AUN15 v Minister for Immigration and Border Protection

[2016] HCATrans 211

[2016] HCATrans 211

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P29 of 2016

B e t w e e n -

AUN15

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO WESTERN AUSTRALIA

ON TUESDAY, 6 SEPTEMBER 2016, AT 11.45 AM

Copyright in the High Court of Australia

AUN15 appeared in person.

MR P.R. MACLIVER:   If it please your Honour, I appear for the Minister.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you.  Now, to the plaintiff – this is your application.

AUN15:   Yes, your Honour.

HER HONOUR:   I have read the papers that you have sent through to me.  I have read your application, your outline of submissions and also your affidavit.  You will have received the defendant’s outline of submissions.  Have you read those?

AUN15:   Yes, I have, your Honour.

HER HONOUR:   Is there anything you wish to add to your outline of submissions?

AUN15:   No, your Honour.

HER HONOUR:   Thank you.  What I propose to do is this then.  I am going to ask Mr Macliver to outline in short form what his complaint is about your application and why it is he says it should be dismissed.  What I suggest to you – do you have a paper and a pencil or a pen?

AUN15:   Yes, your Honour.

HER HONOUR:   Then you might make some notes while Mr Macliver is speaking and then you can tell me what your responses are to the points raised by him.  Is that suitable?

AUN15:   Yes, your Honour, thank you.

HER HONOUR:   Thank you.  Mr Macliver.

MR MACLIVER:   Yes, thank you, your Honour.  Your Honour, the defendant submits that none of the grounds of application can be made out in this matter.  As your Honour will appreciate, this was a matter where the Minister’s intervention was sought under section 48B of the Migration Act to lift the bar under section 48A which would otherwise prevent the plaintiff from making a further protection visa application.

There was a submission prepared by the Department which was put up to the Minister and the plaintiff was given the opportunity to provide any

further information to convince the Minister as to why circumstances in relation to his protection claims had changed to support intervention by the Minister.

The Minister considered the submission and documents put forward but declined at the end of the day to exercise his discretion to lift the bar under 48A, and it is that exercise of discretion which is the subject of this application.  We have, in our outline of submissions, referred to the fact that a feature of the power under section 48B is that it is a non‑compellable power which the Minister may exercise if he thinks it is in the public interest to do so.

Given the nature of the power, your Honour, the defendant submits that the decision of the Minister was not irrational, it was not legally unreasonable, and as this Court has noted in Minister for Immigration and Border Protection v SZSSJ, this is not a decision to which procedural fairness applies and, in any event, we would submit that there was no breach of procedural fairness in relation to the plaintiff in the Minister’s consideration of whether or not to exercise his power under section 48B.

For those reasons, your Honour, we simply submit that none of the grounds of the application can be made out and we would submit that the application should simply be dismissed and not proceed any further.  If it please your Honour, those are my further submissions.

HER HONOUR:   Thank you, Mr Macliver.  Can I ask the plaintiff a question, please?  Do you have the defendant’s outline of submissions?

AUN15:   Yes, your Honour.

HER HONOUR:   Could I ask you, please, to go to page 3?

AUN15:   Yes, your Honour, I am on page 3.

HER HONOUR:   You will see the heading “Ground 3”.

AUN15:   Yes, your Honour.

HER HONOUR:   You will see that the Minister complains that you have not given particulars of that ground, you have not specified the particulars of that ground.  The Minister then identifies – he thinks that what you are talking about is that the letters were sent to you containing an incorrect residential address.

AUN15:   That is correct, your Honour, but ‑ ‑ ‑

HER HONOUR:   Is that the correct basis for your complaint?

AUN15:   Yes, your Honour, and I believe that they have stated incorrectly here that – when they say the letter dated on 7 November was sent to the plaintiff by email, to his nominated email address, your Honour, this is incorrect.  They did not send any email on this particular date, on 7 November.  They only sent a letter which contained the incorrect address.  They never sent me an email on this particular date, on 7 November.  So, your Honour, I think this is incorrect.  The only email that they claim to have sent me ‑ ‑ ‑

HER HONOUR:   I think what – yes.

AUN15:   ‑ ‑ ‑ was sent on 22 December; that was the only email that they have claimed to have sent to me.  Your Honour, another thing that – they have been all the while – the first – all the letters they have sent to me, they never accompanied them with any email address – I mean, any message, any email address – sorry, any email – they just sent me plain letters.  The only time they are saying they sent me the email was on 22 December.  One day the letter inviting me to come to the interview, they were ‑ that one not – they were not accompanied by any email.

And even ‑ your Honour, on the reasons for judgment from the Federal Circuit Court the judge said “It is not suggested that applicant was advised by email notification that he was invited to attend an interview with the delegate”, so I think it is wrong for them to say that – it was not sent to my email address, your Honour.  Also, your Honour ‑ ‑ ‑

HER HONOUR:   Now, is there anything you wish to – sorry, I interrupted you.  There are two other things I want to ask you.  Is there anything else you wish to say in response to what Mr Macliver has said?

AUN15:   Your Honour, also, I think – yes, your Honour, I believe in the same breath, in regard to the email address, when I went to the – when I wrote to the Administrative Appeals Tribunal in this matter I never informed them that I never received any letters from the Department of Immigration because I did not know at that point that they are sending me the email.  So, your Honour, I think from the beginning there has been a lot of miscommunication between me and the Department of Immigration.

But the problem, your Honour, is that I have not – there is nobody who is willing to look at how the Department of Immigration was communicating to me because all in a while they are saying that I did agree to being communicated by email address, which is correct, I did agree to that, but I think they have been inconsistent in their manner of how they

were communicating to me because they were choosing when to communicate by letter and when to communicate by email.

And the only one instance that I am being told when I never received the email address, now it becomes a problem.  All the while the other communication to me they were always been through by letter, they always been through the letter.  Their only communication to me, only once, was by email address.  That was on 22 December, your Honour.

HER HONOUR:   Thank you.  Mr Macliver, anything you wish to say in response to those observations and submissions?

MR MACLIVER:   Only this, your Honour, that the defendant has put forward affidavit evidence before the Court in the form of an affidavit by my instructing solicitor, Mr Peter John Corbould, together with a number of exhibits, and amongst the exhibits is, at exhibit PJC‑2 starting at page 9, advice that the letter from the Department of 12 March 2014 acknowledging receipt of the protection visa application was sent to the plaintiff by email and, similarly, at exhibit PJC‑3 starting at page 17, evidence that the letter inviting the plaintiff to attend an interview before the delegate was sent by email, reference to this email and attachment being sent to and then the applicant’s email address that he gave in his protection visa application.

Additionally, at exhibit PJC‑4, your Honour, starting at page 25 ‑ or at page 25, it is only a one‑page exhibit – and that is evidence provided by the Department of screenshots showing the sending of that particular email with the attached letter inviting him to an interview, indicating that the email with the attached letter of invitation was sent at the precise time – 14:34:43.

HER HONOUR:   Thank you.

MR MACLIVER:   So, in our respectful submission, there is clear evidence of communications by email and, in particular, the letter of invitation to attend the interview before the delegate.

HER HONOUR:   Thank you.  The Court will reserve its decision and will publish its reasons for decision in relation to this matter and you will be notified of the delivery of those reasons for decision.

AT 11.58 AM THE MATTER WAS CONCLUDED