BCE15 v Minister for Immigration and Border Protection & Ors

[2016] HCATrans 218

[2016] HCATrans 218

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S115 of 2016

B e t w e e n -

BCE15

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

FEDERAL CIRCUIT COURT OF AUSTRALIA

Fourth Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 SEPTEMBER 2016, AT 11.29 AM

Copyright in the High Court of Australia

____________________

MR A. KUMAR:   May it please the Court, I appear for the plaintiff.  (instructed by Weighbridge Lawyers)

MS R.S. FRANCOIS:   If the Court pleases, I appear for the respondent Minister.  (instructed by Sparke Helmore Lawyers)

HIS HONOUR:   I note that there are submitting appearances for the second to fourth defendants.  Now, Mr Kumar, you can take it that I have read the papers.

MR KUMAR:   Yes, your Honour.

HIS HONOUR:   Mr Kumar, you cannot combine an application for special leave to appeal with proceedings in the original jurisdiction of the Court.

MR KUMAR:   I do not seek to press that relief, your Honour.

HIS HONOUR:   Yes, all right.  Your essential complaint about the reasoning of the Tribunal, as I understand it, is that you seek to challenge the exercise of discretion to go ahead to make the decision in the absence of the appearance of the plaintiff.

MR KUMAR:   That is correct, your Honour, and whether the Tribunal change its mind to – that it addressed this question before proceeding to do so.

HIS HONOUR:   Yes, and you put the problem with the exercise of the discretion on the basis of a failure to take account of a relevant consideration.  Is that right?

MR KUMAR:   Well, yes, your Honour, or failure to ask the correct questions in its ‑ ‑ ‑

HIS HONOUR:   Yes.  The correct questions were what?

MR KUMAR:   Whether to proceed in absence – the reasoning does not disclose why the Tribunal has proceeded, your Honour, to come to a decision that it has.  So therefore, your Honour, there was a – consideration should have been given whether in the circumstances of this case whether the appellant – sorry, the plaintiff – should have been not provided the opportunity to be heard, your Honour, in relation to her application.  So why the Tribunal proceeded to – whether ‑ considered that it was not sufficient notice or the matter should not be delayed or what ‑ the relevant consideration as to why the Tribunal proceeded, in my submission, is not in the decision, it simply recognises the fact that it can proceed, your Honour.

HIS HONOUR:   Yes, all right, and these points were not raised, or this point was not raised, specifically before Judge Street?

MR KUMAR:   No, your Honour.  It was not squarely raised, the applicant was self‑represented.  She put in a very general claim that there was a denial of procedural fairness and natural justice, referring to the failure for the Tribunal to give an opportunity to be heard.

HIS HONOUR:   Yes.  All right, is there anything more you wish to say?

MR KUMAR:   So, your Honour, in relation to his Honour Judge Street’s decision, he, in my submission, has not addressed any question as to why the Tribunal should proceed.  He just glossed over the fact that the letter was sent.  We cannot discern, in my submission, any consideration or relevant consideration in his written submission, particularly the plaintiff identified three grounds in ground 3 of her ‑ before his Honour that she was complaining that there was a denial of procedural fairness and so his Honour has not touched or considered, in my submission, on that issue.  His Honour’s reasoning is very terse, in my submission.

HIS HONOUR:   Yes.  So you get to the denial of procedural fairness through the wrongful exercise of discretion?

MR KUMAR:   Yes, your Honour.

HIS HONOUR:   Yes, all right.

MR KUMAR:   So, your Honour, in my submission, either it is not addressing the correct questions and asking whether his Honour should have or his Honour addressing all the relevant considerations and deciding that this is a matter in which the application should be dismissed, your Honour, considering that the appellant – the plaintiff was self‑represented.

HIS HONOUR:   Yes, before Judge Street.

MR KUMAR:   Yes, your Honour.

HIS HONOUR:   Yes, I understand.

MR KUMAR:   Otherwise, your Honour has said ‑your Honour has read my submission, otherwise I do not wish to belabour any other point as such, unless your Honour needs assistance on any point.

HIS HONOUR:   No, you have assisted me with your submissions, thank you.

MR KUMAR:   Yes, your Honour.  In relation to then the court above, we say that a similar consideration in relation to Justice Flick’s decision also applies in terms of ‑ ‑ ‑

HIS HONOUR:   Well, what do you mean, a similar consideration?  Justice Flick was concerned with an application for leave to appeal from the decision of Judge Street.

MR KUMAR:   Yes, your Honour.

HIS HONOUR:   You do not suggest that Justice Flick misunderstood the reasoning of Judge Street, do you?

MR KUMAR:   No, your Honour, I do not.  So, your Honour, the reason we are before this Court is ‑ in my submission, the reason for ‑ my friend wrote a submission where your Honour – a case that was decided on merit that was before your Honour and thought it was inappropriate that matter should be before you.

HIS HONOUR:   There is, Mr Kumar, an appropriate mechanism for bringing before this Court a complaint about the reasoning of Justice Flick, and that is by a special leave application, which is a separate process.

MR KUMAR:   Yes, your Honour.

HIS HONOUR:   But I understand the submissions that you make in relation to the application for an order to show cause.

MR KUMAR:   Yes, your Honour.  So, your Honour, those are my submissions, unless your Honour ‑ ‑ ‑

HIS HONOUR:   No, I do understand them, Mr Kumar.

MR KUMAR:   Thank you, your Honour.

HIS HONOUR:   Thank you.  Ms Francois, I do not need to hear from you.

MS FRANCOIS:   As the Court pleases.

HIS HONOUR:   You can take a seat, Mr Kumar.

MR KUMAR:   If the Court pleases.

HIS HONOUR:   The plaintiff is a citizen of Nepal whose application for a protection visa was refused by a delegate of the Minister. On 15 May 2015, the plaintiff, having failed to respond to an invitation to appear, the Refugee Review Tribunal affirmed a delegate’s decision in the absence of the plaintiff in the exercise of the Tribunal’s discretion under section 426A of the Migration Act 1958 (Cth). The Tribunal later received a response from the plaintiff purporting to accept the invitation that had been made.

On 3 November 2015, Judge Street in the Federal Circuit Court dismissed the plaintiff’s application for judicial review of the Tribunal’s decision.  The grounds of that application before the Federal Circuit Court included a complaint that the Tribunal had made a decision without conducting a hearing, which was in substance a complaint that the Tribunal had denied the present plaintiff procedural fairness.

On 24 March 2016, Justice Flick in the Federal Court refused the plaintiff’s application for an extension of time to seek leave to appeal from the decision of Judge Street in the Federal Circuit Court.  On 22 April 2016, the plaintiff filed in the original jurisdiction of this Court an application for an order to show cause.  The plaintiff seeks by that application a writ of mandamus directed to the successor of the Tribunal.  The application also seeks orders in the nature of certiorari quashing the orders of the Federal Circuit Court and the Federal Court.

The underlying complaint of the plaintiff in this application is that the Tribunal denied her procedural fairness in affirming the decision of the delegate in her absence as a result of failing lawfully to exercise the discretion conferred by section 426A. The gravamen of the complaint, as articulated on her behalf by Mr Kumar, is that the Tribunal failed to ask itself the correct question or failed to consider whether to exercise the discretion by reference to mandatory relevant considerations, including principally a consideration of whether she had actually received the invitation. Judge Street and Justice Flick, Mr Kumar argues in his written submissions, consecutively failed to address that central issue.

The plaintiff fails to explain how the Act gives rise to the mandatory considerations which she says were not taken into account.  As the written submissions of Ms Francois, on behalf of the first respondent, correctly point out, the scheme of Division 7A of Part 7 of the Act prescribing the method of giving documents and deeming receipt tells against such a construction.  In the circumstances of the present case, the plaintiff has, in my view, failed to establish that there is substance in the underlying complaint.  The sparsity of the Tribunal’s reasoning in relation to the exercise of discretion does not lend substance in itself to the complaint.

There are, in any event, other insuperable difficulties with the application as it is now framed.  To the extent that the application now seeks judicial review of the decision of the Tribunal, the application is outside the 35‑day period for the making of such an application set by section 486A of the Act.  Accordingly, the plaintiff seeks an order under that section extending the time for the making of the application. 

The making of such an order would not be in the interests of justice.  That is because, in challenging the decision of the Tribunal, the plaintiff seeks to litigate in the original jurisdiction of this Court a claim capable of being made in the proceeding that she brought in the Federal Circuit Court and that she then took, or attempted to take, on appeal to the Federal Court. 

As I said in Plaintiff S3/2013 v Minister for Immigration and Citizenship & Anor (2013) 87 ALJR 676 at 678, to permit an unsuccessful applicant for review in the Federal Circuit Court simply to start again in the original jurisdiction of the High Court would be inconsistent with the nature of the power already exercised by the Federal Circuit Court and subversive of the processes that exist for appeal under that statute from that court to the Federal Court and ultimately, by special leave, to this Court under section 73 of the Constitution.

To the extent that the application seeks to impugn the orders of Judge Street and Justice Flick, the application fails to disclose an arguable basis for considering either of those sets of orders to have been made with want of or excess of jurisdiction. Neither before Judge Street nor before Justice Flick did the plaintiff seek to impugn the exercise of the discretion conferred by section 426A in the way that is now put. As Justice Flick recognised, Judge Street addressed each of the grounds of the application that was made to him.

Justice Flick, addressing the issues raised before him, concluded that there was no sufficiently arguable error apparent from Judge Street’s reasons.  Mr Kumar does not suggest that Justice Flick misunderstood the content of Judge Street’s reasons in reaching that conclusion. 

In the result, I am satisfied that the application for an order to show cause must be dismissed.  The orders I make are as follows:

1.The application for an order under section 486A(2) of the Migration Act 1958 (Cth) is refused.

2.        The application for an order to show cause is dismissed.

3.        The plaintiff is to pay the costs of the first defendant.

MS FRANCOIS:   As the Court pleases.

MR KUMAR:   If the Court pleases.

HIS HONOUR:   Thank you very much.

AT 11.44 AM THE MATTER WAS CONCLUDED