SZSUS v Minister for Immigration and Border Protection

[2015] HCATrans 36

[2015] HCATrans 036

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S252 of 2014

B e t w e e n -

SZSUS

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for order to show cause

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 18 FEBRUARY 2015, AT 9.57 AM

Copyright in the High Court of Australia

SZSUS appeared in person.

MR J.S. MITCHELL:   If it please the Court, I appear for the first respondent.  (instructed by Sparke Helmore Lawyers)

SAIBAL KUMAR DUTTA, affirmed as interpreter.

HIS HONOUR:   Sir, you have an application before the Court to reinstate an application for special leave to appeal which has been deemed to be abandoned.

SZSUS (through interpreter):   Yes.

HIS HONOUR:   You have filed some papers in support of that application.  I have read those papers.

SZSUS (through interpreter):   Yes.

HIS HONOUR:   This is your opportunity, if you wish, to say anything more in support of your application.

SZSUS (through interpreter):   Yes.

HIS HONOUR:   Please say anything now you wish to say.

SZSUS (through interpreter):   Your Honour, I have nothing to say.  I have earlier described what happened, what I have already mentioned; I have nothing more to add onto it.  All I want to mention at the moment is the situation in Bangladesh is dreadful, I have high risk if I return back, so I am unable to return to Bangladesh due to the current circumstances.  That is all, your Honour.

HIS HONOUR:   Yes, thank you very much.  You can sit down.  I do not need to hear from you, Mr Mitchell.

The applicant moves on the summons dated 14 November 2014 by which he seeks reinstatement of an application for special leave to appeal which was deemed to be abandoned by operation of rule 41 of the High Court Rules.  The decision sought to be appealed from was given on 22 August 2014.  The application for special leave to appeal was filed on 17 September 2014.  The application was deemed to be abandoned on 15 October 2014 and a notice to that effect was issued on 23 October 2014.

The applicant relies on affidavit evidence in which he deposes to being unwell in the period between 14 and 17 October 2014, which he says prevented his appearance in this Court on 15 October 2014.  There are no documents filed in support of the statement in his evidence that he was unwell.  His evidence is not responsive to the basis on which his application for special leave to appeal was deemed to be abandoned, being his failure to file a written case as required by rule 41.10.3(c).  His short illness, accepting what he says about being unwell, does not adequately explain his failure to file a written case, a failure which is ongoing.

The first respondent, the Minister for Immigration and Border Protection, has filed written submissions in which he rightfully makes no claim that he would be prejudiced by the reinstatement of the application for special leave to appeal.  He does, however, oppose the granting of an indulgence on the basis that the applicant has failed adequately to explain his failure to comply with rule 41.10.3(c) and that the application for special leave has no merit and otherwise gives rise to no issue of public importance.

I do not find it necessary to address the merits of the applicant’s proposed appeal were special leave to appeal to be granted.  It is sufficient in that respect to note that the application raises no issue of public importance and there is nothing in it which would suggest that the interests of justice in the individual case demand a grant of special leave to appeal.

The application appears, on its face, to do no more than to canvass the detail of the reasoning of Justice Siopis who, in the Federal Court, dismissed an appeal by the applicant from a decision of the Federal Circuit Court of Australia constituted by Judge Emmett dismissing the applicant’s application for judicial review of a decision of the Refugee Review Tribunal. 

Given the applicant’s failure adequately to explain his failure to file a written case within the prescribed timeframe I am not persuaded that I should exercise my discretion to reinstate his application for special leave to appeal.  I dismiss the applicant’s summons with costs.

The Court will take a short adjournment.

AT 10.06 AM THE MATTER WAS CONCLUDED