SZESA v MIMIA & Anor

[2006] HCATrans 439

[2006] HCATrans 439

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S133 of 2006

B e t w e e n -

SZESA

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Summons for reinstatement

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 14 AUGUST 2006, AT 10.05 AM

Copyright in the High Court of Australia

SZESA appeared in person.

MS T.L. WONG:   May it please the Court, I appear for the Minister.  (instructed by Clayton Utz)

HIS HONOUR:   Yes, Ms Wong.  There is a submitting appearance in accordance with the certificate of the Registrar for the second respondent, the Refugee Review Tribunal.

MS WONG:   Yes, your Honour

HIS HONOUR:   You are the applicant whom we have known by the designation SZESA?  Is that correct?

SZESA (through interpreter):   Yes, your Honour.

HIS HONOUR:   Yes, very well.  Do you need the assistance of an interpreter in the Bengali language?

SZESA (through interpreter):   Yes, your Honour.

MOHAMMED ARAFEEN, affirmed as interpreter:

HIS HONOUR:   Ms Wong, you are appearing for the Minister and you have supplied a written outline of submissions.  Thank you very much for preparing that.  That assists the Court.  Has the applicant seen the Minister’s written outline of submissions?

SZESA (through interpreter):   Yes, your Honour.

HIS HONOUR:   Very well.  What does the applicant wish to say to me?  Stand up and say what you want to say.

SZESA (through interpreter):   Your Honour, I have received a letter.

HIS HONOUR:   Yes, does the applicant wish to hand that letter to me?

SZESA (through interpreter):   I have received a letter regarding a summons and I have bring that summons document with me.

HIS HONOUR:   Yes, is that a letter from the Registry of the High Court?

SZESA (through interpreter):   Yes, your Honour.

HIS HONOUR:   Yes, well, I do not need to receive that letter because I have copies of the material from the High Court.  What I do need is your response to the arguments of the Minister.  Essentially, the Minister says that although the delay in your case is relatively short, being only eight days, that when one has regard to the basis on which the matter, your application, was disposed of in the Tribunal and in the courts below and looks at the very vague and unspecified grounds that are set out in your application to this Court that your application in this Court is bound to fail and that, therefore, I should not clutter up the Court list with your case.  What do you say in answer to that?

SZESA (through interpreter):   Your Honour, what should I say?  Whatever the decision is, just give me the decision.

HIS HONOUR:   I am here to make the decision and in this country the decision is made by hearing what the other party has to say.  In the last case the other party did not even turn up at Court, but I still made the decision in that party’s favour.  But in your case you have two weaknesses in your application.  The first is that you say in an affidavit which you have filed that you were sick between 5 and 8 June 2006, that being part of the period that you got out of time, but you have not filed or provided any medical certificate or other support for that claim. 

SZESA (through interpreter):   Your Honour, I do have the medical certificate with me.  I have submitted, but they have not accepted the medical certificate.

HIS HONOUR:   Show the medical certificate to Ms Wong.  Is there any objection to the Court receiving the certificate?

MS WONG:   No, there is not, your Honour.

HIS HONOUR:   Yes, I receive a certificate signed by Healthcare Family Medical Centre certifying that on 8 June 2006 a doctor, whose signature is interpreted by a stamp as Dr Quadsia Hasnani certified that the present applicant was suffering from diarrhoea and vomiting and was unfit for work from 5 June to 8 June 2006.  Yes.  The second weakness in your case is said to be that you do not explain in your application any basis that would justify a conclusion that the decision of the Tribunal was affected by a ground of appeal that would call for the intervention of this Court.

SZESA (through interpreter):   Your Honour, I have submitted the ground.

HIS HONOUR:   Yes, but the argument of the Minister is that the grounds are very vague and that they appear to be based on your claim of change of your religion, but that claim was not believed by the Tribunal and that an appeal court which does not see the witnesses or hear the evidence at trial could not change that conclusion.  What do you wish to say about that?

SZESA (through interpreter):   Your Honour, I do have some other documents with me.  If your Honour would like to see all those documents, I can show it to you.

HIS HONOUR:   Unfortunately, I have to deal with the matter on the basis of the documents that were before the courts below.  I cannot receive new evidence.  What is the essential unfairness that you complain of in the actions or decision of the Tribunal? 

SZESA (through interpreter):   Your Honour, as I have submitted all my documents and evidence to the RRT and they have made decisions, they are the only authority who can tell about this matter.

HIS HONOUR:   That is true and that is the problem that I have.  You see, they saw you give evidence and they were not convinced that you had changed your religion.  So what is the unfairness of the way they went about their decision?

SZESA (through interpreter):   Your Honour, the unfairness was regarding, during the course of hearing, I was unable to present some of the evidences properly. 

HIS HONOUR:   Yes.  Is there anything else that you want to say to me?

SZESA (through interpreter):   No, your Honour, nothing else.

HIS HONOUR:   Very well.  I will just hear from the representative of the Minister.  Yes, what do you say about the matter, Ms Wong?  The time delay is not very great.

MS WONG:   And also in view of the fact that the applicant has now presented a medical certificate to explain his period of illness, that does demonstrate an explanation for his failure to comply with the High Court Rules and the Minister would not submit that there was any prejudice in the delay – there is no prejudice to the Minister.

HIS HONOUR:   No.

MS WONG:   So it is now the case that the applicant has provided an explanation.

HIS HONOUR:   Yes.  Would you translate that to the applicant?

THE INTERPRETER:   Yes, your Honour.

HIS HONOUR:   Have you translated that already?

THE INTERPRETER:   Yes, your Honour.

HIS HONOUR:   You can sit down whilst I am listening to the Minister.  Yes?

MS WONG:   Yes.  However, the second basis which must be considered in determining whether to waive compliance with the High Court Rules is, as Ms Allars articulated earlier, whether the application for special leave to appeal would have any prospects of success having regard to the stringent requirements for granting of applications for special leave.  The grounds that were stated in the application for special leave do not appear to assist the applicant.

HIS HONOUR:   There is a ground which relates to the constitutionality of a provision of the Act.

MS WONG:   That is correct, your Honour.

HIS HONOUR:   Has that question ever been decided by the Court?

MS WONG:   I am not aware ‑ ‑ ‑

HIS HONOUR:   What is that section of the Act?

MS WONG:   It is section 424A and that relates to the circumstances in which the Tribunal is required to give advance notice of information which it considers may be part of the reason for deciding against an applicant. 

HIS HONOUR:   Without some more argument I would not think there would be a constitutional question there because there is no Chapter III issue.

MS WONG:   That is correct, your Honour.

HIS HONOUR: I cannot see any other issue that would cast doubt on the constitutional validity of that provision. There seems to be a second ground which asserts that section 61 of the Constitution requires an irreducible obligation of procedural fairness, but the difficulty with that provision, quite apart from the question of whether such an implication would be read into section 61 in respect of executive Tribunals, is that it would still remain for the applicant to establish on the record, or in some other way, that there was procedural unfairness. What do you understand to be the source of his complaint of procedural unfairness?

MS WONG:   There were two more particular grounds raised at the Federal Magistrates Court level and those two grounds related to, firstly, a failure to take into account certain evidence regarding whether the applicant had attended churches in Bangladesh and Australia.  That complaint, however, was very easily disposed of because of express references to that very evidence in the Tribunal’s reasons for decision.

HIS HONOUR:   Yes.

MS WONG:   The second complaint concerned the manner in which the Tribunal dealt with a claim by the applicant to have been medically unfit to attend hearing, although perhaps it was not put that high, your Honour.  It was that the applicant had suffered some memory problems and difficulties recalling events.  Once again, that was dealt with in proper terms by the Tribunal and I can direct your Honour to the passage in the Tribunal’s reasons for decision concerning that issue, if that would be of assistance.

HIS HONOUR:   Which paragraphs?

MS WONG:   Just towards the end ‑ ‑ ‑

HIS HONOUR:   The paragraphs are unnumbered, but which page.

MS WONG:   Yes, page 21 of the Tribunal’s decision under the heading “The Applicant’s health” and, in particular, the last paragraph before the heading “Summary”.  There was one letter presented from a hospital which indicated that the applicant had injuries to his right knee, right wrist, right leg, arm and middle part of head.  However, there was no current medical evidence before the Tribunal to establish that the applicant had any difficulties which would render him unfit to attend the hearing and give evidence.  In these circumstances, having regard to the two grounds that were raised before the Federal Magistrates Court which did not have any merit, and also the grounds – and I note that the applicant did have legal representation at that time.

HIS HONOUR:   He did?

MS WONG:   Yes, he did, your Honour.  Mr Ben Zipser represented the applicant at the hearing before the Federal Magistrates Court.  It is for that reason that the decision of the Federal Court of Australia to the effect that new grounds should not be allowed to be raised on appeal has some force, which it may not have had if the applicant had been unrepresented.  The grounds, aside from those which your Honour has adverted to which where grounds 1, 2 and 3, the other grounds raised in the Federal Court of Australia ‑ ‑ ‑

HIS HONOUR:   Were those grounds raised in the Federal Court, the constitutional grounds?

MS WONG:   The constitutional grounds were raised in the Federal Court but not in the Federal Magistrates Court.

HIS HONOUR:   How did Justice Conti deal with them?

MS WONG:   He stated, first, that the grounds had not been raised in the Federal Magistrates Court in circumstances where the applicant had been represented.  The point I was just referring to appears in paragraph [6], your Honour.  In paragraph [8] his Honour accepted submissions by the counsel for the Minister that these other grounds were “formulaic, as well as being without merit, especially when considered against the Tribunal’s reasons for decision”.  His Honour does specifically consider the argument of constitutional invalidity noting that the section had been construed on numerous occasions by the Federal Court and also the High Court.

HIS HONOUR:   Yes.

MS WONG:   There is also a written argument presented during the Federal Court hearing which did not appear to raise any grounds of substance, and that is referred to in paragraph [12].

HIS HONOUR:   Yes, is there anything else?

MS WONG:   No, there is nothing else.

HIS HONOUR:   Yes, thank you for your assistance, Ms Wong.  Have you explained what Ms Wong has said, Mr Interpreter, so that the applicant will understand what she has said?

THE INTERPRETER:   Yes, I have.

HIS HONOUR:   I think the applicant speaks some English so he probably understood some of it himself from the English anyway.  What does the applicant now wish to say to the Court?

SZESA (through interpreter):   Your Honour, I would like to mention to the Court that in the RRT and in the Federal Court I was unable to explain all the evidence properly, that is because I have some problem with my memory and that could be the reason they could not believe my evidence and they could not make the decision in favour of me.  The problem is very often I forgot so many things and so many events and I cannot recall all the memories.  I cannot remember some other things as well.

HIS HONOUR:   Yes, but you must understand that you are now in the highest Court of Australia and the Court cannot fix up all the problems of your case.  It has to rely on you to present a case that it can understand and see as presenting legal or jurisdictional issues that it can deal with.  You have got yourself out of time and that presents two questions.  The first is, have you explained the reason for your delay?  I would now accept in the light of your certificate that you have explained that sufficiently, but that leaves the other question, whether it would be wasting your time and the Court’s time if I were to restore the matter to the list and you have to establish that the interests of justice require or permit me to restore the matter to the list.  That means you have to be able to persuade me that that is what is required.

SZESA (through interpreter):   I have mentioned those arguments in the Federal Court and the RRT, your Honour.

HIS HONOUR:   Is there anything else that you want to say?

SZESA (through interpreter):   No, your Honour.

HIS HONOUR:   Very well, thank you.  You may sit down.

This is another application in which the applicant has become out of time for the filing of the arguments in support of an application for special leave to appeal.  He had earlier filed his application, within time, on 9 May 2006.  The time default in this case is a period of only eight days, being the period from 6 to 13 June 2006.  Initially, the applicant did not provide any explanation for the delay except an assertion, in an affidavit, that he had been sick during the interval in question. 

However, before me today, for the first time, the applicant tendered a certificate from Dr Quadsia Hasnani, a medical practitioner, to the effect that he had been suffering from diarrhoea and vomiting between 5 June 2006 and 8 June 2006.  Counsel for the Minister very correctly accepted that, on the basis of this certificate, it could now be said that the applicant had explained the delay sufficiently.  The Minister also accepted that she did not suffer any prejudice to which she could point to resist the extension of time on that ground.

Nevertheless, the Minister correctly submitted that it remained for the applicant to establish that it was in the interests of justice that his application should be reinstated.  The Rules of Court are provided for a reason.  They are designed to ensure that applications for special leave progress in an orderly and efficient manner.  They are intended to be obeyed.  As many members of this Court have said, it is the duty of the Court to uphold the Rules of Court for the efficient management of the proceedings in this Court.  As I reminded the applicant, this Court is the highest and final constitutional and appellate court of this nation.  To the extent that the Rules are not observed, the list does not operate efficiently and other litigants potentially suffer disadvantage.

Naturally, the time default being so relatively brief and an explanation having now been provided for the default sufficient to explain it at least in part, it would not require much in the way of a substantive case for me to reinstate the application and to waive the non‑compliance with the Rules of the Court.  Earlier this day in SZERD and Another v Minister for Immigration and Multicultural and Indigenous Affairs, even in the absence of the personal appearance of the applicant, I considered that on the face of the record there was a sufficiently arguable basis to warrant the restoration of the application to the list.  I so ordered.

However, when I examine the record in the present case and the three grounds of appeal upon which the applicant relies in his application for special leave to appeal to the Court, I am not convinced that the applicant has demonstrated that there are arguable grounds for the provision of an extension of time and the restoration of the matter to the list.  The three grounds on which the applicant relies are stated as follows:

“a.That the Federal Court Judge honourable R A Conti J made his judgement on 20 April 2006. His Honour failed to identify the error of law, breach of procedural fairness and jurisdictional made by the member of the Tribunal and Federal Magistrate. His Honour failed give relieves to the applicant according to the section 39B of the Judiciary Act 1903.

b.That the Refugee Review Tribunal’s decision was affected by the historic decision of the High Court of Australia:  Muin Vs Refugee Review Tribunal and Lie vs. Refugee Tribunal.

c.That, the Tribunal member did not follow the proper procedure required by the Migration Act 1958 and Migration regulations 1994 in making its decision. Thus, the procedures that were required by the Act and Regulations to be observed in connection with the making of the decision were not observed.”

As to the first ground, there is no material before me which indicates any breach of fairness or of jurisdiction on the part of the Tribunal or the Federal Magistrate or of Justice Conti.  On the contrary, those matters to which the applicant in his earlier application specifically referred, as constituting unfairness on the part of the Tribunal or the Federal Magistrate, are adequately dealt with in the reasons of those bodies.  Those reasons negate the assertion of unfairness.

As to the second ground of the proposed grounds of appeal to this Court, the reference to Muin v Refugee Review Tribunal (2002) 76 ALJR 966; 190 ALR 601 is common in applications of this kind. However, it is unsupported in this case by any reference to facts or circumstances that would attract the application of the principles in Muin.  Accordingly, that ground would not appear to be fruitful.

As to the third ground challenging compliance with proper procedures under the Migration Act 1958 (Cth) and the Migration Regulations 1994, no foundation is provided to suggest non‑compliance with any of those provisions. Essentially the applicant complains that he had converted from Islam to the Christian religion. However, the Tribunal did not accept the statement of conversion, and the issue of the treatment of apostasy in Bangladesh was also determined contrary to the applicant.

In my opinion it would be fruitless to provide the extension of time that the applicant seeks.  It would essentially just be wasting his time and the time of the Court.  Accordingly, the interests of justice do not require, or suggest, the waiver of non‑compliance with the Rules.  The application is therefore dismissed.  The applicant must pay the Minister’s costs.

Applicant, I have just given reasons which explain why I have decided the case against your application.  Those reasons will be typed up and will be available to you so that you can understand those reasons.  I have also ordered that you pay the Minister’s costs because that is the normal order that is made where a person loses their application.  They are the orders of the Court.

AT 10.36 AM THE MATTER WAS CONCLUDED