SZNPG v Minister for Immigration and Citizenship and Anor [2011] HCATrans 58

[2011] HCATrans 58

[2011] HCATrans 058

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S156 of 2010

B e t w e e n -

SZNPG

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MARCH 2011, AT 12.19 PM

Copyright in the High Court of Australia

MR B.D. O’DONNELL:   Your Honour, I appear for the applicant.  (instructed by the applicant)

MR S.B. LLOYD, SC:   If the Court pleases, I appear with MR T. REILLY, for the Minisiter.  (instructed by DLA Phillips Fox Lawyers)

GUMMOW J:   Thank you. 

MR O’DONNELL:   Your Honour may have been informed that I was briefed some two hours ago in this matter although I did appear below.  I have not contacted the applicant since I appeared below.

GUMMOW J:   Yes.

MR O’DONNELL:   I make an application formally for an adjournment to give me time to prepare.  All I can say is that I have only just been briefed.  I have been familiarising myself with the papers in the time I had available.

GUMMOW J:   Yes.  It is obviously of great assistance to us if we have your appearance.  In the time of any adjournment that was granted you would be preparing written submissions, I suppose?  Could you give us any idea of how long you would need for those?

MR O’DONNELL:   I would like two weeks.  I could probably do it in one, depending on the ‑ ‑ ‑

GUMMOW J:   Yes.  Two weeks sounds more sensible.

MR O’DONNELL:   As I said, I did argue the matter below so I have some familiarity with ‑ ‑ ‑

GUMMOW J:   Can you just indicate – do you have the application book by any chance?

MR O’DONNELL:   Yes.  I only got it about half an hour ago but, yes, I have it.

GUMMOW J:   Can we just draw your attention to one matter that is on our mind?  At page 22, paragraph 4 there is a recital by the federal magistrate of what the delegate decided:

The delegate accepted that the applicant was a Christian and that he was harmed by fanatic Hindus in Andhra Pradesh, however he concluded that this amounted to private persecution and on the basis

of independent country information considered that the applicant could obtain effective protection in India and that he could relocate –

Did that issue emerge again in the Federal Court?  I am not asking you to answer it now.  Did that issue emerge in the Magistrates Court and again in the Federal Court?

MR O’DONNELL:   It did not emerge in the Federal Court.  I would have to check, I did not appear in the Magistrates Court.  I would have to check the papers but I do not recall that it did.

GUMMOW J:   All right.  One worry, perhaps, is at the end of the day if this did go back to be done again would not this issue then emerge?

MR O’DONNELL:   The question of relocation?

GUMMOW J:   Yes.

MR O’DONNELL:   Yes ‑ ‑ ‑

GUMMOW J:   Do not answer it now.

MR O’DONNELL:   All I can say on that is that was not the basis for the RRT’s decision.

KIEFEL J:   Yes, but if the matter went back the delegate’s decision might be upheld on that basis.

MR O’DONNELL:   I understand the issue your Honour is raising.

GUMMOW J:   That may be a factor in weighing up whether to grant special leave.

MR O’DONNELL:   I understand.

GUMMOW J:   Do you oppose an adjournment, Mr Lloyd?

MR LLOYD:   I do, your Honour, yes, because as we understand the position ‑ ‑ ‑

GUMMOW J:   You would much rather prefer us to proceed without the assistance of counsel, would you?  Is that the Minister’s position?

MR LLOYD:   No, your Honour.  Obviously, the Court has some interest in the matter because it has identified this as a matter of some substance.  If there is substance in it and the Court is inclined to grant special leave let it

be so and if there is no substance in it then that can be disposed of.  Mr O’Donnell did appear below and there is no indication and no evidence that [the applicant] made any efforts to contact him prior to today and so we say on that basis there should not be an adjournment.  If your Honour is not with us on that we would ask for an order for costs thrown away in relation to preparation for today, if there is to be an adjournment, and although the Court is not, I know, generally interested in such matters, I am instructed by the Registrar that the next special leave date in Sydney is on 8 April which neither my junior nor I can appear at.

GUMMOW J:   The next after that is Friday, 13 May.  Are you available then?

MR LLOYD:   I will already be here then, your Honour, yes.

GUMMOW J:   You are?

MR LLOYD:   I am, yes.

GUMMOW J:   What about you, Mr O’Donnell?

MR O’DONNELL:   Your Honour, yes, I am.  Your Honour, I do not mean this as a criticism to my friend and there is no evidence of this but I will say from the Bar table, as I understand it, the applicant did try to contact me while I was on holidays and had no success.  That is what my client tells me.

KIEFEL J:   Are you asking to put over the question of costs?

GUMMOW J:   I would have thought so.

MR O’DONNELL:   Yes, I am asking to put over the question of costs.

GUMMOW J:   This application will be adjourned into the list for Sydney on Friday, 13 May 2011.  In the meantime the applicant has leave to file and serve on or before 1 April, I think, an amended outline of submissions.

MR O’DONNELL:   Does your Honour give me leave to put on an amended draft notice of appeal?

GUMMOW J:   An amended draft notice of appeal, yes.  Then the Rules, if you need to use them, can operate to deal with the Minister’s response.  Costs of today will be costs of the special leave application.  Is there anything else?

We will adjourn until 10.15 am on Tuesday, 29 March in Canberra.

AT 12.26 PM THE MATTER WAS CONCLUDED