VGAU v MIMIA

[2005] HCATrans 57

[2005] HCATrans 057

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M78 of 2004

B e t w e e n -

VGAU

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 FEBRUARY 2005 AT 2.01 PM

Copyright in the High Court of Australia

VGAU appeared in person.

MR W.G. GILBERT:   If the Court pleases, I appear for the respondent.  (instructed by Blake Dawson Waldron)

KIRBY J:   Now you are the applicant in these proceedings and we identify you as VGAU so that there will be no record of your name.  Do you understand that?

VGAU:   Yes, I do.

KIRBY J:   Thank you very much.  Now, there is an interpreter present.  Do you need the interpreter to speak for you?

VGAU:   No, I do not need – no, thank you.

KIRBY J:   Very well.  Thank you for coming to the Court today, and if we need your help during the proceedings we will let you know.  Thank you very much.  Yes, well come to the middle so that it can be recorded, and just tell us what you want to say.

VGAU:   Your Honour, last week I requested to give me some more time to prepare for my hearing.  That is because before I was trying to get some lawyer or something to help me in the – like making my case.

KIRBY J:   So you are asking for an adjournment of the proceeding today, are you?

VGAU:   Yes please, if I could get.

KIRBY J:   What is the attitude of the Minister to this application?

MR GILBERT:   That is opposed, your Honour.

KIRBY J:   Yes.  Why should we give you the adjournment?  Your case has been listed today, I think you have been sitting in the Court, you see how busy it is and because your case is on today, you have kept out of the list somebody who could have had their case heard.  So why should we give you the adjournment?

VGAU:   I requested to one week ago your Honour, because like I do not have a lawyer or ‑ ‑ ‑

KIRBY J:   You will have to speak up, I am afraid.

VGAU:   I do not have lawyer or anything, and I am not allowed to work, so I could not hire any lawyer.  I was trying to get some free help or something, but like this week I found a lawyer who is going to help me.  He is not going to represent me, but he is going to help me make my case.

KIRBY J:   Yes, but when were you first informed that the case was going to be heard today?

VGAU:   One month ago.

KIRBY J:   You have had a month, but you have known that the matter was coming up to the Court.  Why did you not endeavour to get a lawyer earlier?

VGAU:   That time, your Honour, I was trying to – my friends gave me some money to hire a lawyer but that money was not enough.

KIRBY J:   Yes.

VGAU:   This is my last chance to prove my case.  After that, if I lose here, I have to leave the country.

KIRBY J:   I think you have sworn an affidavit which is dated 4 February 2005, and you are relying on that affidavit for your application for adjournment.  Is that correct?

VGAU:   Yes.

KIRBY J:   Have you seen that affidavit of the applicant, Mr Gilbert?

MR GILBERT:   Yes, I have, your Honour.

KIRBY J:   And do you have any objection to the formal reading of the affidavit?

MR GILBERT:   No, your Honour.

KIRBY J:   Yes, very well.  Do you want to cross-examine the applicant on the affidavit?

MR GILBERT:   No, I do not wish to do that, your Honour.

KIRBY J:   Thank you.  Is there anything else you wish to say in support of the application for the adjournment?

VGAU:   Well, I would like to say, your Honour, that like this is my last chance, so I lost from my…..I request in Federal Court, Federal Magistrates Court to give me a lawyer, but I did not get any lawyer.  Over there I did not request for any further time or something for extension, but this is my last chance, and ‑ ‑ ‑

KIRBY J:   Well, I realise that, but it is the last chance for other people to have their case heard and you have just left the matter in the list, and now at the last moment, you ask for an adjournment of the case.  You are not now in a Magistrates Court, you are in the High Court of Australia, which is the highest Court in this country, and so far as I am concerned, the grounds that you disclosed in your affidavit are not sufficient to adjourn the proceedings.  You can obviously speak English and communicate quite well.  We have all the written documents, so I think you should assume that you have to proceed with the matter today.  Just a moment.  That is the view of both Justice Hayne and myself, that you have to proceed with the application.

VGAU:   Then I got nothing to say, your Honour, for my case.

KIRBY J:   We have the written document that you have prepared, and we have seen those arguments.  We will hear what the Minister has to say and you can sit down, and then if you wish to, you can answer what the Minister’s barrister has to say in the proceedings.

VGAU:   Yes.

KIRBY J:   Yes, Mr Gilbert.

MR GILBERT:   Thank you, your Honours.  Your Honours, it is submitted that there is no special leave point that arises for determination in this case.  Essentially, both before Justice Crennan and also before the then Chief Federal Magistrate Bryant, the matters that were sought to be agitated were seen to be matters of fact which were open to the Tribunal.

KIRBY J:   The applicant got out of time for the appeal to the Full Court of the Federal Court constituted by Justice Crennan.

MR GILBERT:   That is so, your Honour.

KIRBY J:   Now, I know from other cases that there is a question, which sometimes the Minister seeks to argue and sometimes not, as to whether that gives rise to an appeal to this Court.  That is not a matter that you are pressing in this case?

MR GILBERT:   That is so, your Honour.

KIRBY J:   Yes, very well.

MR GILBERT:   And in the circumstances of this case, the delay was a relatively short period, I understand.  It may have only been a week, and as appears from Justice Crennan’s decision, the applicant thought that it was 28 days where it was 21.

KIRBY J:   Yes, it is easy enough to make that mistake.  I made it once myself when I was a young solicitor, so I am a bit sympathetic to the time problem, but you say that essentially the applicant is simply reagitating the merits of the case.

MR GILBERT:   Yes, that is so, your Honour, and there were strong findings in the Refugee Review Tribunal in relation to matters of credit, in particular in terms of the capacity to have protection from the local authorities, and also finally, the question of relocation, so on multiple bases the Tribunal decided the matters against the applicant.  In the matter before the Chief Federal Magistrate the applicant had the assistance of representation for the purpose of preparing contentions and an amended application, but ultimately appeared unrepresented, and her Honour dealt thoroughly with those grounds in the applicant’s application and contentions. 

In the matter before Justice Crennan, the applicant’s grounds of appeal were different, although her Honour appears to have dealt with it almost on the same basis as the Chief Magistrate then did, the ultimate conclusion being that the findings were open to the Tribunal and that essentially, the applicant was seeking to reagitate the facts.

KIRBY J:   The basis of the alleged persecution or well-founded fear of persecution is, I take it, his political association with the student political party.

MR GILBERT:   Yes.

KIRBY J:   That is as you understand it?

MR GILBERT:   Yes.

KIRBY J:   And that political party was associated with the BJP, which until recently was the leading party in the government of India.

MR GILBERT:   Yes, that is so, and one of the other matters that the Tribunal addressed was the fact that it was a student election only, and that what had occurred or was said to have occurred to this applicant, nothing had happened to the actual candidate whom he was supporting.  A critical

aspect of the decision against the applicant was that his claim was that after the election he was harassed and threatened and beaten and the Tribunal did not accept that, in part on the basis that shortly – and he said that he had been to hospital, and shortly after that, he was examined by a doctor for the purpose of his student visa application to Australia, and the doctor had not noted any injuries, and that was part of the basis for the Tribunal reaching the decision that it did, apart from other aspects of implausibility, in terms of his profile and in terms of the matter that your Honour Justice Kirby just indicated.

KIRBY J:   Yes.  Is there anything else?

MR GILBERT:   No, I do not believe so, your Honour.

KIRBY J:   Thank you.  What do you have to say in reply?

VGAU:   Nothing, your Honour.

KIRBY J:   This is an application for special leave to appeal from the Full Court of the Federal Court of Australia, constituted by Justice Crennan, in a matter arising under the provisions of the Migration Act 1958 (Cth) dealing with refugees. Earlier, the Minister’s delegate and the Refugee Review Tribunal refused the applicant a protection visa. In the Federal Magistrates Court, Chief Magistrate Bryant dismissed an application for review. The applicant then became out of time to appeal to the Federal Court. He sought an extension of time and Justice Crennan rejected the application on the basis that there was no error of law, still less a jurisdictional error, shown in his case.

In this matter, an application was made for the adjournment of the proceedings.  However, the Court was of the view that the matter should proceed in its proper place in the list.  Accordingly, the matter proceeded to hearing, essentially on the papers that have been presented by the applicant. 

The Court has read those papers.  We are of the opinion that the application fails.  We do not, in this case, have to decide whether an appeal would lie from the order made by Justice Crennan for the Full Court.  It is sufficient to say that there is no indication on the record of an error of law, still less an error of jurisdiction, on the part of the Federal Court.  The case is essentially an attempt to reargue the merits of the applicant’s claim, and that cannot be permitted in an application for review, in particular, in this Court. 

Accordingly, the application for special leave to appeal is refused.  Do you ask for costs? 

MR GILBERT:   Yes, I do, your Honour. 

KIRBY J:   In accordance with the usual rule, the applicant must pay the Minister’s costs. 

MR GILBERT:   If the Court pleases. 

AT 2.12 PM THE MATTER WAS CONCLUDED