Callover, Sydney

[2005] HCATrans 615

[2005] HCATrans 615

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  

CALLOVER OF 6 IMMIGRATION

MATTERS

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 24 AUGUST 2005, AT 10.00 AM

Copyright in the High Court of Australia

At 10.00 am Plaintiff S91/2005 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor was called.

PLAINTIFF S91/2005 appeared in person.

MR A. MARKUS:   If your Honour pleases, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Is an interpreter needed in this?

THE INTERPRETER:   Yes, your Honour.

FAROOQUE AHMED KHAN, sworn as interpreter:

HIS HONOUR:   In this matter the Deputy Registrar of the High Court has been advised by the solicitor for the second respondent that the second respondent will submit to the order of the Court save as to costs. 

Unfortunately, I cannot call you by your name because of legislation, so I will just refer to you as the respondent.  This is an application by the Minister to strike out your various documents that you have filed in this Court on the ground that it is an abuse of process.  Do you understand that?

PLAINTIFF S91/2005 (through interpreter):   Yes.

HIS HONOUR:   Under the procedure of this Court, Mr Markus, who appears for the Minister, will put his arguments, then you will have an opportunity to put an argument in reply.

Mr Markus, you move on the affidavit of Andrew John Crockett sworn on 19 April?

MR MARKUS:   Yes, your Honour, I read that affidavit and move on the summons filed on 19 April.

HIS HONOUR:   I have read that affidavit and it can be taken as read and filed for the purpose of the proceedings.  I have read your submissions and I have read the affidavit.  Is there anything further that you want to put in addition to what is already in the affidavit?

MR MARKUS:   Very briefly.  The summons refers to abuse of process which is the basis upon which summary dismissal is sought.  Your Honour, the first defendant’s position is that the plaintiff is either estopped from bringing these proceedings or the proceedings constitute an abuse of process.  Insofar as the issue of whether there is a mandatory bar on these proceedings is concerned, very briefly my client’s argument is that the decision of the Refugee Review Tribunal which was made in December 1998 has previously been subject of a number of proceedings.

HIS HONOUR:   Yes, it went before Mr Scarlett in November 2004 and Justice Moore gave his decision on 17 February 2005 and then the writ was filed here on 14 March, I think.

MR MARKUS:   Yes, your Honour.  There is a possible argument that the present proceedings are affected by the doctrine of res judicata.  We would say that even if that is not so, issue estoppel would apply.  If I can just very briefly refer your Honour to the pleadings, if your Honour looks at page 3 of the application for an order to show cause, your Honour will see that at line 10 the grounds are set out.  If one attempts to summarise the grounds there pleaded, there is an allegation of an error of law, there is an allegation of a denial of procedural fairness and natural justice, and there is an allegation of a constructive failure to exercise jurisdiction. 

If your Honour compares those allegations with the pleadings below, if I could refer your Honour to the amended grounds of review which commences at page 26 of Mr Crockett’s affidavit, your Honour will see that at paragraph 3 there is an allegation in the last paragraph of page 26 of a constructive failure to exercise jurisdiction.  In the second paragraph of the following page, page 27, there is an allegation of a denial of procedural fairness, which is repeated at paragraph 4.  In the second paragraph of paragraph 4 there is an allegation of an error of law.  So, your Honour, even if one approaches this matter on the basis that the cause of action is identified by the grounds of the application as opposed to the challenge to the decision of the Tribunal itself, we would say that issue estoppel applies. 

Alternatively, my client’s submission is that because the jurisdiction exercised by Federal Magistrate Scarlett was that provided for under section 483A of the Migration Act, which gives that court jurisdiction equivalent to that exercised by the Federal Court, which is section 39B jurisdiction, the court exercised jurisdiction which is equivalent to the jurisdiction that the present plaintiff seeks to invoke in this Court. That is section 75(v) jurisdiction. Even if all of those arguments are put to one side, your Honour, we would say that this proceeding ought to be dismissed as an abuse of process for reasons that have been outlined by this Court in the well‑known case of Walton v Gardiner.  I do not know whether your Honour needs a reference to that.

HIS HONOUR:   No.

MR MARKUS:   Unless your Honour has any issues, those are my submissions.

HIS HONOUR:   Yes, thank you, Mr Markus.  You have heard what Mr Markus has said.  What do you wish to say in answer to those?

PLAINTIFF S91/2005 (through interpreter):   Your Honour, I told you before that – in my application I told that I did not get justice or fairness and also I got advice from solicitor.  Her name is Mrs Sheila Kaur‑Bains and she advised me that she did not think that I will win this case but, if I won, she can fight for me.  Because her fees are a little bit expensive, I am trying to…..some money, then I will go and see her to fight for me.  That is why I need some more times.

HIS HONOUR:   Need?

PLAINTIFF S91/2005 (through interpreter):   Some more times, more times.

HIS HONOUR:   Is this an application for an adjournment?

PLAINTIFF S91/2005 (through interpreter):   Yes, your Honour.

HIS HONOUR:   Why should I grant you an adjournment?  This matter has been before the courts on numerous occasions since 1998 and you filed your application on 14 March, which is over five months ago.

PLAINTIFF S91/2005 (through interpreter):   Asking Mrs Sheila Kaur‑Bains for her fees, about $2,000.  I have to earn this money.  That is why I need more time.

HIS HONOUR:   It seems to me that the Court is not justified in adjourning the application.  The grounds upon which you rely are very weak indeed, and to grant you an application would do no more than prolong a final decision in this matter in a case that has now been going for almost seven years.  So continue with your argument, please.

PLAINTIFF S91/2005 (through interpreter):   That is all I have to say but I would like to add some more, that the Minister’s solicitor – I mean the opposition party is telling me that Bangladesh situation is very good at the moment but…..reports said that Bangladesh situation is not good, so I cannot go back to Bangladesh on my own.

HIS HONOUR:   Well, this Court can only deal with questions of constitutional law and the matters that you refer to are matters for the Minister, not for this Court.  Is there anything further that you wish to say about the matter?

PLAINTIFF S91/2005 (through interpreter):   No, I do not have to say any more.

HIS HONOUR:   Thank you.  I need not hear you in reply, Mr Markus.

The plaintiff is a citizen of Bangladesh and claims to have been a member of the Bangladesh National Party, a political organisation in that country.  On 7 December 1998 the Refugee Review Tribunal rejected his application for a review of the Minister’s delegate’s decision not to grant him a protection visa.  The Federal Magistrates Court dismissed an appeal against the Tribunal’s decision on 3 November 2004.  The plaintiff then sought unsuccessfully an extension of time in which to file a notice of appeal against the federal magistrate’s decision.  On 17 February this year Justice Moore in the Federal Court dismissed the plaintiff’s application.

On 14 March 2005 the plaintiff filed a summons in this Court as well as submissions seeking the issue of constitutional writs directed to the Minister and the Tribunal seeking orders that the Tribunal’s decision be quashed, that no action be taken against the plaintiff in reliance upon the Tribunal’s decision, that the plaintiff be declared a person to whom Australia owes obligations under the Refugees Convention and the protocol to that Convention, and that the relevant time limits for making orders be extended.

By summons supported by an affidavit of a solicitor employed in the Sydney office of the Australian Government Solicitor, the Minister asked that the proceedings commenced by the plaintiff in this Court be struck out as an abuse of process.  In my view this submission should be upheld.  There are a number of reasons why that is so.  The case is one that simply turned on its facts.  The Tribunal rejected the plaintiff’s claim that he had been a supporter of a Bangladeshi author whose book, Shame, had caused controversy in Bangladesh.  The Tribunal found that his willingness to fabricate and maintain this claim cast considerable doubt on his overall credibility.  It did not believe that he had entered Australia on a false passport and found that other supporting documents had been fabricated.  It further held that, even if the plaintiff’s claims about violence and threatened arrest were true, the plaintiff had not shown that he had a claim under the Convention.  This was because Australia does not owe obligations to persons involved in violent acts in countries like Bangladesh which are democracies. 

In substance the plaintiff’s claim of jurisdictional error largely amounts to a complaint that the Tribunal rejected his evidence.  That raises no question of law, let alone a question going to the jurisdiction of the Tribunal. 

The plaintiff also claims that the decisions made on 29 May 1997 and 7 December 1998 were affected by lack of procedural fairness.  There is nothing in the reasons which supports that.  The applicant has filed and referred today to a written opinion of a lawyer dated 21 September 2004 which contains the following paragraph:

You have told me that the Tribunal did not ask you to comment on document fraud and that the Court documents and letters were forged.  You say that if you had been given an opportunity to comment then you would have provided more information to support the fact that the court documents and the letters were genuine. 

However, I advised you that even if the Tribunal has denied you procedural fairness if the Court finds that the failure did not make a difference to the decision made by the Tribunal then you will lose at the hearing.  As I said to you the Tribunal does say in its decision that even if it is wrong and the Court documents are genuine then the Tribunal finds that you still do not have a well‑founded fear of being persecuted because the judiciary is independent in Bangladesh and if you had stayed in Bangladesh then you would have been able to defend the charges.  Also the Tribunal says that if it accepts the letters as being genuine then the letters simply say that you were a member of the BNP and an official at the local branch, but the Tribunal found that your claims did not give rise to you being a refugee.  Given this I think that the Court may find that the Tribunal’s failure to accord you procedural fairness did not result in the error infecting the decision made.

As appears from the advice which was tendered, the reasons of the Tribunal and the reasons of the magistrate, it appears to me to be quite clear that, even if the plaintiff should have been given an opportunity to make a comment on these documents, he could not possibly succeed in the relief he seeks in this Court.  But there is also the question of issue estoppel.  The matters he now seeks to raise in this Court were raised at earlier stages of the proceedings before the federal magistrate.  The plaintiff lost on those issues and he now seeks to once again raise those issues.  At paragraph 35 of the reasons of the learned federal magistrate the magistrate said:

I am not satisfied that there has been any failure by the tribunal to exercise its jurisdiction.  I am not satisfied there has been any lack of procedural fairness.  In my view the tribunal considered the matters raised by the Applicant but on assessing the evidence was not satisfied that the Applicant’s evidence should be accepted.  That is a decision within the province of the Refugee Review Tribunal.  There is no reviewable error and the application is dismissed.

The Federal Magistrates Court was exercising federal jurisdiction in the proceedings in accordance with the provisions of s 483A of the Migration Act which is equivalent to the jurisdiction exercised by the Federal Court under s 39B of the Judiciary Act. So far as is relevant, it is the equivalent of the jurisdiction under s 75(v) of the Constitution which the plaintiff seeks to invoke in this Court. The issues that he now seeks to raise in this Court have therefore been judicially determined by a court of competent jurisdiction and cannot be re‑litigated in the original jurisdiction of this Court.

Accordingly, for those reasons the present summons seeking the issue of constitutional writs in this Court has no prospect of success in my opinion.  As a result the application should be struck out as an abuse of process.  The application is therefore dismissed with costs.

Anything further, Mr Markus?

MR MARKUS:   If your Honour could certify that it was a proper attendance in Chambers.

HIS HONOUR:   I am not sure you have to do that now under the – no, you do not have to do that under the new Rules.

MR MARKUS:   I am sorry, your Honour, I have not done one of these under the new Rules.

HIS HONOUR:   Thank you.

At 10.24 am Plaintiffs S149/2005 v Commonwealth of Australia was called.

PLAINTIFFS S149/2005 appeared in person.

MR A. MARKUS:    I appear for the defendant, your Honour.  (instructed by Australian Government Solicitor)

HIS HONOUR:   This matter requires an interpreter, I understand, is that so?

THE INTERPRETER:   Yes, your Honour.

HIS HONOUR:   Is the language to be spoken Spanish?

THE INTERPRETER:   That is correct, your Honour.

HIS HONOUR:   There are four other matters that all seem to involve Spanish people.  Are you involved in all those?

THE INTERPRETER:   I understand so, yes.

HIS HONOUR:   Mr Markus, I think I might have all these matters called together.  They seem to me to raise similar issues, given what I am going to say, so I will have them called together.

MR MARKUS:   Can I just mention one matter.  The matter which is matter No S244/2005, your Honour, may be different in that the parties in that matter have agreed to some consent orders.  I do not know whether your Honour wishes to deal with that separately.

HIS HONOUR:   I will deal with it separately then.

At 10.26 am Plaintiffs S149/2005 v Commonwealth of Australia; Plaintiffs S151/2005 v Commonwealth of Australia; Plaintiffs S248/2005 v Commonwealth of Australia & Anor; Plaintiff S250/2005 v Commonwealth of Australia & Anor were called.

MARIE-HELE JENNINGS, sworn as interpreter:

HIS HONOUR:   These matters are before the Court for directions.  The Commonwealth seeks orders that the matters be struck out or the proceedings be dismissed.  Mr Markus, your submission seems to be that the proceedings themselves should be dismissed, is that so?

MR MARKUS:   That is correct, your Honour.

HIS HONOUR:   Mr Markus, I take the view that without an appropriate summons having been filed and served on the defendants, I cannot do that.  I am not going to send this case down to the Federal Court; I am going to deal with this myself.  I will be the duty Judge the week after next and what I propose to do is to put these matters in for hearing on 6 September.  In the meantime you should file a summons as soon as possible to seek a strike-out.

MR MARKUS:   Yes, your Honour.

HIS HONOUR:   I understand that similar proceedings were struck out in the past on a summons by directions but I think proper procedure requires a notice be given.

MR MARKUS:   Yes, your Honour, we will do that.

HIS HONOUR:   Madam Interpreter, will you tell the various parties who are here that the Commonwealth is seeking to strike out their claims and I do not think that the documents are in order for that to be done and that in my view it is necessary for the Commonwealth to file summonses seeking to strike out these proceedings.  I am going to adjourn these matters until 10.00 am on Tuesday, 6 September.  In the meantime the Commonwealth, if it wants to press for these matters to be struck out, must file a summons.

Can you do it by the end of the week, Mr Markus?

MR MARKUS:   Certainly, your Honour.

HIS HONOUR:   These summonses will be filed by the end of the week.  Will they be served, Mr Markus?

MR MARKUS:   Yes, your Honour.  Could I just raise a minor issue in relation to service.  If your Honour looks at any of the documents, the address for service appears to be a post office box, which I do not think is appropriate.  We have been trying to forward documents both to the post office box and to the residential addresses given.  We will do that in the future as well, your Honour, but I just noted that it seems to me to involve some difficulty with service.

HIS HONOUR:   I will make a note of that.  Would you explain that, Madam Interpreter.  Do the parties understand that?

THE INTERPRETER:   Yes, your Honour.

HIS HONOUR:   The matter will go on on that day, that is 6 September.  It will go on for hearing and I will not countenance any application for an adjournment unless there is some extraordinary circumstance.  The Commonwealth has to serve the summonses on the plaintiffs in each of these actions.  Can we have an address for service for each of those parties.  Could you ascertain the address for – is it the same address for service in all of them?

MR MARKUS:   Your Honour, my understanding is that there is an address for service which is given as a post office box which is the same post office box.  There are also residential addresses given for each of the plaintiffs in each matter.

HIS HONOUR:   What is the residential address for service of these plaintiffs?

MR MARKUS:   They are all different, your Honour.

HIS HONOUR:   Yes, but I am asking the interpreter to ask them.  The plaintiff in matter S149/2005, what is the residential address there?

THE INTERPRETER:   Your Honour, excuse me, this lady behind me was asking whether she is allowed to speak to you.

HIS HONOUR:   Yes, certainly, if she can speak in English.

THE INTERPRETER:   Would you like me to write out the addresses, your Honour?

HIS HONOUR:   What I am trying to do is to ensure that the defendants are all served with these summonses and I do not want an application for adjournment on the basis they have not been served with the summons.  The residential addresses in the documents will be the address for service unless there is some change in those addresses.  If there is any change in any of the addresses, then please tell the Court now.

THE INTERPRETER:   No changes.

HIS HONOUR:   Thank you.  I order that matters Plaintiffs S149, S151, S248 and S250/2005 be adjourned until 10.00 am on Tuesday, 6 September 2005.  I order the Commonwealth to file and serve by 5.00 pm on Friday, 26 August a copy of a summons and any supporting documents it relies on to strike out these applications.  The matter will proceed for hearing on 6 September unless some extraordinary event requires the matter to be adjourned.  It is up to the plaintiffs to obtain legal representation if they can but their failure to obtain legal representation will not be regarded by me as a ground for further adjourning the proceedings.  Anything further?

MR MARKUS:   Nothing further, your Honour.

At 10.36 am Plaintiff S244/2005 v Commonwealth of Australia & Anor was called.

PLAINTIFF S244/2005 appeared in person.

MR A. MARKUS:    Your Honour, I appear for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   You have some consent orders, have you?

MR MARKUS:   Yes, your Honour.  The plaintiff is in Court.  If I could seek your Honour’s leave to file in Court consent orders signed by the plaintiff and on behalf of the defendants by myself.  Just for your Honour’s information, in that matter this morning an application has been commenced in the Federal Magistrates Court seeking to review the Tribunal’s decision.  This is just for your Honour’s information, but that is what is happening in fact in that matter.  The present proceedings are proposed to be discontinued with no order as to costs.

HIS HONOUR:   I will certainly be making an order since this is by consent but, Mr Markus, a matter that is becoming of increasing concern in these migration matters is the plaintiffs in these actions going before the Tribunal, going before the Federal Magistrates Court, going before the Federal Court, then coming up here and on the day the matter is on for hearing or the day before, the matter is abandoned or discontinued in some way and then an action is commenced again in front of the Federal Magistrates Court and it winds its way back through the courts again. 

A number of the courts at first instance, in a number of judgments I have read recently, have described these proceedings as an abuse of process, which they appear to be, and they are certainly a waste of the time of this Court and of other courts in the federal judicature structure.  I assume a bridging visa is given or extended each time an application is brought in some court.  For the protection of the courts, some serious consideration is going to have to be given to how the department and others deal with these matters once the matter has been through the federal judicial system and all remedies are exhausted.

MR MARKUS:   May I respond to that, your Honour?

HIS HONOUR:   Yes.

MR MARKUS:   In this particular case – and I understand what your Honour is saying – there are two factors which I think are out of the ordinary.  First, your Honour, the decision of the Refugee Review Tribunal, although it has been made some time ago, has never been the subject of any judicial review proceeding.  So it is not the case that this particular applicant has challenged that decision.

Secondly, your Honour, this particular applicant is in detention, so his change of heart I think to some extent has been the result of change of advice received by him.  There has been a change in the people who are assisting him and I think that that is what brought about the difference.  I should perhaps just mention that I have been advised yesterday that Dr Griffiths of senior counsel has taken on to assist this particular plaintiff and that may have made some difference in the approach.

HIS HONOUR:   In this particular case what is being done seems perfectly proper, but as recently as yesterday in dealing with applications on the papers, I read four cases where cases are just being brought through the system, they have been proceeding for years and years.

MR MARKUS:   Yes, your Honour.  I am aware of that happening and there is obviously a difficulty with there being no time limit at all in the Federal Court and the Federal Magistrates Court at this stage in challenging decisions.  Of course, if there are multiple proceedings, then my client needs to take some positive action to seek some orders from the courts declaring the proceedings either vexatious or an abuse of process.

HIS HONOUR:   Whatever the policy concerning bridging visas is a matter entirely for the Minister, but it concerns me in my last few weeks as a member of this Court that the time of this Court and the lower courts is being taken up by proceedings which the lower courts have described as abuses of process.

I will just speak to the plaintiff.  You are the plaintiff in this matter, S244?

PLAINTIFF S244/2005 (through interpreter):   Yes.

HIS HONOUR:   And that is your signature on that document?

PLAINTIFF S244/2005 (through interpreter):   Yes.

HIS HONOUR:   You consent to the making of these orders?

PLAINTIFF S244/2005 (through interpreter):   Yes.

HIS HONOUR:   Very well, I will dispose of this matter.  By consent the parties agree to the following orders:

1.        The proceedings be discontinued.

2.        There be no order as to costs.

The plaintiff has signed a consent order to that effect and so has Mr Markus, the solicitor employed by the Australian Government Solicitor, who is the solicitor for the first and second defendants.  I direct that the consent order be filed and placed among the papers.

AT 10.43 AM THE MATTERS WERE CONCLUDED