ANK15 v Minister for Immigration and Border Protection & Anor

[2018] HCATrans 198

[2018] HCATrans 198

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M11 of 2018

B e t w e e n -

ANK15

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 3 OCTOBER 2018, AT 9.31 AM

Copyright in the High Court of Australia

ANK15 appeared in person.

MR C.J. TRAN:   Your Honour, I appear on behalf of the first defendant.  (instructed by DLA Piper Australia)

HIS HONOUR:   Thank you, Mr Tran.

MR TRAN:   Just looking around, I see there is no translator here yet.

HIS HONOUR:   I see.

MR TRAN:   Perhaps if you could call the second matter.  I understand the translator is on the way.

HIS HONOUR:   Thank you, Mr Tran.  I will stand that matter down.

AT 9.31 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 9.47 AM: 

HIS HONOUR:   Would you swear the interpreter, please, Madam Registrar?

SHEHARYAR SHOAIB, affirmed as interpreter.

HIS HONOUR:   Mr Plaintiff, I am not sure whether you can understand what I am saying to you.  That is why we have an interpreter here.

ANK15 (through interpreter):   Yes.

HIS HONOUR:   The purpose of today is to allow you to make any further submissions which you wish in support of your application.  Mr Plaintiff, I understand the grounds of your application, I think, but is there anything further which you wish to say in support of them before I pass judgment on them?

ANK15 (through interpreter):   So ever since I have been here I have had two more illnesses ‑ one of them is cholesterol, the other one is diabetes.  These health problems have started to increase over time.

HIS HONOUR:   I see.  Perhaps I should make plain, Mr Plaintiff, that it is not my function, nor am I allowed to make any judgment about the merits of your application.  Rather, the purpose of today’s exercise is to decide whether the courts below made any error in holding that there were no jurisdictional errors – errors of law, if you like – on the part of the Tribunal.  Is there anything further he wishes to say, Mr Interpreter?

ANK15 (through interpreter):   I would be very thankful if you would send this case back to the RRT.

HIS HONOUR:   Thank you.  You may have a seat, Mr Interpreter.

MR TRAN:   Your Honour, it is sufficient for me to rely upon the written submissions filed on 14 September, unless I can be of assistance.

HIS HONOUR:   Thank you, Mr Tran.

This is an application for order to show cause why certiorari should not go to quash the decision of the second defendant, Refugee Review Tribunal, and why mandamus should not issue to the Tribunal to require it to reconsider the matter, and why prohibition should not issue to prevent the Minister, his Department or employees and agents, from taking any steps in reliance on the Tribunal’s decision.

The Tribunal had affirmed the decision of the Minister’s delegate of 14 March 2014 to refuse the plaintiff’s claim for a Protection (Class XA) visa. In doing so, the Tribunal had proceeded under section 426A of the Migration Act 1958 (Cth) without taking any further action to allow or enable the plaintiff to appear before it. The background to the Tribunal’s decision to proceed under section 426A was as follows.

On 18 December 2014, the Tribunal had sent a letter to the plaintiff’s solicitor inviting the plaintiff to appear before the Tribunal at 1.00 pm on 4 February 2015.  The plaintiff responded on 5 January 2015 stating that he would attend the hearing.  On 29 January 2015, the plaintiff’s solicitor wrote to the Tribunal seeking an adjournment and attaching a medical certificate.  On 30 January 2015, the Tribunal wrote to the plaintiff stating that it considered the medical certificate to be unsatisfactory and requesting further evidence in support of an adjournment.  On the same day, the plaintiff’s solicitor provided to the Tribunal a number of further documents, including letters from a psychologist.  The Tribunal was again not satisfied that the further documentation indicated that the plaintiff would be unable to attend and participate in a hearing on 4 February 2015, and the Tribunal wrote to the plaintiff on 3 February 2015 stating that the hearing the next day would proceed.  The plaintiff did not attend that hearing.

Subsequently, the Tribunal wrote to the plaintiff inviting him to provide any new information as to why he did not attend the hearing on 4 February 2015.  Further documents were provided to the Tribunal and, while the Tribunal found the evidence to be “weak and unconvincing”, it acceded to the plaintiff’s request to be given a further opportunity to give evidence and present arguments.  The Tribunal fixed a hearing for 24 March 2015.

On 23 March 2015, the plaintiff’s case worker contacted the Tribunal seeking another adjournment on the basis the plaintiff was too unwell to attend the hearing.  That request for adjournment was accompanied by documents showing that the plaintiff had attended the emergency department of Royal Melbourne Hospital on 20 March 2015.  The Tribunal considered the supporting documents to be unsatisfactory and it notified the plaintiff that the hearing scheduled for the next day would proceed.  The plaintiff did not attend that hearing.  Nor did the plaintiff make any further contact with the Tribunal prior to its decision on 1 April 2015.

Subsequently, the applicant filed in the Federal Circuit Court of Australia an application for judicial review of the Tribunal’s decision.  On 15 June 2017, Judge Wilson dismissed the application for reasons which his Honour published at the time of pronouncing his orders.

On 5 July 2017, the applicant filed an appeal to the Federal Court of Australia. Four grounds of appeal were stated but only two were pressed. The first was that the primary judge had erred in failing to find that it was unreasonable for the Tribunal to decide to proceed in the absence of the plaintiff pursuant to section 426A, and the second was that the primary judge had erred in failing to find the Tribunal was affected by error because the Tribunal failed to take into account the nature and extent of the opportunity that the plaintiff would lose by not attending the hearing. On 8 December 2017, Justice Dowsett dismissed the appeal for reasons which his Honour published at the time of pronouncing his orders. On the first ground, Justice Dowsett found that there was no merit in the submission that the Tribunal’s reasons demonstrated no “intelligible justification” for its decision. On the second ground, Justice Dowsett held that the suggestion the Tribunal failed to take into account the importance of the plaintiff appearing before it was opposed to the evidence, and that there was no basis for the suggestion that the primary judge should have inferred that the Tribunal was unaware of or did not consider the likely consequences of the course it adopted.

The plaintiff now seeks relief in this Court on grounds which mirror the two appeal grounds relied upon in the Federal Court.  The plaintiff’s application for order to show cause is substantially out of time and in my view it would be futile to grant an extension of time.  As this Court’s recent decision in Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713; 357 ALR 408; [2018] HCA 30 made clear, a finding that the Tribunal acted legally unreasonably in proceeding under section 426A is not lightly made. There is no reason to doubt the correctness of the judgment of the Federal Circuit Court and there is no reason to doubt the judgment of the Federal Court, and there is no reason to suppose that the Tribunal acted otherwise than correctly in proceeding and deciding as it did.

In the result the application is dismissed.

Do you seek costs, Mr Tran?

MR TRAN:   I do, your Honour, yes.

HIS HONOUR:   Mr Plaintiff, the Commonwealth is seeking an order for costs against you.  Is there anything which you wish to say against that?

ANK15 (through interpreter):   No.

HIS HONOUR:   Thank you.  The application is dismissed with costs.  Thank you, gentlemen.

AT 10.04 AM THE MATTER WAS CONCLUDED