SZMVK v Minister for Immigration and Citizenship and Anor

[2011] HCATrans 228

[2011] HCATrans 228

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S169 of 2010

B e t w e e n -

SZMVK

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for reinstatement

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 25 AUGUST 2011, AT 10.18 AM

Copyright in the High Court of Australia

SZMVK appeared in person.

HER HONOUR:   Sir, you are the applicant and do you have an interpreter sitting with you at the Bar table?

THE INTERPRETER:   Yes, madam, I am an interpreter.

HER HONOUR:   Yes.  Do I take it you are a NAATI accredited interpreter, madam?

THE INTERPRETER:   Yes.

HER HONOUR:   Sir, you may be aware that, for reasons to do with provisions of the Migration Act, you have been referred to in the proceedings by the letters SZMVK as distinct from the use of your name.  Do I take it you are the person SZMVK, that is, the applicant in these proceedings?

SZMVK (through interpreter):   Yes.

MR D.H. GODWIN:   May it please the Court, I appear for the first respondent.  I note the second respondent filed a submitting appearance on 10 August 2010, your Honour.  (instructed by DLA Phillips Fox Lawyers)

HER HONOUR:   Thank you, Mr Godwin.  Sir, you have filed a summons seeking to reinstate your application to the High Court of Australia for special leave to appeal from the orders that were made in the Federal Court by Justice Cowdroy dismissing your appeal to that court.  Do you understand that?  In support of your application before this Court today you have filed an affidavit that you swore on 2 June 2011, is that right?  I am going to ask Mr Godwin, who is appearing for the Minister, if he has any objection to any part of your affidavit.  Mr Godwin?

MR GODWIN:   No, your Honour.

HER HONOUR:   Yes, very well, I have read that affidavit.  Is there anything further you wish to say in support of your application?  What is it you want to put before the Court, sir?  I am sorry, I am having difficulty understanding you.  It may be better if you make use of the services of the interpreter.  Would you do that?

SZMVK (through interpreter):   Since 2001 I worked as a contractor in business.  I was doing my business and in the Nepal year 2069 I joined the police department, police force, where – sorry, your Honour, Nepal year 2059 I joined the police force where I was threatened and warned by the Maoist.  As a contractor I was working in that police department.  At the time the people’s war was going on.  At the time when there was people’s war going on, Maoist threatened us, warned us.  They tried to gather some information internally but we were not allowed to and we did not inform anything about it.  I was a big contractor, so they were asking for donations. 

Later in year 2060 Nepali year, I took a contract of an electricity and I went to Bara district out from the valley.  I was a contractor in Bara district, Mahottari, Dhanusa and Sindhuli.  At the time when I was working at different places I suffered a lot.  I had to donate them.  In Dhanusa also I have suffered a lot.  In Mahottari I was kidnapped.  I was able to free myself by giving them some donations.  In my total contract I have donated them more than 500,000 Nepali rupees.  I was able to finish my contract after doing this.  Then I started working inside the valley.  I started working as real contractor in Kathmandu Valley and then also different organisations of the Maoist gave me obstacles.  They asked me for donations.  In Lalitpur district also when I was a road contractor a few people attacked me.  They were from Maoist.  They took some money from me.  Still I was working as a contractor.  I got another contract.

HER HONOUR:   Sir, I am going to interrupt you for a moment to explain this to you.  You have been referring to a number of matters relating to your experiences in Nepal that you explained to the Refugee Review Tribunal.  I am aware, in general terms, of the things that you told the Refugee Review Tribunal about your experiences in Nepal because the Refugee Review Tribunal recorded them in the reasons that it gave for its determination.  This Court, like the Federal Court and the Federal Magistrates Court, has no function to determine the facts relating to your experiences in Nepal or the reasons that you are claiming a protection visa.  This Court is concerned with questions of legal error relating to the approach taken by the Tribunal to the review of your application.

The Minister for Immigration, who is represented by Mr Godwin, opposes me making an order reinstating your application.  The Minister has filed a document explaining why he opposes the making of the orders that you seek.  Have you seen that document?

SZMVK (through interpreter):   Yes.

HER HONOUR:   In summary, what the Minister says is this.  Firstly, you have delayed for nine months in bringing your application and you have not given any proper explanation as to why that amount of delay occurred before you brought the present application for reinstatement.  Do you understand that?

SZMVK (through interpreter):   I am not able to hire a lawyer for this time, your Honour, but at the time when I had a hearing at the High Court for the second appeal there we sent a fax and it was – I sent a fax but it was not accepted.

HER HONOUR:   When did you send the fax and to whom?

SZMVK (through interpreter):   People sent through the fax so it was not accepted and it was within the timeframe.

HER HONOUR:   Yes.  The second matter that the Minister raises as a reason for rejecting your application is that none of the grounds of appeal that you have identified in the application have any merit.  None would attract the grant of special leave.  Is there anything you want to say about that?

SZMVK (through interpreter):   I was also asked that why did I delay coming to Australia when I received my passport nine months earlier.  I got it March 2007 but my visa process on May 2007 only and on September 2007 I was able to come here – November, sorry, your Honour.

HER HONOUR:   I want to ask you some further questions about the fax that you sent to the Court.  Your application for special leave was filed over a year ago, on 3 August 2010.

SZMVK (through interpreter):   Yes.

HER HONOUR:   Under the Court’s rules, because you failed to take a step that the rules required you to take, that application was deemed to be abandoned on 31 August 2010.

SZMVK (through interpreter):   I was not aware that I could have respond through the fax.  I did respond through the fax within 30 days and it was not accepted.

HER HONOUR:   Mr Godwin, my attention has been directed to some correspondence on the Registry’s file which does tend to show that the applicant sent by facsimile a copy of his draft notice of appeal and written case on 31 August 2010 but there was no filing of those documents and the assertion is made in the letter that attempts had been made to contact the applicant apparently unsuccessfully.  I will hand it down to you.  You may well be aware of the contents.

MR GODWIN:   Your Honour, I have a carbon copy of a letter dated 3 September 2010.

HER HONOUR:   Yes, that is the one, Mr Godwin.

MR GODWIN:   I was actually going to tender it on behalf of the respondent.

HER HONOUR:   Thank you, Mr Godwin.  I just wanted to be sure that you ‑ ‑ ‑

MR GODWIN:   Thank you, your Honour, for informing of that.

HER HONOUR:   Yes, very well.  Sir, I see the reference in the file maintained by the Court’s staff of the fact that you did, on 31 August, send a fax to the Court and that was not accepted by the Court because it was not the proper way to file the document.  A question that arises is – and it is the matter raised by the Minister in his submission – why for nine months did you take no further action?

SZMVK (through interpreter):   Your Honour, I was not aware that I could reapply for my case at the High Court and after getting some suggestion from someone, then I was able to get information that I could reapply in here.  The decision made by the Federal Court – this is in No 31 – in one paragraph it says that I came to Australia to attend the conference but that was not only the case, but I was trying to escape from my country.

HER HONOUR:   Does that complete the matters you want to put before me today?

SZMVK (through interpreter):   In decision No 46 they said that I got my passport in March 2007 and until I left in November 2007 nothing happened to me, but that is not entirely true because the situation I suffered, I was hiding from place to place and as soon as I got my visa, I fly to Australia.  I was working as a contractor at that time.  My project was not finished.  In Kathmandu also I was running a project which I left it as it is.  I could not finish it.  I had a good profit in that one, but I had to leave.  In Nepal still now I do have a property worth $300,000 to $400,000 Australian.  With my wealth I am able to do some kind of business in Kathmandu.  Even though my parents are very sick, I am unable to go there and see them.  Last year when my daughter had an accident, I was not able to go.

HER HONOUR:   Sir, unless there are matters relating to the explanation for the delay in bringing this proceeding, or concerning the legal basis of your proposed application, there is no utility in you reciting factual matters of the sort that you have been.  Do you understand that?

SZMVK (through interpreter):   Yes.

HER HONOUR:   Is there anything further you want to put otherwise I am going to ask Mr Godwin to make his submissions?

SZMVK (through interpreter):   As I have already mentioned, your Honour, that I was not aware of the rules and regulations of the High Court and the person who I got some suggestions and some advice, he advised me that I could go and reapply to the High Court.  That is all, your Honour.

HER HONOUR:   Thank you.  Mr Godwin.

MR GODWIN:   Thank you, your Honour.  I do tender the letter of 3 September 2010 from the High Court Registry to the applicant.

HER HONOUR:   Yes.  Would you show it to the applicant, thank you?  Yes, very well.  I will mark the letter as exhibit 1.

MR GODWIN:   Thank you, your Honour.

EXHIBIT:     Exhibit 1.....Letter from High Court Registry to applicant dated 3 September 2010

HER HONOUR:   Yes.

MR GODWIN:   Your Honour, there is nothing much to add to my written submission other than that the period of the delay of nine months has not been adequately explained and that the interests of integrity of the judicial process and finality of litigation would indicate that the extension should not be granted.

HER HONOUR:   Should be?

MR GODWIN:   Should not be granted.

HER HONOUR:   Yes, thank you, Mr Godwin.  Sir, you heard what Mr Godwin has had to put to the Court.  The Minister maintains his opposition on the grounds of the nine month delay in bringing the application and because he submits that it would be futile in any event because the basis for your proposed appeal does not have legal merit.  Do you understand those things?  Is there anything further you want to put to me arising out of the letter or any other matter?

SZMVK (through interpreter):   For the past four months I have been trying to go back to my country Nepal.  Because my family was aware of that I was coming, then the village also knew that I was coming and there was an incident at my place and that incident was in the media also and I have reported that media paper to you.  I am hoping for you to consider that.

HER HONOUR:   This is an application to reinstate an application for special leave to appeal deemed abandoned under rule 41.10.4.1 by reason of the failure to file copies of the applicant’s written case, draft notice of appeal and other documents in accordance with the High Court Rules 2004. The applicant is an unrepresented applicant and is, accordingly, subject to the provisions of rule 41.10 with respect to the conduct of the application.

The applicant relies on his affidavit sworn on 2 June 2011 in support of the relief claimed.  In that affidavit he states that he was unaware of the provisions of the rules.  No other explanation is offered for the delay.  The judgment from which he seeks leave to appeal was delivered on 1 July 2010, the application for special leave was filed on 3 August 2010 and was deemed abandoned on 31 August 2010. 

On the hearing, the applicant drew attention to the circumstance that on 31 August 2010 he attempted to comply with the rules by faxing to the Registry of the Court a draft notice of appeal and written case.  By letter of 3 September 2010, the Deputy Registrar notified the applicant of matters, including that the Court rules do not provide for the filing of documents by facsimile or post.

The second respondent has filed a submitting appearance.  The first respondent, the Minister, opposes the reinstatement of the application on two grounds.  The first is the delay of nine months in bringing the present application.  The Minister does not identify any particular prejudice arising from that delay.  The second basis for opposing reinstatement is that it would be futile to make the order claimed because the grounds of the application are misconceived and do not identify any matter suitable for the grant of special leave.

The applicant is a citizen of Nepal who arrived in Australia on 6 November 2007.  On 19 December 2007, he applied for a protection visa.  The Minister’s delegate refused the application on 27 February 2008.  Thereafter, the applicant applied for a merits review of that determination before the Refugee Review Tribunal.  On 25 August 2008, the Tribunal affirmed the delegate’s decision.  The applicant successfully sought judicial review of that determination and it was set aside by order of the Federal Magistrates Court made on 14 April 2009.  The matter was remitted to a differently constituted Tribunal for determination. 

The second Tribunal affirmed the delegate’s decision following a hearing at which the applicant was represented by a registered migration agent.  The orders of the Tribunal were made on 3 August 2009.  The applicant unsuccessfully sought judicial review of the decision of the Tribunal in the Federal Magistrates Court.  He appealed from that determination to the Federal Court on essentially the same grounds as those that had been raised before the Federal Magistrate.  On 1 July 2010, the appeal was dismissed.

In the application for special leave filed on 3 August 2010, the applicant identifies three grounds of challenge to the determination of the Federal Court.  The first is a complaint, in essence, that the Tribunal should have found there was sufficient evidence to support the applicant’s claims.  That proposed ground of challenge is clearly hopeless.  The second ground complains that the Tribunal failed to accord the applicant procedural fairness.  This ground was not taken before the Federal Magistrate, when the applicant was legally represented.  It was not taken before Cowdroy J.  Nothing in the reasons of the Tribunal serves to identify a basis for the claim and it is wholly unparticularised.  The third ground is a different formulation of the first and seeks merits review of the Tribunal’s decision.  It, too, is plainly hopeless.

Given that none of the proposed grounds of appeal raise a question suitable for the grant of special leave and in circumstances in which, despite any difficulties associated with the filing of the documents in a timely fashion on 31 August 2010 the party’s delay is unexplained, it is appropriate that the application be dismissed.  For these reasons, the summons is dismissed. 

The Minister seeks an order for his costs.  Do you have anything to say about that, sir?  Is there any reason why I should not make an order that you pay the Minister’s costs?

SZMVK (through interpreter):   I do not having working rights at the moment and I do not have any funding and I am being supported by my family over in Nepal.  I have nothing at this moment.

HER HONOUR:   I order that the applicant pay the first respondent’s costs.

The Court will adjourn.

AT 11.00 AM THE MATTER WAS CONCLUDED