ACJ15 v Minister for Immigration and Border Protection & Anor

[2016] HCATrans 216

[2016] HCATrans 216

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M76 of 2016

B e t w e e n -

AJC15

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 8 SEPTEMBER 2016, AT 9.28 AM

Copyright in the High Court of Australia

AJC15 appeared in person.

MS C.L. SYMONS:   If it please the Court, I appear for the Minister.  (instructed by Clayton Utz Lawyers)

SIVAKUMAR VEERAVARMAN, affirmed as interpreter.

HIS HONOUR:   Mr Plaintiff, last time you were here without an interpreter I was about to invite you to say anything further in support of your application which you may wish.  Is there anything further that you would like to add in support of your application?

AJC15 (through interpreter):   Last interview I missed to submit some of the evidence that I would like to add now but I do not have any written documents.  I would like to give some oral evidence.  There is nothing new about this information that I am going to give but there were some details were missed during my last evidence.

HIS HONOUR:   Is that to say it is evidence that should have been given to the Tribunal but was not?

AJC15 (through interpreter):   During my Tribunal interview it was conducted through Skype and the line was not clear, there were so many instances that during my evidence the line was disrupted and I would like to give those evidence now.

HIS HONOUR:   Yes, I see.  Thank you.  Ms Symons.

MS SYMONS:   Your Honour, as I recall, a similar submission was made before the Federal Court, before his Honour Justice Rangiah, that there was evidence that should have been given and was not before the Tribunal.  The position of the Minister is that it is not appropriate in the context of this application that any such evidence be adduced, that the decision which ultimately is one that is the subject of ‑ in review is the decision of the Tribunal.  If the evidence was not put before the Tribunal at that point in time then it cannot be the subject of any development on this occasion.  So, the submission of the Minister is that any attempt by the plaintiff today to adduce such evidence should be resisted.

HIS HONOUR:   Yes, thank you.  Upon the matter coming on for hearing before me this morning the applicant has applied to give viva voce evidence of matters in support of his application which was not given before the

Tribunal whose decision it is sought to review.  It is submitted on behalf of the respondent that inasmuch as a similar application was made before the Federal Circuit Court and perhaps also to some extent renewed later it would be inappropriate now to accede to the application.

Having regard to what is disclosed in the documents in support of the application, it appears that the evidence which is sought to be given is of matters which the applicant chose not to disclose before the Tribunal but wishes now to agitate in support of his application.  In those circumstances, I consider that the evidence would be irrelevant.  The application therefore to adduce the further evidence is refused.

Mr Plaintiff, is there anything further that you would like to add in support of your application?

AJC15 (through interpreter):   I do have a CD and I do have some paper clippings about my country situation and I would like to submit those documents now.

HIS HONOUR:   Yes, thank you.  Application is made to submit country information documents and perhaps some other evidence in support of the application.  That appears to me also to be material of the kind which was not adduced before the Tribunal and, therefore, is for the purposes of this application irrelevant, thus the tender is refused.  Is there anything further?

THE INTERPRETER:   Sorry, your Honour, can you please repeat what you just said?

HIS HONOUR:   Let me put it this way.  The grounds of review before this Court are very limited.  They are limited to error of law.  In order to succeed it is necessary to establish that the Tribunal below committed an error of law.  It is not an error of law to fail to take into account evidence that was not adduced before the Tribunal.  Therefore, even if it were relevant to the application for visa it would not be a basis to succeed in this application.  Is there anything further?

AJC15 (through interpreter):   I do believe there are quite a few errors in the decision‑making.  I think you have to reconsider those errors that has been made. 

HIS HONOUR:   Are there any errors alleged other than those disclosed in the documents already filed?

AJC15 (through interpreter):   During my Skype interview for RRT interview, some of my evidence that I was given was not even properly recorded and I did ask for a CD of that recording where I could clearly see

the evidence was missing, and I did ask for a written copy of my recording, and even in my written copy some of my evidence was missing.  Based on the CD evidence and the written documents that was forwarded to me I went to some lawyers and they were advised the CD is not clear.  They asked me to forward them with the proper recording.  And even the paper based documents that were given to me, they were not very clear ‑ the letters are not very clear to see.  That is why my application got delayed.

HIS HONOUR:   Tell me please when it is that you received the CD?

AJC15 (through interpreter):   Initially my case come to the court, third month of 2015, and until that time I was not given a legal representative by the government.  I got the paper documents on 12 April and after that I contacted my lawyers.

HIS HONOUR:   12 April in which year please?

AJC15 (through interpreter):   In 2015, your Honour.

HIS HONOUR:   Thank you.  Had you engaged lawyers by the time you went to the Federal Circuit Court?

AJC15 (through interpreter):   Yes, I was looking for a lawyer but I could not find one because the documents were not clear and because of this reason I could not find a lawyer.  And I did find a lawyer named Ravi James and he charged me $700 just to get some time to get the papers.

HIS HONOUR:   When did he engage that lawyer?

AJC15 (through interpreter):   I contacted him after 12 April and he got back to me after 20 April, and even then the papers were not very clear.  And they did say they sent the documents by post but I did not receive the post, and they said they also sent me the documents through email but I did not get the emails.  I do have a copy of that email in my mobile phone.  I could not get a printout because I do not have any facility to get a printout because I am not working and I have no work rights.

HIS HONOUR:   Thank you.  Is there anything apart from that information that you wish to add?

AJC15 (through interpreter):   I would like to provide some information I got on my case, if you like me to provide, sir.

HIS HONOUR:   Yes, I see.  No, thank you, that will not be necessary.

This is an application for an order to show cause why an order in the nature of prohibition should not go to prevent the first defendant (“the Minister”) from taking any further step in reliance on a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 3 March 2015 to affirm a decision of the Minister’s delegate to recommend that the plaintiff’s application for a protection visa be refused.  Orders are also sought in the nature of certiorari to quash the Tribunal’s decision and for the matter to be remitted to the Tribunal for further determination according to law.  The application is considerably out of time and the plaintiff therefore requires an extension of time.

In brief substance, the facts are that the plaintiff is a citizen of Sri Lanka who fled that country by boat on 22 June 2012 and applied for a protection visa on 15 November 2012.  The delegate refused the application on 19 December 2013.  On 19 June 2014, the applicant applied to the Tribunal for a review of the delegate’s decision.  Evidently, there was then a considerable delay but finally on 12 February 2015 the applicant appeared before the Tribunal to give evidence and present argument in support of his application.  The hearing was conducted with the assistance of an interpreter in Tamil and in English.

On 3 March 2015, the Tribunal published its decision. The Tribunal found that there were no substantial grounds to conclude that the plaintiff would face a real risk of significant harm if he were returned to Sri Lanka and, thus, that he was not a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees. On that basis, the Tribunal affirmed the delegate’s decision that the plaintiff is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth).

On 2 April 2015, the plaintiff applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision.  The grounds of that application were that the Tribunal failed to observe the requirements of procedural fairness, made an error of law, applied the wrong test and failed to take into account relevant considerations which the Tribunal was bound to take into account.  Those grounds, however, were entirely unparticularised. 

The matter came on for hearing before Judge Jarrett on 18 May 2015 but the plaintiff failed to appear. The judge therefore dismissed the application pursuant to r 13.03C(1) of the Federal Circuit Court Rules 2001 (Cth) for non‑appearance.

On 20 October 2015, the plaintiff applied to the Federal Circuit Court to set aside Judge Jarrett’s order pursuant to r 16.05 of the Federal Circuit Court Rules. On 7 December 2015, his Honour dismissed the application because he found the application for judicial review to be devoid of any prospect of success and thus that an extension of time would be futile.

On 5 January 2016, the plaintiff applied to the Federal Court of Australia for an extension of time in which to seek leave to appeal from the order of Judge Jarrett.  On 18 May 2016, Justice Rangiah dismissed the application for the reason that he could “identify no error of law or fact in the judgment of the primary judge”.

On 15 June 2016, the plaintiff initiated this proceeding for an order to show cause.  The application advances the same unparticularised grounds as appeared in the plaintiff’s application for judicial review before the Federal Circuit Court.  Apart from bare assertion, there is nothing to indicate that the Tribunal committed any jurisdictional error.  Nor is it apparent from the reasons for decision of the Tribunal that the Tribunal made any error.

This morning the plaintiff has argued that, for some time after the initial hearing before the delegate and perhaps also after the hearing before the Tribunal, he did not receive documents or a recording of his interview.  He has also sought to give evidence that he was unable to retain a lawyer in that time.  Presumably, had that evidence been given he would have contended that he had been thereby deprived of the opportunity of presenting an adequate case below.

From what has been said about the evidence sought to be given, however, it is apparent that the plaintiff had the recording and document and had also retained a lawyer before his application came on before the Federal Circuit Court and certainly before his application came on before the Federal Court.  It is telling that nothing of the matters which are now said to be important was mentioned in either of those jurisdictions.

As matters stand, the plaintiff has not identified any arguable basis for the relief which he seeks.  Over and above that concern, the plaintiff has not provided any adequate explanation for his delay in bringing this proceeding or sought to explain why his actions in first bringing the Federal Circuit Court proceeding and then the Federal Court proceeding, and then having failed in both places coming here to seek the same relief on the same basis, should not be regarded as an abuse of process.

In the circumstances, I am not disposed to grant an extension of time in which to bring the application.  Accordingly, the application is dismissed.  Do you seek costs, Ms Symons?

MS SYMONS:   The Minister does, your Honour.

HIS HONOUR:   The application is dismissed with costs.  Thank you very much.  Thank you, Mr Interpreter.

AT 9.55 AM THE MATTER WAS CONCLUDED