ATE16 v Minister for Home Affairs & Ors

[2020] HCATrans 33

[2020] HCATrans 033

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M109 of 2019

B e t w e e n -

ATE16

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL COURT

Third Defendant

FEDERAL CIRCUIT COURT

Fourth Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 18 MARCH 2020, AT 9.42 AM

Copyright in the High Court of Australia

HIS HONOUR:   By an application filed 11 September 2019, the plaintiff seeks the issue of constitutional writs directed to the Minister for Home Affairs and the Federal Court of Australia.  The plaintiff requires an extension of time to enable his application to progress.  For the reasons I now publish, I would dismiss the application.

The orders are:

1.        An extension of time is refused.

2.The application is dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

3.        The plaintiff pay the first defendant’s costs.

I publish those orders.

I direct the reasons as published be incorporated into the transcript.

The plaintiff is a citizen of Sri Lanka who arrived in Australia as an irregular maritime arrival on 19 July 2012.  He applied for a protection visa on 15 January 2013, claiming that he feared harm on return to Sri Lanka on various grounds.  A delegate of the Minister for Immigration refused his application.  The Administrative Appeals Tribunal (“the Tribunal”) affirmed the decision of the delegate.  The Federal Circuit Court of Australia dismissed an application for judicial review of the Tribunal’s decision.  The Federal Court of Australia dismissed an appeal from the Federal Circuit Court.

The plaintiff now seeks an extension of time in which to file an application for a writ of prohibition directed to the Minister for Home Affairs to restrain the Minister and his servants and agents from removing the plaintiff from Australia.  The plaintiff has also purported to join the Tribunal, as well as the Federal Court and Federal Circuit Court, rather than the judicial officers who dismissed his application and appeal.  He seeks a writ of mandamus requiring the Federal Court or the Minister for Home Affairs to determine his application according to law, although without a writ of certiorari to quash the decisions.

The plaintiff could have brought an application for special leave to appeal from the decision of the Federal Court.  He could still do so although an application for special leave would now require an extension of time.  Instead of bringing an application for special leave, and perhaps due to a misapprehension by the plaintiff that this application is an “appeal to the High Court” as he describes it in his affidavit dated 11 September 2019, this application effectively seeks to circumvent the established appeals process by seeking judicial review of the decision of the Federal Court in this Court’s original jurisdiction.  Other than in exceptional circumstances, where statutory rights of appeal and applications for leave to appeal exist[1] then those avenues must be exhausted “before this Court will contemplate an application for a constitutional writ directed to achieving a result that in substance may be obtained on appeal”[2].  By itself, this is a sufficient basis to dismiss the plaintiff’s application as an abuse of process.

[1]Compare Edwards v Santos Ltd (2011) 242 CLR 421 at 426 [8], 430 [21].

[2]Rilak v A Senior Registrar of the Family Court of Australia at Sydney [2018] HCATrans 101 at lines 576-579; Plaintiff S254/2018 v The Honourable Justice McKerracher [2019] HCATrans 212 at lines 2-5. See also Waters v The Federal Court of Australia and the Judges Thereof [2015] HCATrans 347 at lines 619-621; Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2016) 91 ALJR 1 at 8 [22]; 338 ALR 360 at 367; Dimitrov v Supreme Court of Victoria (2017) 263 CLR 130 at 138-139 [19].

In any event, none of the matters raised by the plaintiff establish any possibility of a jurisdictional error.  The plaintiff alleges three jurisdictional errors by the Federal Court in:  (i) failing “to understand whether the plaintiff understood the procedure relating to the reinstatement or that the [p]laintiff had the onus to persuade the court that his application had raised an arguable case”; (ii) failing “to find that the [T]ribunal had not taken into account the cumulative effect on his mental health of him having suffered a fistula requiring surgery, availability of medical services in Sri Lanka and possible detention on return to Sri Lanka”; and (iii) by failing “to find that the [T]ribunal had not [taken] into account his psychological capacity at the time of the hearing as set out in the May 5 2014 Foundation House Health Assessment Report that was provided to the [Tribunal] prior to a decision being made”.

Each of these alleged jurisdictional errors repeats one of the plaintiff’s grounds of appeal in the Federal Court[3].  Each ground was considered and rejected by the Federal Court[4].  Even if each ground were to establish an error by the Federal Court, which is unnecessary to decide, the error would not be a jurisdictional error.  “[I]t does not lie within the original jurisdiction of this Court to order that certiorari issue for the reason that, in the opinion of the members of this Court, the Federal Court’s decision on those questions is mistaken”[5].

[3]See ATE16 v Minister for Home Affairs [2019] FCA 846 at [33]-[34].

[4]ATE16 v Minister for Home Affairs [2019] FCA 846 at [40]-[47], [48]-[51], [52]-[53].

[5]R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 389.

The application in an abuse of process and discloses no arguable basis for the relief sought. To the extent to which the application requires an extension of time, a grant of an extension of time would be futile and the extension should be refused. The application should be dismissed under r 25.09.1 of the High Court Rules 2004 (Cth), without listing it for an oral hearing. The plaintiff must pay the costs of the first defendant.

AT 9.43 AM THE MATTER WAS CONCLUDED