BKV15 v Minister for Immigration and Border Protection & Anor

[2018] HCATrans 108

[2018] HCATrans 108

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M130 of 2017

B e t w e e n -

BKV15

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

Application for order to show cause

BELL J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON THURSDAY, 31 MAY 2018, AT 11.02 AM

Copyright in the High Court of Australia

MR R.C. KNOWLES:   Your Honour, if it pleases the Court, I appear for the first defendant.  (instructed by Clayton Utz Lawyers)

HER HONOUR:   Thank you, Mr Knowles.  Is there an appearance for the plaintiff?

MR KNOWLES:   It does not seem so, your Honour.

HER HONOUR:   Perhaps if the plaintiff might be called.

MR KNOWLES:   If your Honour pleases.

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Thank you.  Yes, Mr Knowles.

MR KNOWLES:   Yes, thank you, your Honour.  Perhaps before coming to the question of what should occur in the circumstances of there being no appearance by the plaintiff, if I could just go through the materials before the Court.  Your Honour should have a copy of the plaintiff’s application for an order to show cause and the summons accompanying it as well as the plaintiff’s affidavit dated 11 September 2017 and also an outline of submissions filed by the plaintiff on 12 September 2017.

HER HONOUR:   Could you just bear with me, Mr Knowles, while I make sure I have those?  Yes, I have the plaintiff’s outline of submissions.  Yes, Mr Knowles.

MR KNOWLES:   Yes, thank you, your Honour.  Does your Honour have the plaintiff’s affidavit filed on the 12 September 2017 but dated 11 September 2017?

HER HONOUR:   Yes, I do.

MR KNOWLES:   Thank you, your Honour.  In terms of the material filed and served by the first defendant, your Honour should have the affidavit of my instructor, Mr Vincenzo Murano dated 17 May 2018.

HER HONOUR:   Yes, I have that.

MR KNOWLES:   May I take that affidavit as read, your Honour?

HER HONOUR:   You may.

MR KNOWLES:   Thank you, your Honour.  There is also the first defendant’s outline of submissions dated 24 May 2018?

HER HONOUR:   Yes, thank you, I have those and again, you may take those as read.

MR KNOWLES:   Yes, thank you, your Honour.  There is also, I suspect, an affidavit recently prepared by my instructor relating to the service of those materials dated 30 May 2018.  Does your Honour have that affidavit?

HER HONOUR:   Yes, I do.  So that, again, this would establish, Mr Knowles, that the plaintiff has been served with a copy of the submissions that your instructing solicitor filed on 24 May 2018 which foreshadowed an application for dismissal of the proceeding.

MR KNOWLES:   Yes, that is correct, your Honour, and as occurred in another matter this morning, in addition to those submissions there is also the earlier correspondence from my instructor to the plaintiff relating to the intention to seek summary dismissal at any hearing before the Court.  That correspondence your Honour will find exhibited to the first affidavit of Mr Murano, being the affidavit dated 17 May 2018 at exhibit VM‑7, and that exhibit commences at page 103 in the bundle that is the affidavit.  Your Honour will see there the correspondence date of 4 April 2018.  Thank you, your Honour.

HER HONOUR:   Yes, I see that.  Thank you, Mr Knowles.

MR KNOWLES:   So, again, in this matter it is submitted that by virtue of communications as to the hearing date from the Court to the plaintiff, the plaintiff should be aware of the hearing date and otherwise the plaintiff has been made aware of the first defendant’s intention to seek summary dismissal of the proceeding at the hearing.  In those circumstances, unless there is anything specifically that your Honour wishes me to address in oral submissions, the Minister would simply seek to rely on the written submissions in support of seeking summary dismissal of the matter today.

HER HONOUR:   Yes, thank you, Mr Knowles.

On 12 September 2017, the plaintiff filed an application for an order to show cause seeking to challenge a decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 June 2015. 

The plaintiff is unrepresented and has not appeared on the hearing.  The second defendant has filed a submitting appearance.  The first defendant (“the Minister”), in written submissions filed on 24 May 2018 and served on the plaintiff, opposes the making of an order extending time in which to challenge the Tribunal’s decision submitting that the application is an abuse of process and, in the alternative, that the proceeding has no reasonable prospect of success.  The Minister invites the Court to dismiss the application with costs.

The evidence establishes that the plaintiff is a citizen of Sri Lanka.  On 12 November 2012, the plaintiff applied for a protection visa.  The plaintiff claimed that on return to Sri Lanka he would face a real chance of serious or significant harm from the Sri Lankan authorities on account of his Tamil ethnicity and his imputed political opinion in support of the Liberation Tigers of Tamil Eelam.  On 4 March 2014, a delegate of the Minister made a decision not to grant the plaintiff a protection visa.

On 7 March 2014, the plaintiff applied to the Tribunal for a review of the delegate’s decision.  On 18 June 2015, the Tribunal affirmed the delegate’s decision.  The Tribunal found that the plaintiff had fabricated most of his claims.  The Tribunal did not accept that on return to Sri Lanka the plaintiff would face a real chance of serious or significant harm from the Sri Lankan authorities on account of his ethnicity or any imputed political opinion.

On 17 July 2015, the plaintiff applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.  The plaintiff claimed, without further particularisation, that the Tribunal’s decision “was affected by legal error”.  On 14 February 2017, the Federal Circuit Court dismissed the plaintiff’s application.  The Federal Circuit Court found that the plaintiff had been, in substance, asking it to engage in merit review.  The Federal Circuit Court detected no error in the Tribunal’s decision.

On 15 March 2017, the plaintiff applied to the Federal Court of Australia for an extension of time in which to appeal from the orders of the Federal Circuit Court. In support of his application, the plaintiff filed a draft notice of appeal. On 8 May 2017, the plaintiff filed an amended draft notice of appeal in the Federal Court. By his amended notice the plaintiff sought to advance a new argument that had not been agitated before the Federal Circuit Court. He sought to argue that in refusing a request to adjourn the hearing the Tribunal had failed to comply with the requirements of section 425 of the Migration Act 1958 (Cth) or had otherwise acted in a legally unreasonable manner.

On 22 August 2017, the Federal Court refused the plaintiff’s application for an extension of time in which to appeal.  Justice North considered that the plaintiff’s proposed challenge was bound to fail.  No appeal lies to this Court from that refusal[1].  The relief claimed in the show cause application is directed to the Tribunal’s decision.  The grounds on which the relief is claimed do not refer to the Tribunal’s decision but make an unparticularised claim of jurisdictional error by the Federal Court.  In his affidavit made on 11 September 2017, the plaintiff asserted that the Tribunal’s decision is affected by jurisdictional error and that he would identify further errors in the Federal Court’s decision when provided with a copy of it.  As noted, the claims for relief are directed to the Tribunal’s decision.  The plaintiff invoked the jurisdiction of the Federal Circuit Court to review that decision for jurisdictional error.

[1]  Federal Court of Australia Act 1976 (Cth), ss 33(4B) and 25(2)(b).

To allow the plaintiff to bring the same challenge in the original jurisdiction of this Court absent some special circumstance would be subversive of the due administration of justice.  No such circumstance is identified in the material filed in support of the application.  That material does not disclose an arguable basis for the relief claimed.  For these reasons I make the following order:  the application is dismissed with costs.

Thank you, Mr Knowles.  The Court will now adjourn.

AT 11.15 AM THE MATTER WAS CONCLUDED