SZIRO & Ors v Minister for Immigration and Citizenship & Anor

[2007] HCATrans 270

[2007] HCATrans 270

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S136 of 2007

B e t w e e n -

SZIRO

First Applicant

SZIRP

Second Applicant

SZIRQ

Third Applicant

SZIRR

Fourth Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Summons for reinstatement

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 28 MAY 2007, AT 9.30 AM

Copyright in the High Court of Australia

__________________

SZIRO, the first applicant, appeared in person.

SZIRQ, the third applicant, appeared in person.

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

RAJUL ZAVERI affirmed as interpreter:

HIS HONOUR:   The Registrar has certified that he has been advised by the solicitor for the second respondent that the second respondent will submit to the order of the Court, save as to costs.  I take it it will be the first applicant who will be presenting the argument.  Could you tell him that I have read all the papers that have been filed and could you ask him whether there is anything he wants to add to what appears in those documents.

SZIRO (through interpreter):   I wish to tell your Honour that I did not get the invitation from RRT.  That is why I could not attend RRT and that I want to say in my case.  If RRT has any proof that they had sent me a letter then I would like to see that proof because I could not get the letter.  At each and every court I was given only one reason that I was absent in RRT so I want to make that clear.

HIS HONOUR:   Could you just repeat what you said then.

SZIRO (through interpreter):   Each and every court, in Federal Court also, another court also I was given only one reason to remove my case that means I was not in RRT so I did not attend my interview in RRT.

HIS HONOUR:   Were not in?  You use a word I cannot quite catch, just say again what you have been saying.

SZIRO (through interpreter):   In all courts I was given one reason that I did not attend RRT.

HIS HONOUR:   RRT, Refugee Review Tribunal, yes, I see.  Thank you.  You were saying there is a document which the first applicant says he did not receive.  What is that document?  I have been handed a copy of a document dated 23 April 2007 which is called “The Applicant’s Written Case”.  That document is the one which was filed late, was it not?

[INAUDIBLE]

HIS HONOUR:   Right, but earlier on he said something about a document which he did not receive.

SZIRO (through interpreter):   Refugee Review Tribunal’s invitation of hearing.

HIS HONOUR:   I see.  Yes.  Is there anything else that he would wish to say in support of this application?

SZIRO (through interpreter):   I did not get justice from RRT because my hearing was listed on…..and they dismissed my hearing without giving me an opportunity to attend it and they send me – this is an on time default.  This is a question of my life and they did not give me an opportunity.

HIS HONOUR:   Yes, I see.  Anything else?

SZIRO (through interpreter):   A lot of people they do not defend hearing of RRT and they are given some opportunity to attend it again and why did not I get that?

HIS HONOUR:   Yes, anything further that he wishes to add?

SZIRO (through interpreter):   It means that my facts are true.  It means like what I have claimed in my claim letter so I have fear of my life and my life is at risk in my country.  That is all I want to.

HIS HONOUR:   Thank you.

SZIRO (through interpreter):   I want to give some articles of newspapers which resembles to my case.

HIS HONOUR:   Yes, I have read those.  Is there anything else that he wishes to ‑ ‑ ‑

SZIRO (through interpreter):   I would like to request to your Honour that if I get an opportunity to attend Refugee Review Tribunal’s hearing again so I would like to submit the proofs, whatever I have, to the Tribunal.  If you are not giving me this opportunity to go to RRT again, then I feel that I have not got proper justice from here.

HIS HONOUR:   Anything else he wishes to say?

SZIRO (through interpreter):   His daughter wants to say something.

HIS HONOUR:   Yes.  What does she want to say?

SZIRQ:   I was only about to lodge the application.  I was late.

HIS HONOUR:   You could come to the centre and speak into that microphone and speak loudly.

SZIRQ:   Yes, your Honour.  I failed to lodge the application in the High Court – just one at a time – because of my parents are living – at that time my parents were living at Queensland and I was the only person who was living in Sydney and I got a letter and then after I went to the lawyer and they misguide so I could not lodge the application so I was failed to lodge the application in the High Court.

HIS HONOUR:   Thank you.

SZIRO (through interpreter):   No, that is all, your Honour.

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

MR GODWIN:   If it please the Court.

HIS HONOUR:   On 24 February 2006 the Refugee Review Tribunal affirmed a decision by a delegate of the first respondent not to grant the applicants protection visas on the grounds that the claims of political persecution which they made were vague.  Despite an invitation to do so they did not attend the hearing and did not tell the Tribunal that they had any difficulty in doing so.  The first applicant claims not to have received any invitation to attend the Tribunal.

On 12 October 2006 the Federal Magistrates Court, Federal Magistrate Scarlett, dismissed the applicants’ application for judicial review.  On 26 February 2007 the Federal Court of Australia, Justice Heerey, dismissed an appeal.  On 26 March 2007 the applicants applied for special leave to appeal to this Court.  However, the applicants did not file their written case and draft notice of appeal before the time specified by the High Court Rules, namely, 23 April 2007.  This was despite having been informed of that time by a letter from the High Court Registry which one of the applicants received on 14 April 2007.

This morning the first applicant’s daughter claimed that it was she who was charged with the task of lodging the special leave application, but failed to do so by reason of having been misled by some lawyers.  In consequence of the default, the special leave application is deemed to have been abandoned under rule 41.10.4 of the High Court Rules.

The applicants now apply by summons dated 8 May 2007 to reinstate the application in their written materials.  The applicants claim that the failure was due to what were called exceptional circumstances, namely, the first applicant’s lack of representation, his lack of knowledge about how to prepare the documents and the need for more time to find a “legal person from our community” to prepare them.  That may be compared and contrasted with what the first applicant’s daughter said this morning.

Whether or not these explanations are adequate, it is true that the period of default in seeking to file the documents is very short, although by 23 May they had not been served on the first respondent.  Despite that, however, the application should be dismissed because, even if the application for special leave were reinstated, it would have no prospect of success.

The claimed non‑receipt of the Refugee Review Tribunal’s invitation was not raised before the Federal Magistrates Court.  It was raised before Justice Heerey.  It has not been raised in the special leave application.  If it were to be raised at all, the place in which to raise it was it the Federal Magistrates Court.  There is no evidence before this Court which would enable the merits of that point to be decided and hence it must be put on one side.

The summons is dismissed with costs.

AT 9.47 AM THE MATTER WAS CONCLUDED