Applicants M31-2004, Ex parte - Re MIMIA

[2004] HCATrans 318

[2004] HCATrans 318

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M31 of 2004

In the matter of -

An application for a Declaration or for a Writ of Prohibition or for an Injunction or for orders in the nature of Certiorari or Mandamus against THE MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte –

APPLICANTS M31/2004

Applicants/Prosecutors

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 24 AUGUST 2004, AT 9.39 AM

Copyright in the High Court of Australia

APPLICANTS M31/2004 appeared in person.

MR S.P. DONAGHUE:   May it please the Court, I appear for the first respondent.  (instructed by Clayton Utz)

HIS HONOUR:   I wonder if the interpreter might be sworn.

IRMA BAHDUS, sworn as interpreter:

MR DONAGHUE:   The first respondent has served a summons in this matter seeking to have the proceeding dismissed.

HIS HONOUR:   Is there material in support of that application, Dr Donaghue?

MR DONAGHUE:   There is.  There is an affidavit sworn by Mr Tom Mosby.

HIS HONOUR:   Is that the affidavit of 29 July 2004?

MR DONAGHUE:   That is right, it is.

HIS HONOUR:   Has a copy of that affidavit been served on the applicant?

MR DONAGHUE:   It has, yes.

HIS HONOUR:   And do you rely on it?

MR DONAGHUE:   I do rely on it, your Honour.

HIS HONOUR:   Madam Interpreter, would you explain to the applicant a number of things.  First, the statute tells me that I may not use his names in the course of the proceedings.  I must refer to him by this awkward expression, Applicant M31.  I apologise for that and I intend him no discourtesy.  The Minister has asked for orders bringing his application to an end.  The Minister submits that his application should fail and the Minister says it should fail because of the earlier proceedings that he took in the Federal Court. 

The applicant has filed written submissions.  His written submissions are dated 19 August.  The Minister has also filed some written submissions

and those written submissions of the Minister and the affidavit are mentioned in this gentleman’s submissions.  I have read these documents.  Is there anything more that the applicant wants to say to me against the Minister’s argument?

APPLICANT M31/2004 (through interpreter):   Initially I was not given a chance, opportunity, to defend myself.  It is an important case, important matter, and the first opportunity that was given to me only lasted 45 minutes.  I was not in any way that I was able to defend myself properly because 10 months prior to arriving in Australia I lost my 18‑year‑old son in Turkey.  I arrived in Australia in 2001.  Ten months prior to my arrival I lost my son, and due to this I was traumatised and depressed.  I looked for him, could not find him, but I had to leave the country. 

After arriving in Australia the same depression continued.  It was an ongoing thing.  Within 45 minutes we had to make an application for political asylum.  Subsequently to that, I think as far as I remember, six months later, I was called in for an interview by the Department of Immigration.  Psychologically I was under a lot of strain during this interview, so therefore I was unable to express myself properly the way I wanted to because there was a lot of tears involved.  Had I had some legal representative or some psychologist with me at the time of this interview, I am sure this interview would have been suspended and perhaps adjourned to another day, and I did not have that opportunity to express how I felt during this interview. 

This was a very significant interview and, like I said, the duration of this interview was only 45 minutes and I think it was very, very important.  This amount of time was very brief.  I was hoping to get more time to give my side of story and defend myself but the interview was over by then.  Up until today I have not had the opportunity once again to defend myself, to give my side of the story.  Up until now I have had no legal representative appointed to me in Australia for this case.  I do not have any English at all and I am not familiar with Australian immigration laws and I have not even been able to respond to the letters sent to me by the department.  I have not had a fair justice given to me.  After I receive my rejection, the events just continued.  It has been an ongoing struggle.  We were not given the right opportunity.  It was deficient opportunity for us.  Because my defence was not complete, I would like the file to be released from here and returned to the Immigration Department to be reconsidered. 

With the Tribunal, when I was being heard in the Tribunal, I explained my side of story to the Tribunal member but the findings or the decision was exactly the same as the decision made by the interview.  I was asked the question when there was an attempt on my life in Turkey, I said 1994, in 1996 and in 1998.  It happened on a number of occasions.  The argument was that my life was in danger because I had not been killed, although there has been a number of attempts on my life.  I was still alive, so the argument was that it was not unsafe.  It was decided that the people who tried to kill me were not government officials; they were other people.  I do not know how this conclusion was come upon. 

The fact that my son was lost, once again the argument was that the son just went missing on his own accord.  Well, if that is the case, obviously they know the whereabouts of my son.  If they can give me all the information, his whereabouts, we might be able to find him.  We do not have legal representation, so we do not know what the next stage is in our appeal.  I made an application to the Federal Magistrates Court.  They sent me a letter and these letters required response from me but I was not in a position to be able to reply to these letters because I am not familiar with Australian laws and my English is very, very limited.  I am not a lawyer and I did not have the opportunity to have a lawyer. 

Because of that, the case was transferred to Federal Magistrates Court.  Once again, I did not have any legal representative in this law of court.  The judge asked us to make some endeavours to get some legal representation from Law Institute but that did not eventuate.  During that hearing I was given an opportunity to speak out.  I did speak but the government’s lawyers were arguing against my case and they said to the magistrate that I have no right to dismiss this case.  Then the magistrate said that the case has been transferred to High Court and they could not do anything about the content of this case.  They have no authority.  Subsequently the application was made to the Minister. 

What we were basically doing, we were signing documents and sending them over but we did not know about the contents of these particular responses.  Obviously the decision once again, it was unsuccessful, like the first application process happened within 45 minutes.  Considering all these facts and the prior problems, we thought it would be best if High Court could be dealing with our application.  Once again, I repeat I have not been given enough opportunity to defend my case to the fullest.  We are three people here and we are exactly in the same predicament.  Right now we are very much distressed.  I worked in Turkey for 26 years and there was a lot of persecution there and now it has been three years here as well.  It has been very difficult for us.  Up until today we cannot afford private lawyer and we have not been given the opportunity to be represented by a government lawyer either.  I respect your decision.

HIS HONOUR:   Thank you.  Is there anything else that he wishes to add?

APPLICANT M31/2004 (through interpreter):   There are quite a few other things I would like – but at this stage I am very emotional and distressed, unable to express.  Just one little thing if you please allow me.

HIS HONOUR:   Yes.

APPLICANT M31/2004 (through interpreter):   With developed countries, advanced countries, who are part of United Nations, during these kind of interviews they always make sure there is a psychologist in these interviews present with the applicant.  Australia is one of those developed countries but it was very, very difficult for me when there was not a psychologist or a counsellor sitting in my interview.

HIS HONOUR:   Thank you.  Yes, Dr Donaghue.

MR DONAGHUE:   Your Honour, you indicated that you had seen the written submissions filed in all of these matters.

HIS HONOUR:   Yes.  The point to which I would direct your attention is the question of extension of time.  Let us for a moment leave aside questions about preclusion.  It seems to me that a difficulty possibly in the way of the applicant is the question of extension of time, given the history of prior proceedings in the Federal Courts.  What do you want to say about that subject?

MR DONAGHUE:   That was one of two alternative ways in which we invite the Court to approach the dismissal of the matter.  That would allow the Court to dismiss the matter, in my submission, without touching upon the other issues.  The decision was made 19 months in this case before this proceeding was commenced, so therefore 13 months outside the time that the rules of this Court allow for an application for certiorari.  In my submission, in those circumstances, where the delay is longer than 12 months, it is possible and appropriate for the Court to refuse to extend time in the absence of an exceptional case to explain a delay of that length.  There is a decision of Justice McHugh that is in the folder of authorities that was given to the Court and referred to in the submissions.  It is very regularly cited in support of that proposition.  If I might take your Honour to it.

HIS HONOUR:   I think perhaps the applicant should have a copy so that he may follow or the interpreter may interpret to him the point to which you are going.  Can your instructor perhaps open the ‑ ‑ ‑

MR DONAGHUE:   We have just provided a folder there.

HIS HONOUR:   Yes, I know, but open the folder at the passage so that the interpreter finds it.

MR DONAGHUE:   It is behind tab No 9.  The case is Re Commonwealth of Australia; Ex parte Marks.  Turning specifically to paragraph [15] on page 495 – the page is in the top right-hand corner – the structure of this judgment, in my submission, your Honour, is that in paragraph [15] Justice McHugh talks about the wide range of factors that go to the exercise of the discretion whether or not to extend time in a matter where the delay is not inordinate.  His Honour starts with saying:

An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties.

That is the starting point.

That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension.  Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered.  Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

That is obviously a wide range of relevant factors in the discretionary mix.  But then in the next paragraph Justice McHugh says:

Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless –

essentially the respondent is to blame.  His Honour goes on to say you need exceptional circumstances.

That, in my submission, is consistent with a number of decisions of this Court that say even if you could show that there was a jurisdictional error, it is sometimes appropriate to refuse relief as a result of delay.  So even assuming against the respondents in this case that there might have been an error in this decision, which we do not concede, but even if your Honour was to assume that, in the absence of an explanation for a delay of longer than 12 months, it would be open to your Honour to say it is not appropriate to extend time.  Here there is no explanation.  The only thing that is mentioned is an application to the Minister for the exercise of

his discretion under section 417.  There are many cases in the Federal Court which have said that does not explain a delay in commencing proceedings.  So, in my submission, your Honour, the High Court Rules, in the absence of a positive exercise of discretion by the Court to extend the time, preclude the certiorari and mandamus claims.

HIS HONOUR:   And then as to prohibition, we come to the point in Re Ruddock; Ex parte Reyes.

MR DONAGHUE:   We do not actually in this case, your Honour, because here what is thought to be prohibited is the Tribunal from proceeding any further.

HIS HONOUR:   If certiorari went to quash, the Tribunal would go on.  Unless certiorari goes to quash, the Tribunal has nothing left to do.

MR DONAGHUE:   That is right.  So, if time has not been extended for certiorari, the decision is still there; therefore, the Tribunal has no function, there is nothing to prohibit, and prohibition can be dismissed for that reason.  Your Honour, that would account for the whole of the cause of action and justify a dismissal order.

HIS HONOUR:   Thank you, Dr Donaghue.  Madam Interpreter, is there anything that the applicant wishes to say in answer to what Dr Donaghue has said?  What he has said against the applicant is that there has been such a delay in starting proceedings in this Court that the time fixed by the rules of Court has expired.  Applications of this kind must be brought very quickly.  The Minister says against him that there is no good reason to extend the time.  That is the argument against him.  What does he say in answer?

APPLICANT M31/2004 (through interpreter):   There may have been some delays.  According to their arguments there may have been, but in our opinion there has been no delays.  This is something that is very, very essential and important.  My wife has suffered a lot.  She has gone through similar traumas like I have.  It is the same situation with my son here.  They should have been listened to.  They have not been, so there is some deficiencies in this case. 

There are three people involved, my wife and my son as well as me, and I was their spokesperson.  I was the one who has been listened.  They have not been listened.  They have not had the opportunity to express their side of the story.  There may have been some delays but not in my opinion, because we still have not had enough time to prepare ourselves, to prepare our application properly.

If this application before you, if we are going to be unsuccessful, then I would believe that we have not been given the right opportunity and the right chance.  I think our case, our application, has not been looked at or investigated properly.  That is my opinion.  I do not think there is any delays.  We have not been able to prepare ourselves.  There has not been enough preparation.  We have not found any legal representation.  Of course, the Minister’s lawyers, they are an expert in this, they are familiar with all the immigration laws and how the system works, but I do not have that chance here. 

All I can tell you is that the kind of suffering I have endured, the kind of mistreatment I have had to go through, and I am a political asylum seeker.  At the Tribunal – I believe there is some inconsistencies in some of the judgments made because there was somebody I know from – exactly who had the same kind of background, the same kind of things, and that family was able to get their application approved, whereas I have been in the same condition and my application had been rejected.  So I believe there is some inconsistencies in some of the judgments.

HIS HONOUR:   Thank you. 

The applicants, a married couple and their son, arrived in Australia from Turkey on 11 September 2001.  On 15 October 2001 the male applicant and the son made application for protection visas and at the same time the wife sought protection as a dependent member of the family unit.  The application for protection visas was refused by a delegate of the Minister on 3 April 2002.  The applicants sought review of that refusal by the Refugee Review Tribunal, but on 10 July 2002 the Tribunal affirmed the decision not to grant protection visas to the applicants.

In August 2002 the applicants commenced a proceeding in the Federal Court of Australia seeking review of the Tribunal’s decision. That application for review was filed after commencement of what might conveniently be called the new Part 8 of the Migration Act 1958 (Cth). The application made a large number of allegations of grounds upon which it was based but gave no particulars of any of the grounds alleged.

On 20 September 2002 the Federal Court ordered that the application be transferred to the Federal Magistrates Court.  Thereafter, orders were made in that court requiring the applicants to file and serve amended application for an order of review giving what were described as proper particulars of the grounds relied on.  Orders of that kind were made on 13 November 2002, 18 December 2002 and 12 February 2003.

On 12 May 2003 the application came on before Federal Magistrate Hartnett, who vacated the hearing date that then had been fixed and ordered the applicants to file and serve any amended application on or before 4 June 2003, the day before the date to which the hearing of the application was adjourned.  At that hearing before the federal magistrate on 12 May 2003 the applicants were represented by counsel, whom I assume appeared pro bono.  In fact, the applicants filed no amended application in accordance with the directions that had been given by Federal Magistrate Hartnett on 12 May 2003. 

It should be noted that by the time that order was made on 12 May 2003, this Court’s decision in Plaintiff S157 v The Commonwealth (2003) 211 CLR 476 had been delivered and uncertainties about the operation of the new Part 8 of the Act had been resolved. When the matter came on for hearing in the Federal Magistrates Court on 5 June 2003, the applicants appeared in person, the husband and father speaking for them. The magistrate found that there was no arguable jurisdictional error in the decision made by the Tribunal and accordingly dismissed the application with costs.

Some months later, on 19 February 2004, the applicants commenced the present application in this Court seeking orders nisi for constitutional and other relief.  The grounds raised in the proposed draft order nisi were substantially cast in the same way as the application to the Federal Court had been cast.  It was alleged that there had been a failure to give the applicants natural justice, that the Tribunal had constructively failed to exercise its jurisdiction in that it failed to take into account relevant considerations and took into account irrelevant considerations.  It was alleged that the decision of the Tribunal was so unreasonable that no reasonable decision‑maker could make it.  It was alleged that the Tribunal had constructively failed to exercise its jurisdiction in that it was affected by an error of law in the exercise of its power, that the Tribunal had failed to exercise its jurisdiction in that there was an improper exercise of power because the decision was affected by bad faith or bias made for an ulterior purpose or not made in accordance with the procedures set out in the Act.  It was contended that the Tribunal had failed to exercise the jurisdiction conferred on it by the Act in that the exercise of power under the Act was based on a finding for which there was no evidence or other material.  Finally, it was contended that the Tribunal had made the decision in circumstances which were otherwise contrary to law.

Those grounds were not amplified either in the draft order nisi or in the affidavit filed in support.  Some limited amplification of them was indicated in the course of oral submissions made to me this morning by the husband and father, who spoke on behalf of the other applicants.  In essence, he said to me that at the time of the original interview concerning the claims that had been made for protection visas, his psychological condition was such that he had been unable to give a proper and fair account of himself or the claims which he and his family made.  Thereafter, he pointed to the absence of legal advice and representation throughout the subsequent proceedings in the Federal Court and Federal Magistrates Court, leading in his contention to the result that his case had never properly been put to any tribunal or court in Australia.

Against that must be put the detailed and comprehensive decision of the Tribunal which, at least on its face, appears to canvass a large number of issues that had been raised by the applicants.  Be this as it may, to the extent to which the applicants seek mandamus or certiorari in this Court, they require an extension of time for commencing the proceedings.  That application for extension of time should be refused.

The decision which the applicants seek to challenge is the decision of the Tribunal made on 10 July 2002.  Application to this Court was not commenced until 19 February 2004, 19 months later.  The applicants’ commencement and prosecution of proceedings in first the Federal Court and later the Federal Magistrates Court, far from constituting any basis for granting the extension of time that would be necessary to their making application for mandamus or certiorari, provide powerful reasons against granting such an extension.  Whether or not the disposition of those earlier proceedings precludes the applicants from making the contentions which they would seek to make in this Court, the institution and disposition of those proceedings together constitute reason to refuse the extension of time that would be a necessary condition precedent to their making the claims they seek to make.

Insofar as the applicants seek prohibition, that application should be refused for the reasons given by Justice McHugh in Re Ruddock; Ex parte Reyes (2000) 177 ALR 484. Prohibition will not go to the Tribunal because, so long as its earlier decision stands, there is no further proceeding of that Tribunal to prohibit. To the extent to which the applicants seek certiorari to quash the Tribunal’s decision, the appropriate consequential remedy would not be prohibition but would be mandamus, compelling the Tribunal to conduct its review according to law. Further, as Justice McHugh points out in Reyes (2000) 177 ALR 484 at 488, paragraph [23], prohibition would not go to the Minister to prohibit her from removing the applicant because, so long as the Tribunal’s decision remains intact, it is the Act which prescribes the consequences that must follow in respect of an unlawful non‑citizen.

For these reasons, the application for prohibition would fail.  There is in my view no arguable case for its grant.  The application for an extension of time, for certiorari and mandamus must be dismissed.  In these circumstances, it is unnecessary to consider the wider questions about preclusion which were dealt with in the Minister’s submissions. 

The order is application dismissed with costs.  I will certify for the attendance of counsel.

AT 10.25 AM THE MATTER WAS CONCLUDED