Applicants S120-2004, Ex parte - Re MIMIA

[2004] HCATrans 158

[2004] HCATrans 158

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Sydney  No S120 of 2004

In the matter of -

An application for Writs of Certiorari and Mandamus and an Injunction against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Respondent

R.A. FORDHAM, MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte –

APPLICANTS S120/2004

Applicant/Prosecutor

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 11 MAY 2004, AT 2.16 PM

Copyright in the High Court of Australia

__________________

APPLICANT S120/2004 appeared in person.

MR R.J. BROMWICH:   May it please the Court, I appear for the first respondent.  (instructed by Australian Government Solicitor)

AHMED KHAN FAROOQUE, called as interpreter:

HIS HONOUR:   Interpreter, you are here to interpret from English into Bangladeshi language and back again?

THE INTERPRETER:   Yes.

HIS HONOUR:   Then will you interpret everything I say?

THE INTERPRETER:   Of course.

APPLICANT S120/2004 (through interpreter):   What I am going to tell you today about my case firstly I have to tell you that I do not have any good knowledge about the law.  I did not appoint anybody as solicitor for me.  …..I applied to remit that case to the Federal Court.  I received a letter from the High Court on 7 April.  In this letter they said if I want I can submit to the Court.  In that letter, the last paragraph, they said that if I want I can apply to remit this case to another court.

HIS HONOUR:   Did the letter tell you anything about the need for an extension of time in order to commence these proceedings?

APPLICANT S120/2004 (through interpreter):   I did not know about this matter.

HIS HONOUR:   Do you have anything you want to say about whether there should be any extension of time for you to commence these proceedings?

APPLICANT S120/2004 (through interpreter):   Because it is a complex matter and different matter I would like to appoint a solicitor and so I would like to apply to extend time for this – to commence…..this case.  I would like to request you to extend time, then I can appoint a solicitor and then discuss with him about my case.

HIS HONOUR:   I am talking about the time fixed by the Rules of Court for the commencement of certain kinds of proceeding.

APPLICANT S120/2004 (through interpreter):   Can you explain it clearly?  I could not understand.

HIS HONOUR:   Please take a seat.  I want to ask Mr Bromwich some questions.  Mr Bromwich, these appear to be proceedings for constitutional writs.

MR BROMWICH:   Yes, your Honour.

HIS HONOUR:   What are the time limits for the commencement of those proceedings?

MR BROMWICH:   It appears I have been caught short, your Honour.  I was flowing on from the previous leave application.  I had thought the time limit – I did not expressly turn my mind to it and I should have done, but I thought the time limit was 28 days, but I am not ‑ ‑ ‑

HIS HONOUR:   Will you turn your mind to it now.

MR BROMWICH:   Yes.

HIS HONOUR:   Just take a seat and turn your mind to it and let me know when you have done that and we will have a further discussion about it.

MR BROMWICH:   Your Honour, I cannot pretend I have come equipped to deal with the time limit question.  I apologise to the Court for that, but there is no point in me pretending I have.  I am aware of a 28‑day time limit for one kind of writ and six months for another, but whatever the time limit is, in relation to what is now sought to be challenged, that is, the decision of the delegate, it has been exceeded.

HIS HONOUR:   You are not in a position to make any submissions at the moment about the question of time limit?

MR BROMWICH:   Only that any extension of time that is required would be opposed because of the manifest lack of proper grounds underlying ‑ ‑ ‑

HIS HONOUR:   I understand that, but I am seeking some assistance from you as to what the extension of time required is.  If you are not in a position to give it now, I will just adjourn the matter so that you can go away and have a look at it.

MR BROMWICH:   Yes, I can do that, your Honour.

HIS HONOUR:   All right.  I want to be informed by the people who are involved in this case about questions relating to any time limits that might apply to the commencement of these proceedings.  If there is no time limit, I want to be told that.  If there is a time limit, I want to know what it is and what you and Mr Bromwich have to say about whether time should be extended.  So I am going to adjourn the matter until 3.15, at which time I expect you and Mr Bromwich to be in a position to say to me whatever you want to say, if anything, about the subject of time…..of the proceedings.  I will adjourn until 3.15.

AT 2.23 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.13 PM:

HIS HONOUR:   Yes, Mr Bromwich.

MR BROMWICH:   Your Honour, some of the answers to the questions your Honour has posed are not amenable of the most straightforward of answers, partly because of the way in which the application for the order nisi has been brought.  The first threshold question is that the second respondent is named as the Principal Member of the Refugee Review Tribunal and various parts of relief are sought against him.  My understanding is that proceedings such as these should not be brought against the members of such tribunals but only against the tribunals.

HIS HONOUR:   There is a certificate from the Deputy Registrar to the effect that the second and third respondents submit to any orders of the Court.

MR BROMWICH:   I understood that to be the case, your Honour, and maybe that – particularly as I do not appear for either – presents some difficulties, but I nonetheless raise as a threshold question ‑ ‑ ‑

HIS HONOUR:   What about the nature of the relief that is sought?

MR BROMWICH:   The two types of relief principally sought are certiorari and mandamus.

HIS HONOUR:   Now, just before you go beyond that, the order of certiorari that is sought is to quash the decision of, what?

MR BROMWICH:   There is an order of certiorari in paragraph 4 to quash the decision of the member of the Tribunal.  Now, the member of the Tribunal does not in terms make a decision except as the Tribunal.  Stepping over that phraseology, it is first sought in substance to quash the decision of the Tribunal and, secondly, in paragraph 6 sought to quash the decision of the Minister’s delegate.

HIS HONOUR:   Unless the decision of either the Tribunal or the delegate is quashed, what is the consequence in terms of the rights of the applicant and the rights and duties of your client?

MR BROMWICH:   Well, if those two decisions stand, there can be no mandamus because there will be no outstanding duty.  Those two decisions would stand.

HIS HONOUR:   And does the same apply to the other parts of the relief claimed?

MR BROMWICH:   Yes, in my submission.

HIS HONOUR:   So unless the applicant can get the order of certiorari, then his proceedings cannot get him anywhere.  Is that right?

MR BROMWICH:   That is correct, your Honour, and I was going to come to that shortly.  That assists me in another respect because of some definitional problems with the Rules, but Order 55 rule 17 – and I just note that the – I do not know how much the applicant is following this.

HIS HONOUR:   I did ask the interpreter to interpret what ‑ ‑ ‑

THE INTERPRETER:   I actually asked him and he said he is following – it is better to – because he understands the language.  I ask him.

MR BROMWICH:   Can you let me know if you are having problems following it?

APPLICANT S120/2004:   Yes.

MR BROMWICH:   Thank you.  Order 55 rule 17 provides for a limit of six months for certiorari.  In relation to the decision of the Tribunal, more than four years have passed or close on four years have passed since that decision and in the case of the delegate of the respondent, nine years – I am sorry, not four years, four times the time limit has passed and, in terms of the decision of the delegate, nine times the period has passed, being four years seven months.

HIS HONOUR:   Does that not suggest that we ought to be dealing with an application for extension of time?

MR BROMWICH:   We should, your Honour.  It should be an application for an ‑ ‑ ‑

HIS HONOUR:   Order 64 rule 2.

MR BROMWICH:   And Order 60 rule 6, I think.  I am in your Honour’s hands as to whether you wish to turn it to the applicant first and then to me, as his application.

HIS HONOUR:   Now that we have got to this point, can you tell me what your submission is as to whether an extension of time should be granted?

MR BROMWICH:   My submission is that an extension of time should not be granted.

HIS HONOUR:   Thank you.  I will now hear what the applicant wants to say.

MR BROMWICH:   Thank you, your Honour.

HIS HONOUR:   I would like you to interpret for me.  Counsel for the Minister points out that under the Rules of Court your proceedings to quash the decision of the Tribunal had to be commenced within six months of the decision of the Tribunal unless an extension of time was granted, and he opposes an extension of time.  He also says that if you cannot get your order quashing the decision of the Tribunal, you cannot get any of the other relief you seek.  I would like to hear what you have to say about those matters and, in particular, I would like to hear what you have to say as to why you should be granted an extension of time and I would also like to hear anything else you want to say about the merits of this matter.  Go ahead.

APPLICANT S120/2004 (through interpreter):   I do not know about the law.  I submitted this application 1 April.  The Court asked me to attend a hearing at 11 May.  I think it is very short time for me to appoint a barrister.

HIS HONOUR:   This case has been going on for years and you have been before tribunals and courts, including this Court.  You did not have a barrister representing you last time you were before this Court. 

APPLICANT S120/2004 (through interpreter):   At that time I was passing financial hardship.  If I have time, I will get money from my country.  My younger brother promised me that he will send me money to run this case.

HIS HONOUR:   When I ask you why you should have an extension of time, I am not asking you about whether you want an adjournment; I am asking you about the time limit imposed by the Rules of Court on commencing these proceedings.

APPLICANT S120/2004 (through interpreter):   Whatever time limit I had already I think is not enough for me to argue my view about the case.

HIS HONOUR:   Go ahead and say anything else you want to say about the case or about the adjournment or about the time limit.

APPLICANT S120/2004 (through interpreter):   I would like to request you to extend the time.  If you order to extend the time, then I can appoint a barrister to work on behalf of me because I have no idea about the law.  That is why I cannot explain properly about the law, just my opinion.

HIS HONOUR:   Is there anything else you would like to say about the case?

APPLICANT S120/2004 (through interpreter):   No, your Honour.

HIS HONOUR:   Take a seat, thank you.  Mr Bromwich.

MR BROMWICH:   I do not know if your Honour is assisted by authority or not, but there is a useful template.  It comes from Justice McHugh’s decision in Re Commonwealth of Australia and Another; Ex parte Marks 177 ALR 491. Could I hand up a copy.

HIS HONOUR:   Thank you.

MR BROMWICH:   I have provided a copy to the applicant.  That was an industrial case but the principles appear broadly apposite.  If I could take your Honour to page 495, paragraph [16], which is at the bottom of that page and over the page.  His Honour there noted that:

I find it difficult to see how a person who, with knowledge of the decision, delays 17 months –

and I interrupt myself to note it is 22 months here –

before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.

That is entirely absent here.  In those circumstances:

In all but very exceptional cases, [the rule] should be rigidly applied when, as here, more than one year has elapsed –

and that is the case here.  There is no reason to depart from the view that his Honour took in that case and rigidly apply rules, particularly as no proper reason has been given for delay.  In those circumstances, an extension of time in relation to certiorari in the decision of the Tribunal should not be granted and, if that is not granted, then nothing else can succeed.  Unless your Honour needs to hear further the merits of the case ‑ ‑ ‑

HIS HONOUR:   Can I ask you a question about the merits of the case.

MR BROMWICH:   Yes, your Honour.

HIS HONOUR:   There is an affidavit sworn on 1 April 2004 by the first applicant.

MR BROMWICH:   This is the five‑page affidavit, your Honour?

HIS HONOUR:   And there is another affidavit of 1 April 2004 also sworn by the applicant.  Do you have those affidavits?

MR BROMWICH:   I have the first one and I am just – amongst my papers here I have to locate the other one.  I will find it here in a moment, your Honour, but I have the first one.

HIS HONOUR:   One of the things that puzzled me about the second one is that it contains reference to the very matter that I have been asking you questions about.

MR BROMWICH:   Yes, your Honour.

HIS HONOUR:   It contains a reference to Order 55 rule 17.

MR BROMWICH:   Yes, I do have that affidavit, your Honour.

HIS HONOUR:   So the very matter of the time limits that I raised with you is addressed by the applicant in his affidavit of 1 April.

MR BROMWICH:   Yes, your Honour, which is something I should have picked up.

HIS HONOUR:   What do you want to say about that?  You might like to read it.

MR BROMWICH:   The problem with this affidavit is it omits any reference to the intervening proceedings before the Full Federal Court or High Court.

HIS HONOUR:   Well, it could hardly be suggested that the applicant was unaware of the time limits.  He has filed an affidavit referring to and dealing with the time limits.

MR BROMWICH:   Yes, your Honour.

HIS HONOUR:   Can I ask you about the longer affidavit, the one that is headed the “The factual background to the proceedings”?  Do you see that?

MR BROMWICH:   Yes, your Honour.

HIS HONOUR:   What I would like to understand is what, if any, difference there is between the matters referred to in that affidavit going to the merits of the case and the matters that were put before the Federal Court or this Court on a special leave application.

MR BROMWICH:   Subject to the nuances which I have perhaps overlooked, which I do not believe I have, your Honour – I did read and compare them – the principal difference appears to be an updating of the currency of his fears, but beyond that it appears to be in substance aligned with what he had previously said.

HIS HONOUR:   Is there any complaint, if I can use that expression, about the Tribunal’s decision or proceedings raised in that affidavit that was not raised before the Federal Court?

MR BROMWICH:   Not that I have been able to tease out.  The only qualification I put on that, your Honour, is that there are references to various sections of the Migration Act without any particularisation.  So unless there is buried in there some different complaint to the ones previously brought, which I cannot readily divine without there being some further explanation of what has been referred to, but with that qualification, I do not believe so, your Honour.

HIS HONOUR:   You were present at the special leave proceedings; I was not.

MR BROMWICH:   Yes, your Honour.

HIS HONOUR:   But I got an impression from reading the transcript that there was some attention given in the special leave proceedings to whether or not the applicant had some point or some ground of complaint that had not been agitated in the Federal Court.

MR BROMWICH:   The concern of the….., your Honour, was that whether or not the Muin and Lie ground sought to be advanced on the special leave had, in fact, been canvassed properly before the Full Court and I was able to satisfy their Honours that that had been canvassed before the Full Court.

HIS HONOUR:   Could you state in a summary form what that ground was?

MR BROMWICH:   The Muin and Lie ground, in broad terms, related to the use of country information and, in that particular case, in relation to Bangladeshi documents and the kind.

HIS HONOUR:   So it was a matter relating to procedural fairness?

MR BROMWICH:   Yes, your Honour.

HIS HONOUR:   All right.  Thank you, Mr Bromwich.  In one of your affidavits of 1 April you actually dealt with this matter of the time limit.  So I can take it that when you came to Court today you were aware of the existence of the time limit?

APPLICANT S120/2004 (through interpreter):   I know a little bit about the time but not exactly.

HIS HONOUR:   What I want to ask you is who told you about the time limit?

APPLICANT S120/2004 (through interpreter):   My immigration adviser was practising the immigration law.

HIS HONOUR:   And when did your immigration adviser tell you about the time limit?

APPLICANT S120/2004 (through interpreter):   …..submitted that…..at that time he told me about this time limit.

HIS HONOUR:   The affidavit in which you refer to the time limit is dated 1 April.  When was it that you first learnt about the time limit?

APPLICANT S120/2004 (through interpreter):   When who actually prepared my case on behalf of me, he did not tell me a lot about the time limit; he just tell me a little bit about the time limit.  Because I do not understand the law properly, that is why I could not really understand what he was saying to me.  But it is true that he told me about the time limit and he also told me that – he actually wrote it down in the application to extend the time limit.

HIS HONOUR:   Did this immigration adviser prepare the draft order nisi and the two affidavits of 1 April?

APPLICANT S120/2004 (through interpreter):   Yes.

HIS HONOUR:   Is there anything else you want to say about the case?

APPLICANT S120/2004 (through interpreter):   No.

HIS HONOUR:   On 1 April 2004 the first applicant on behalf of himself and the second applicant filed documents in this Court by way of commencing proceedings for constitutional writs.  A draft order nisi setting out the relief sought and the grounds of relief was filed together with two affidavits of the first applicant, both dated 1 April 2004.

The first applicant made an application for a protection visa on behalf of himself and the second applicant on 1 July 1999.  On 12 August 1999 a delegate of the first respondent made a decision to refuse to grant the protection visa.  That decision was reviewed by the Refugee Review Tribunal, which on 20 May 2002 affirmed the decision not to grant the protection visa. 

On 5 July 2002 an application for judicial review of the decision of the Refugee Review Tribunal was commenced in the Federal Court of Australia.  The proceedings were heard before Justice Madgwick in the Federal Court, who dismissed them on 30 October 2002.  On 18 November 2002 a notice of appeal was filed by the first applicant in the Federal Court.  The appeal came on for hearing before a Full Court consisting of Justices Whitlam, Finn and Goldberg, who on 20 May 2003 dismissed the appeal.

On 12 June 2003 the applicant filed in this Court an application for special leave to appeal.  That application was heard and dismissed on 16 March 2004 by a Court consisting of Justices Gummow, Kirby and Heydon.  On 1 April 2004 these present proceedings were commenced.  The proceedings include an application for certiorari to quash the decision of the Refugee Review Tribunal.  That claim for relief is fundamental to the other claims for relief, because so long as the decision of the Refugee Review Tribunal stands it affects the rights of the applicant and the powers and obligations of the first respondent.

In one of his affidavits of 1 April 2004 the applicant demonstrated that he was aware of the provisions of Order 55 rule 17 limiting the time for taking proceedings for certiorari.  The applicant sought an extension of time.  The applicant has also informed the Court that the draft order nisi and affidavits were prepared for him by a migration adviser, that the adviser was aware of the time limits and the adviser made him aware of the time limits before these present proceedings commenced.

The applicant was not represented by a lawyer in the proceedings before the Federal Court or in the application for special leave to appeal to this Court.  The applicant is not represented by a lawyer today, although he concedes that he was aware of the problem about the time limit no later than 1 April 2004. 

The applicant sought an adjournment of today’s proceedings in order to enable him to consult a barrister.  I do not accept that this application is made because of any sudden recognition of the desirability of having legal advice.  The applicant has offered no explanation of why, if he wanted or needed a lawyer, he did not seek to arrange one to represent him today, other than to say that he has been short of funds all along.  I have no doubt that it is true that the applicant has been short of funds during the whole of these proceedings.  There is nothing new or recent about his difficulty in that regard.  He has had the benefit of the assistance of a migration adviser.  The adjournment is refused.

Neither in his affidavit of 1 April 2004, nor in what he has said to the Court today, has the applicant provided any sufficient reason why there should be an extension of time for commencing the proceedings for certiorari.  On the contrary, the long history of this matter and the fact that the applicant has been before the Federal Court and this Court, coupled with the fact that the material that he has put before this Court in support of his present application adds nothing to what he has previously put to the Federal Court and this Court, indicates that this is an entirely inappropriate case for an extension of time.

The material relied upon by the applicant in support of his claim for constitutional relief is set out in an affidavit of 1 April 2004.  Apart from bringing up to date the applicant’s assertions of his personal state of apprehension as to what will happen if he returns to Bangladesh, there is nothing in that material that adds in any substantial way to the material that was before the Federal Court or the material that was before this Court on the special leave application.

In truth, the substance of the applicant’s complaint is that his evidence was not accepted by the Refugee Review Tribunal in certain significant respects and he also complains about reliance by the Tribunal on certain country information.  His complaints in that respect were available to him to press before the Federal Court and it is evident from a reading of the transcript of the proceedings on the special leave application before this Court that this Court took considerable pains to see whether the applicant had new material or a new point available to be argued. 

The applicant has had every opportunity to ventilate his complaints about the decision of the Refugee Review Tribunal and I am of the view that the extension of time he now seeks is unwarranted.  As I said earlier, his claim for other relief is dependent upon his claim for certiorari.  In those circumstances, the application for an extension of time is refused and the applications for constitutional relief are dismissed with costs.

The Court will now adjourn.

AT 3.48 PM THE MATTER WAS CONCLUDED