BIZ15 & Anor v Minister for Immigration and Border Protection & Ors

[2018] HCATrans 43

[2018] HCATrans 043

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M188 of 2017

B e t w e e n -

BIZ15

First Plaintiff

BJA15

Second Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL CIRCUIT COURT OF Australia

Third Defendant

Application for an order to show cause

GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON WEDNESDAY, 7 MARCH 2018, AT 10.44 AM

Copyright in the High Court of Australia

____________________

MR L.T. BROWN:   If your Honour pleases, I appear for the first defendant.  I cannot see the plaintiff in Court. (instructed by Australian Government Solicitor) 

HIS HONOUR:   Have the matter called outside the Court in Canberra and in Melbourne, please.

COURT OFFICER:   No appearance in Melbourne, your Honour.

COURT OFFICER:   No appearance in Canberra, your Honour.

HIS HONOUR:   Thank you.  Mr Brown, what evidentiary material should I have before me?

MR BROWN:   Your Honour should have an affidavit of the first plaintiff which was filed on 21 December 2017.

HIS HONOUR:   Yes.  I propose to read that affidavit unless you have any objections.

MR BROWN:   No, your Honour.

HIS HONOUR:   Thank you.

MR BROWN:   Then there is an affidavit from an instructing solicitor of mine, Ashlee Louise Briffa, which was filed on 27 February 2018. 

HIS HONOUR:   Yes, thank you.  I read that affidavit.

MR BROWN:   They are the two affidavits that have been filed in the proceeding, your Honour.

HIS HONOUR:   Thank you.  What material then do I have to indicate that the plaintiff has had adequate notice of the matter being listed today?

MR BROWN:   I will get some instructions from my instructor, if your Honour pleases.  Your Honour, I have just been handed by my instructor a letter from my instructors to the plaintiffs at their address notified on the material filed with the High Court, enclosing my submissions in this proceeding, together with a confirmation that the hearing would take place today at 10.15 am.  That is dated 27 February 2018. 

HIS HONOUR:   Thank you.  I will admit that letter into evidence and have it marked Exhibit 1.

EXHIBITExhibit 1…..Letter from Australian Government Solicitor to the plaintiffs dated 27 February 2018

We do not actually have a copy of it here so you will need to give it to the Deputy Registrar in Melbourne.

MR BROWN:   Yes.  The Deputy Registrar does not appear to be in Court right now, your Honour.  When she comes back I will hand it to her.

HIS HONOUR:   Yes, thank you.  We will treat that as in evidence.  I take it that there was no response to that.

MR BROWN:   No, your Honour.

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

MR BROWN:   As your Honour pleases.

HIS HONOUR:   Before me is an application for an order to show cause filed in the original jurisdiction of the Court.  There are three named defendants.  The first defendant is the Minister for Immigration and Border Protection, who appears in opposition to the application.  The second and third defendants are the Administrative Appeals Tribunal and the Federal Circuit Court, each of which has filed a submitting appearance. 

The application seeks a writ of certiorari directed to the Federal Circuit Court and a writ of mandamus directed to the Tribunal.  The plaintiffs are unrepresented.  They have failed to appear despite being given notice of the listing of the application today.  I proceed to assess the merits of the application in their absence.

The plaintiffs are citizens of India.  After entering Australia, each applied for a protection visa.  The primary visa applicant was the first plaintiff.  The second plaintiff is the first plaintiff’s wife.  The first plaintiff claimed to fear persecution in India as a result of his involvement with and his support for the Congress Party.  A delegate of the Minister refused the first plaintiff’s application in August 2013. 

In September 2013, the plaintiffs applied to the Refugee Review Tribunal for review of the delegate’s decision. 

In the Tribunal, the first plaintiff claimed that he was a supporter of the Congress Party from Gujarat and that he had been threatened by members of the Bharatiya Janata Party.  The Tribunal was not satisfied that he was involved in politics in India or that the claimed events occurred.  It therefore did not accept that the plaintiffs faced a real chance of serious harm were they to be returned to India, and affirmed the delegate’s decision.

More than a year beyond the 35‑day period prescribed by section 477 of the Migration Act 1958 (Cth), the plaintiffs applied to the Federal Circuit Court for an extension of time within which to bring judicial review proceedings in relation to the Tribunal’s decision.

Before the Federal Circuit Court, the plaintiffs’ main proposed ground of review was an allegation of a denial of procedural fairness on the part of the Tribunal.  Judge Wilson dismissed the plaintiffs’ application:  see BIZ15 & Anor v Minister for Immigration and Anor [2017] FCCA 2861. His Honour found that the Tribunal sent the plaintiffs correspondence acknowledging receipt of the review application and inviting them to attend a hearing, that correspondence being sent to the plaintiffs’ nominated address for service. The plaintiffs did not respond to the hearing invitation and did not appear at the scheduled hearing. The Tribunal proceeded to determine the matter in their absence.

The application now before me is for judicial review of the same decision of the Tribunal.  It was commenced shortly after the decision of the Federal Circuit Court.  It requires a considerable extension of time, as it has been made more than three years after the time allowed by section 486A of the Act.  The application identifies the substantive grounds on which relief is claimed as follows:

“There was certain adverse information used by the Federal Circuit Court to refused the application for an extension of time and the court did not disclose the information in accordance with s 424A (1).

The Federal Circuit Court’s decision was in breach of s 424A of the Migration Act . . . and therefore fall under jurisdictional error.”

To the extent that the plaintiffs seek to quash the decision of the Federal Circuit Court, it is sufficient to state that the reasons of that court disclose no error, much less one going to its jurisdiction.  To the extent that the plaintiffs seek to quash the Tribunal’s decision, the application constitutes an abuse of process.  The plaintiffs have had the opportunity and were unsuccessful in their application for judicial review of the Tribunal’s decision in the Federal Circuit Court.  The orders I make are as follows:

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

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

3.The plaintiffs are to pay the first defendants’ costs.

AT 10.53 AM THE MATTER WAS CONCLUDED