SZSUT v Minister for Immigration and Border Protection & Anor

[2016] HCATrans 75

[2016] HCATrans 075

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S66 of 2015

B e t w e e n -

SZSUT

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for reinstatement

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 31 MARCH 2016, AT 9.31 AM

Copyright in the High Court of Australia

SZSUT appeared in person.

MR A. MARKUS:   If your Honour pleases, I appear for the first respondent.  (instructed by Australian Government Solicitor)

RICKY SARIK WIDJAYA, as interpreter.

HER HONOUR:   Before I turn to you, sir, I am going to ask some questions of Mr Markus who appears for the Minister.  Mr Markus, just before I came on the Bench I was handed some documents which include a draft notice of appeal and written case and I was informed that these documents were in fact filed on 7 April 2015 which would tend to suggest that the deemed abandonment was an error.  Is that your understanding?

MR MARKUS:   Your Honour, as I have discovered last night, we were served those documents together with the application for special leave.  That being the case, your Honour would have seen that the applicant’s written case bears a stamp on it dated 7 April 2015.

HER HONOUR:   Yes.

MR MARKUS:   Unfortunately we did not notice this earlier - we had no real occasion to check our files.  But, your Honour, that being the case, the position is to me to be that rule 41.13.1 does not, in fact, apply, so there was never a deemed abandonment.

HER HONOUR:   Yes.

MR MARKUS:   Insofar as the summons seeks reinstatement it is not, strictly speaking, necessary.  That being the case, your Honour, really I have nothing more to add this morning.

HER HONOUR:   Indeed.  It is regrettable – it would appear it was a clerical error in the Registry, but it would seem to me, Mr Markus, that your analysis is correct that the application has not been deemed abandoned under the Rules.  That makes it unnecessary to determine the applicant’s summons for reinstatement and the matter will proceed in the usual way in accordance with the rules governing the disposition of applications for special leave by unrepresented applicants.

MR MARKUS:   Yes, your Honour.

HER HONOUR:   Thank you for your assistance, Mr Markus.  I will just explain that to the applicant. 

Sir, it appears that as the result of a clerical error your application for special leave to appeal to the High Court was wrongly marked as having been abandoned because the Court wrongly understood that you had failed to file some documents, which you had filed.  You have been put to the trouble of bringing an application to reinstate your application for special leave to appeal.  It is not necessary for me to hear your application because your original application for special leave to appeal remains on foot.  It was not abandoned for the reason that you were told. 

On the Court’s behalf I apologise to you for that error and equally to the Minister for the inconvenience that has been occasioned, but your matter will now be determined in the ordinary way in accordance with the Rules.  The summons requesting reinstatement being, as it were, otiose, I think the correct position is to dismiss it, and I so order.

MR MARKUS:   Yes, your Honour.

HER HONOUR:   Thank you for your assistance, Mr Markus.

MR MARKUS:   If the Court pleases.

AT 9.39 AM THE MATTER WAS CONCLUDED