SZIDH v Minister for Immigration & Citizenship & Anor

[2007] HCATrans 269

[2007] HCATrans 269

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S144 of 2007

B e t w e e n -

SZIDH

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 28 MAY 2007, AT 10.06 AM

Copyright in the High Court of Australia

MR D.H. GODWIN:   If the Court pleases, I appear for the first respondent.  (instructed by DLA Phillips Fox)

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   I think I need not trouble you, Mr Godwin.

On 5 December 2005 the Refugee Review Tribunal affirmed a decision by a delegate of the first respondent not to grant a protection visa.  It did so by reason of the vagueness of the application, the failure to explain the applicant’s delay in leaving India and the failure to explain why, if his life were threatened in communal riots in 2002, he failed to move until 2005.  The applicant did not attend the hearing despite having been invited to do so.

On 6 December 2006, the Federal Magistrates Court, Federal Magistrate McInnis, refused an application by the applicant to reinstate an application for judicial review which had been dismissed because of the non-appearance of the applicant.  The magistrate did so because reinstatement would be futile there being no reasonable prospect of success in demonstrating jurisdictional error in what the Tribunal did.

On 2 March 2007, the Federal Court of Australia, Justice Jessup, dismissed an application for leave to appeal on the ground that an appeal would lack sufficient prospects of success.  On 26 March 2007 the applicant filed an application for special leave to appeal to this Court but failed to file a written case within 28 days as specified in the High Court Rules.  It has still not been made available.  In consequence, the special leave application is deemed to have been abandoned under rule 41.10.4. 

By summons of 11 May 2007, the applicant now applies to reinstate the special leave application and to have his wife included as an applicant.  His explanation for the default is that he is not a lawyer, he is not legally represented because of poverty, he lacks English language skills, he could not pay for translating and interpreting services and he was unable to avail himself of free services of this kind from Indian students.

The matter was called outside the Court shortly after 9.15 this morning but there was no appearance.  The matter was called outside the Court again shortly before 10 am and there was no appearance.  The applicant was advised both in writing and orally by an officer of the Registry last week of the fact that today was the return date of the summons which he filed on 11 May 2007.  In the circumstances, there is no reason not to proceed with the hearing.

Even assuming the explanation given by the applicant is satisfactory, the summons should be dismissed.  It would be futile to reinstate the special leave application since if special leave were granted, the appeal would inevitably be dismissed.  The Tribunal did not fall into any jurisdictional error.  Accordingly, the summons is dismissed with costs.

AT 10.10 AM THE MATTER WAS CONCLUDED