your case.  But the difficulty, as Justice Selway I think pointed out, was that you do not really have an arguable case.  If I had been sitting at trial, maybe I would have taken a different view, but that is not my function, not the Court’s function.  Is there anything else you wish to add?

SQDB:   Yes, your Honour, in my understanding that the – I was not given procedural fairness and natural justice because of ‑ ‑ ‑

GUMMOW J:   We have heard what you want to say about that.

SQDB:   I have nothing to add, your Honour.

GUMMOW J:   Thank you.  Sit down, if you would, sir.  We do not need to hear from you, Mr Roder. 

The respondent emphasises in her written submissions that this application for special leave would challenge the decision of a single judge of the Federal Court and submits that an appeal to this Court would not be competent.  Assuming competency, nevertheless we are of the view that there are insufficient prospects of success to warrant any grant of special leave in any event. 

Accordingly, special leave is refused with costs. 

AT 10.27 AM THE MATTER WAS CONCLUDED