BLS16 v Minister for Home Affairs & Ors

[2019] HCATrans 115

[2019] HCATrans 115

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S74 of 2019

B e t w e e n -

BLS16

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 4 JUNE 2019, AT 9.32 AM

Copyright in the High Court of Australia

HER HONOUR:   On 18 March 2019, the plaintiff filed an application for a constitutional or other writ seeking relief in relation to a decision of the second defendant to affirm a decision of a delegate of the first defendant not to grant the plaintiff a protection visa.  The plaintiff also sought relief in relation to a decision of the third defendant to refuse the plaintiff an extension of time in which to appeal the dismissal of the plaintiff’s application for judicial review of the second defendant’s decision.

For the reasons that I now publish, the application for a constitutional or other writ should be dismissed with costs.  I publish those reasons.

In matter S74 of 2019, the order of the Court is:

1.The plaintiff’s application for a constitutional or other writ filed on 18 March 2019 is dismissed with costs.

I publish that order.

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

On 18 March 2019, the plaintiff filed an application for a constitutional or other writ. The application seeks relief in relation to a decision of the second defendant, the Administrative Appeals Tribunal (“the Tribunal”), to affirm a decision of a delegate of the first defendant, the Minister for Home Affairs (“the Minister”), not to grant the plaintiff a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth). The application also seeks relief in relation to a decision of the third defendant, the Federal Court of Australia, in which Derrington J refused the plaintiff an extension of time to appeal from a decision of the Federal Circuit Court of Australia, which had, in turn, dismissed the plaintiff’s application for judicial review of the decision of the Tribunal. The Minister filed an appearance and provided the Court with written submissions[1]. 
For the reasons that follow, the application for a constitutional or other writ should be dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

[1]The second and third defendants each filed a submitting appearance.

Procedural history

On 21 April 2014, the plaintiff, a citizen of Bangladesh, arrived in Australia as the holder of a one‑month Business Visitor (Class FA) (Subclass 600) visa.  On 20 May 2014, the plaintiff applied for a Protection (Class XA) visa.  Despite being invited to attend a protection visa interview, he did not do so.  On 10 December 2014, his application for a Protection (Class XA) visa was refused by a delegate of the Minister on the papers.

On 22 December 2014, the plaintiff applied to the Tribunal for review of the delegate's decision. On 4 May 2016, the plaintiff attended a hearing before the Tribunal to give evidence and present arguments with the assistance of an interpreter. On 17 May 2016, the Tribunal decided that the plaintiff had not met the criteria in s 36 of the Migration Act and affirmed the delegate's decision[2].  The Tribunal made a number of significant findings:  that the plaintiff was not a witness of truth; that there were inconsistencies in his account; and that there was no credible evidence before the Tribunal that the plaintiff had suffered harm in Bangladesh or that anyone in Bangladesh sought to harm him.

[2]See BLS16 v Minister for Immigration and Border Protection [2018] FCCA2384 at [19].

On 15 June 2016, the plaintiff sought judicial review of the Tribunal's decision in the Federal Circuit Court.  The plaintiff attended the hearing on 19 September 2017.  On 31 August 2018, Judge Dowdy dismissed the application with costs[3].

[3]BLS16 v Minister for Immigration and Border Protection [2018] FCCA2384.

The plaintiff did not file a notice of appeal within time[4]. Six days late, on 27 September 2018, the plaintiff filed an application in the Federal Court for an extension of time to file a notice of appeal. That application was heard by Derrington J on 21 February 2019. On 22 February 2019, his Honour refused the application with costs (“the Federal Court Decision”)[5].  It is necessary to address some aspects of that decision.

[4]See Federal Court Rules 2011 (Cth), r 36.03(a)(i).

[5]BLS16 v Minister for Immigration and Border Protection [2019] FCA192.

After summarising the facts and the proceedings before the Tribunal and the Federal Circuit Court, identifying the “central factors” to which the Court ought usually to have regard in exercising the discretion to extend the time in which a party may appeal, and considering that the Minister acknowledged he would suffer no prejudice by reason of the grant of an extension of time, Derrington J stated that the merits of the proposed appeal grounds were frequently determinative of whether any extension of time would be granted.  His Honour then addressed each of the five proposed appeal grounds and concluded that each lacked any sufficient merit to warrant an extension of time being granted.  His Honour concluded that none of the grounds advanced, nor any of the general allegations in the plaintiff's written submissions, had any merit.  Derrington J refused the application for an extension of time with costs.

On 18 March 2019, the plaintiff filed his application for a constitutional or other writ.  It is necessary to address the relief sought.

First, the plaintiff seeks certiorari quashing the Federal Court Decision (prayer 1). Second, the plaintiff seeks a declaration that s 33(4B) of the Federal Court of Australia Act 1976 (Cth) is invalid to the extent that the section prohibits appeals from the Federal Court to this Court inconsistently with Ch III of the Constitution (prayer 2).  Third, the plaintiff seeks leave to file an application for special leave to appeal the Federal Court Decision, and that special leave be granted (prayers 3 and 4).  Fourth, the plaintiff seeks an order that the Tribunal’s decision be quashed, an injunction in relation to that decision, and an extension of time (prayers 5 and 6).  Fifth, the plaintiff seeks an order for costs in relation to the proceeding in the Federal Court and the application for a constitutional or other writ (prayers 7 and 8).  It is necessary to address each in turn.

Certiorari to quash the Federal Court Decision (prayer 1)

The relief sought is misplaced.  Certiorari “is not an appellate procedure enabling either a general review of the order or decision ... or a substitution of the order or decision which the superior court thinks should have been made”[6].  Certiorari is available against the orders of a superior court where orders are made in excess of jurisdiction[7].

[6]Craig v South Australia (1995) 184 CLR 163 at 175; [1995] HCA 58.

[7]Edwards v Santos Ltd (2011) 242 CLR 421 at 428 [17], 439 [46]; [2011] HCA8; New South Wales v Kable (2013) 252 CLR 118 at 140 [55]; [2013] HCA 26.

The Federal Court had before it an application for an extension of time to file a notice of appeal. Rule 36.05 of the Federal Court Rules 2011 (Cth) vests in the Federal Court a broad discretion to determine whether or not to grant an extension[8].  When an application is made for an extension of time in which to bring an appeal, “it is always necessary to consider the prospects of the applicant succeeding in the appeal”[9].  The plaintiff does not assert that the Federal Court has acted without or beyond its jurisdiction and it did not.

[8]See AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 341 at 343‑344 [10]‑[12].

[9]Gallo v Dawson (1990) 64 ALJR 458 at 459; 93 ALR 479 at 480; [1990] HCA30. See also Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349.

Declaration in relation to s 33(4B) of the Federal Court of Australia Act and the application for special leave (prayers 2 to 4)

Section 33(4B)(a) of the Federal Court of Australia Act, read with s 25(2)(b), precludes an application for special leave to appeal in relation to a decision of the Federal Court not to grant an extension of time to institute an appeal.

The plaintiff’s application for a constitutional or other writ contends that s 33(4B) is invalid because it is inconsistent with Ch III, and in particular s 73[10], of the Constitution.  That contention should be rejected.

[10]While the plaintiff’s application for a constitutional or other writ refers to s 76 of the Constitution, it is assumed that the plaintiff intended to refer to s 73 of the Constitution.

The Minister accepted that where a cause pending in the High Court involves a matter arising under the Constitution or involving its interpretation, it is the duty of the Court under s 78B(1) of the Judiciary Act 1903 (Cth) not to proceed in the cause unless and until the Court is satisfied that notice of the cause has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.

The plaintiff’s application for a constitutional or other writ does not engage s 78B. To the extent that the application for a constitutional or other writ concerns an application for special leave, such an application is not a cause pending[11].  It is in the nature of an interlocutory proceeding by which a party seeks to engage the jurisdiction of the Court[12].

[11]See Collins v The Queen (1975) 133 CLR 120 at 122‑123; [1975] HCA 60.

[12]See Re Sinanovic's Application (2001) 180 ALR 448 at 450 [7]; [2001] HCA40.

Moreover, a cause does not “‘involve’ a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does”[13]. Put in different terms, the obligation in s 78B will not be engaged where the asserted matter arising under the Constitution or involving its interpretation is “hopeless”[14], “trivial, unarguable or concluded”[15], or “frivolous or vexatious or raised as an abuse of process”[16].

[13]Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74, quoted in Glennan v Commissioner of Taxation (2003) 77 ALJR 1195 at 1197‑1198 [14]; 198 ALR 250 at 253; [2003] HCA 31. See also Al‑Dmour v Minister for Immigration and Border Protection [2018] HCATrans 205.

[14]MZAHH v Federal Circuit Court of Australia [2016] HCATrans 177 at line 1086.

[15]Deputy Commissioner of Taxation v Warrick [No 2] (2004) 56 ATR 371 at 396 [103].

[16]Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 95 FCR 292 at 297 [14].

The contention that s 33(4B)(a) of the Federal Court of Australia Act is invalid has been previously considered by this Court and rejected[17].  The plaintiff’s contention is hopeless and should be rejected for the same reasons.

[17]See Plaintiff S208/2018 v Minister for Home Affairs [2019] HCATrans 3. See also AIL16 v Minister for Immigration and Border Protection [2018] HCATrans 161 (unreported).

Judicial review of the Tribunal's decision and the remaining relief sought (prayers 5 to 8)

The application for review of the Tribunal’s decision requires an extension of time under s 486A(2) of the Migration Act and an enlargement of the time prescribed under r 25.02.2 of the High Court Rules.  There is no basis for this Court to exercise its discretion to grant the plaintiff an extension of time to seek review of the Tribunal’s decision.  The plaintiff’s application for judicial review has already been heard and determined by the Federal Circuit Court.  Any further challenge to the Tribunal's decision is an abuse of process or an attempt to use the jurisdiction of this Court to issue constitutional writs to circumvent the appellate process[18].

[18]See Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at 678 [13]; 297 ALR 560 at 563; [2013] HCA 22. See also Re Heerey; Ex parte Heinrich (2001) 185 ALR 106 at 109 [17]; [2001] HCA 74; Glennan (2003) 77 ALJR 1195 at 1198 [17]; 198 ALR 250 at 254‑255.

The plaintiff also seeks that the Tribunal’s decision be quashed, an injunction in relation to the Tribunal’s decision, and the costs orders identified above.  The plaintiff has not identified a proper basis for the grant of such relief.

Conclusion and orders

For those reasons, the application for a constitutional or other writ does not disclose an arguable basis for the relief sought and is otherwise an abuse of the process of the Court. Pursuant to r 25.09.1 of the High Court Rules, the plaintiff’s application filed on 18 March 2019 should be dismissed with costs.

AT 9.33 AM THE MATTER WAS CONCLUDED