Vichlenkova v Minister for Immigration

[2000] HCATrans 229

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S189 of 1999

B e t w e e n -

DIANA VICHLENKOVA

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for adjournment

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 26 MAY 2000, AT 9.35 AM

Copyright in the High Court of Australia

MS D. VICHLENKOVA appeared in person.  I apply for an adjournment of a hearing on the matter of my application for special leave to appeal and ‑ ‑ ‑

GAUDRON J:   We will just see if there is somebody here on the other side, Ms Vichlenkova.

MR G.T. JOHNSON:   If the Court pleases, I appear for the respondent with my learned friend, MS M. TZANNES.  (instructed by the Australian Government Solicitor)

GAUDRON J:   Is the adjournment application opposed?

MR JOHNSON:   It is, your Honour.

GAUDRON J:   Thank you.  Please continue, Ms Vichlenkova, with your application.

KIRBY J:   You rely on the doctor’s certificate, do you?

MS VICHLENKOVA:   I rely on my condition, being pregnant.

KIRBY J:   You are pregnant now and the doctor has given a certificate?

MS VICHLENKOVA:   Yes, I supported my application for the adjournment with the opinion of the doctor.

KIRBY J:   When are you expecting your child?

MS VICHLENKOVA:   In six weeks.

GAUDRON J:   But there is no particular difficulty with the pregnancy?

MS VICHLENKOVA:   The pregnancy is all right.  It is just that I am very worried about the case.

KIRBY J:   You do not want to have this extra stress at the moment and it is six weeks away.

MS VICHLENKOVA:   Yes.

KIRBY J:   Did you give notice to the other side that you were going to seek this?

MS VICHLENKOVA:   Yes.

KIRBY J:   When did you do that?

MS VICHLENKOVA:   When I did give the notice of the application?

KIRBY J:   Of your application for adjournment.

MS VICHLENKOVA:   I think on the same day when I filed it on 3 May, I believe.

GAUDRON J:   Will it not be just as stressful for you after the baby is born – perhaps more so?

MS VICHLENKOVA:   Of course, it is still stressful but now it just – it is me and my baby, both of us, and I would not wish to have any consequences of my worrying condition today.  I would rather have it myself than involving the baby as well.  I just do not want to have any consequences in future.  I do not know what might happen.  Nothing might happen at all but I am just very worried.  As is known, I think, to all of you, that stressful situations may impact the baby.

KIRBY J:   You do not have a lawyer?

GAUDRON J:   But the doctor does not say that.  The doctor does not really say that.  He does not say that there is anything abnormal about the pregnancy.  It just says it would be better for yours and the baby’s well‑being.

MS VICHLENKOVA:   Yes, and “it can be stressful for her pregnancy and may endanger her”.

GAUDRON J:   Yes, but she does not say there is anything abnormal about the pregnancy.

MS VICHLENKOVA:   No, there is nothing abnormal about the pregnancy.  It is just stressful.

KIRBY J:   How long have you been here in Australia now?

MS VICHLENKOVA:   Three years and three months.

KIRBY J:   February 1997.  And you say the marginal cost of a six-week delay is not going to be particularly significant in the case?

MS VICHLENKOVA:   For what, sorry?

KIRBY J:   The extra six weeks is not going to be so significant to the Minister?

MS VICHLENKOVA:   I do not know.  I am just worrying about the baby, so that is the only reason I am applying for the adjournment.

GAUDRON J:   Anything else?

MS VICHLENKOVA:   No.

GAUDRON J:   Yes, Mr Johnson.

MR JOHNSON:   Your Honours, with respect to the medical certificate, it does not actually say that she is suffering from any medical condition which makes her unfit to appear.

GAUDRON J:   That may be so, but one knows nonetheless, does one not, that not everybody can continue unfazed throughout an entire pregnancy?

McHUGH J:   Not everybody is as tough as Justice Gaudron.  I once appeared against her at the Bar in the High Court and she was eight and a half months pregnant.

KIRBY J:   I mean, if we apply correct principles here, what you have to look to is whether or not the additional delay of six weeks is going to cause any significant inconvenience, given that you were given notice of this, that we have an unrepresented litigant before us who has been in Australia since February 1997 and has a doctor who says that she is pregnant and that it would cause stress to her, and she is concerned about her baby.

MR JOHNSON:   Your Honour, it does not actually say that it would cause stress to her.  It uses words of possibility and suggests that it may.

KIRBY J:   But how can one know for certain?  I mean, there is a lot of material about hormonal changes that are caused by stress during pregnancy and it is at least something I would not wish, unless it was necessary, to subject the applicant to.

MR JOHNSON:   Your Honour, she has been here since 1997.

KIRBY J:   That is right.  What is another six weeks going to matter?  Here are you, with two lawyers at one end of the table, and there is the applicant unrepresented before the highest Court in the country.

MR JOHNSON:   But, your Honour, there is no suggestion that that is going to change if your Honours grant the adjournment.

KIRBY J:   That will not change but at least this impediment which she is concerned about will be removed.

MR JOHNSON:   Your Honour, the pregnancy may be removed but she says in her affidavit that she is also concerned about the possibility of an unfavourable outcome and she says in paragraph 5 of the affidavit that she is effectively seeking the adjournment to allow her to remain in Australia at least for this next period.

GAUDRON J:   Presumably she wishes to remain here till the child is born.

MR JOHNSON:   Your Honour, we would suggest that it is not appropriate for a special leave application to be used to achieve that.

KIRBY J:   What, the Minister would deport the ‑ ‑ ‑

GAUDRON J:   No, but one can understand that if she were to be unsuccessful and deported within the short term and have to undertake a very long journey elsewhere, that could indeed have very adverse effects on the pregnancy.

MR JOHNSON:   But, your Honour, that involves a whole lot of other assumptions.  There is an obligation under the Act to remove as soon as practicable.  If there was some problem which made it impracticable to remove her, then presumably the removal would be postponed.

McHUGH J:   Can I bring out into the open what may be behind the objection?  Is it that if she has the baby in Australia that the Minister will then grant her a protection visa?

MR JOHNSON:   Your Honour, that is not the underlying concern.  The concern is simply that she has been here for so long.  The application is listed for hearing.  The adjournment application, of course, was listed on the very day of the special leave application so the respondent really had no choice but to incur costs in coming along.

McHUGH J:   She gave you notice on 2 May.  Had you agreed then, presumably by consent and an order in chambers, the matter would have been adjourned out of today’s list, two lawyers would not be here and the matter would not have concerned the Court, we would not be taking up our time with it?

MR JOHNSON:   That is true.  It still leaves the other matters that I have referred to, however, including the fact that there is not any medical evidence actually saying that she is unfit to appear.

KIRBY J:   Can I just get clear what Justice McHugh asked you:  does her position in any way alter, under Australian law, if she gives birth to a child, having regard to the provisions in the refugee law concerning families being kept together?

MR JOHNSON:   Not automatically, as I understand it.  She can put on another application for another kind of visa at any stage, and I would not like to predict what the outcome of any further application might be.  But as far as this refugee application is concerned, your Honour, once special leave is refused, well then that is the end of that.

KIRBY J:   And the Minister would be intending to deport the applicant immediately after that decision today, even though she is in an advanced state of pregnancy.  Do you know that?

MR JOHNSON:   I have no instructions as to whether there are removal arrangements actually in situ.  I would be surprised if there were.  There is an obligation under the Act to remove as soon as practicable, and that question would need to be looked at by the authorities as to when it was practicable to remove her.

GAUDRON J:   That certainly, though, would explain paragraph 5, would it not?

MR JOHNSON:   Yes.

GAUDRON J:   That if she is unsuccessful, she wishes to take some further actions but she will not be in any condition to take them.

MR JOHNSON:   The medical evidence certainly does not suggest that she is not in a position to make such ‑ ‑ ‑

GAUDRON J:   Well, if she is in hospital, for example.

MR JOHNSON:   She is not in hospital.

GAUDRON J:   Let us be frank about this.  We are at a stage of pregnancy where, although one understands there is an expected delivery date, we are at a stage when labour could commence any day. 

MR JOHNSON:   That might be so, your Honour, but the special leave application will be resolved today.

GAUDRON J:   But that explains paragraph 5.

MR JOHNSON:   Yes.

GAUDRON J:   That being the case, she does not know that she is in a position, if she is unsuccessful, to make further application under the Act.

MR JOHNSON:   No explanation is presented why she cannot immediately take such steps ‑ ‑ ‑

GAUDRON J:   It is at paragraph 5 of the affidavit.

MR JOHNSON:   Your Honour, all that paragraph 5 of the affidavit says is that if she loses, her immigration situation will require her to take some action which “I will not be in condition to take”.  She does not specify some particular action that she has in mind, or establish that she is unable to take it.

McHUGH J:   Yes, but the decision in this case will be one of the fundamental turning points of her life in that she will either, on one view, stay here, or be sent back to Russia.  Why, in those circumstances, should she not have the opportunity to present her argument when she is in the best possible physical and mental condition that she can be?

MR JOHNSON:   I really do not think that I can add any more than what I have already put.  The short answer is that we say that the medical evidence before your Honours simply does not show her to be under any actual incapacity today.  That is the only answer I can give, your Honour.

GAUDRON J:   Yes, Mrs Vichlenkova, the adjournment will be granted.  I am in no position to tell you when the matter will come on for hearing, but it will not be a long delay, you understand, and you will have to proceed on the next occasion no matter what, I should think.  So if you would keep in touch with the Registry to find out.

KIRBY J:   Mr Johnson, may I ask you if you had succeeded, would the Minister have asked for costs in the way that is normally done when the Minister succeeds before this Court?  Would you have asked for costs?

MR JOHNSON:   Not on this particular application, your Honour, because we would have assumed that the special leave application ‑ ‑ ‑

KIRBY J:   Because that is the matter which would have proceeded later today.

MR JOHNSON:   That is right, your Honour.

KIRBY J:   But as the Minister usually asks for costs and secures costs, why should costs not be ordered against you for resisting this application?  They would not be great costs because the applicant is unrepresented, but why should she not get such costs as she is entitled to for today?

MR JOHNSON:   Your Honour, I have nothing to say in opposition to that, given that the special leave application will not now be proceeding today.

GAUDRON J:   By majority, there will be no order as to costs.  More particularly, each side will bear their own costs of today’s adjournment application, and of today.

You are free to leave now, Ms Vichlenkova.

AT 9.49 AM THE MATTER WAS ADJOURNED
TO A DATE TO BE FIXED