CTA15 v Minister for Immigration and Border Protection & Anor

[2016] HCATrans 217

[2016] HCATrans 217

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A27 of 2016

B e t w e e n -

CTA15

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON THURSDAY, 8 SEPTEMBER 2016, AT 9.55 AM

Copyright in the High Court of Australia

CTA15 appeared in person.

MR K. TREDREA:   May it please the Court, I appear for the first defendant, your Honour.  (instructed by Sparke Helmore)

SHANDRA JOSIAH, affirmed as interpreter.

HIS HONOUR:   Thank you.  It is noted that the plaintiff appears in person with the aid of an interpreter who has been affirmed.  Mr Plaintiff, I have had the benefit of reading the documents and the submissions you put in support of your application.  Is there anything that you would like to add to those now?

CTA15 (through interpreter):   There is nothing to add to it.

HIS HONOUR:   Thank you.  You may be seated, both of you. 

THE INTERPRETER:   Thank you.

HIS HONOUR:   Mr Tredrea, there is nothing you have further to say, is there?

MR TREDREA:   No, your Honour, we respectfully rely on our outline.

HIS HONOUR:   Thank you.

This is an application for an order to show cause why an order in the nature of prohibition should not go to prevent the first defendant (“the Minister”) from taking any further step in reliance on a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 August 2015 to affirm a decision of the Minister’s delegate to recommend that the plaintiff’s application for a protection visa be refused.  Orders are also sought in the nature of certiorari to quash the Tribunal’s decision and for the matter to be remitted to the Tribunal for determination according to law.

The plaintiff is a citizen of Sri Lanka of Tamil ethnicity who arrived illegally at Christmas Island on 10 July 2012. On 3 April 2014, the delegate refused the plaintiff’s application for a protection visa. The plaintiff applied to the Tribunal for review of the delegate’s decision but on 10 August 2015 the Tribunal affirmed the delegate’s decision. The Tribunal could find no substantial ground for believing that, as a necessary and foreseeable consequence of the plaintiff being removed from Australia to Sri Lanka, there would be a real risk that he would suffer significant harm in terms of s 36(2A)(a) of the Migration Act 1958 (Cth) and, specifically, that there would be no real risk that he would be arbitrarily deprived of life, that the death penalty would be carried out on him, that he would be subject to torture, that he would be subject to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

On 21 December 2015, the plaintiff filed an application to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision and an application for extension of time.  The application was supported by an affidavit to which was exhibited a document headed “Statement from [the plaintiff]” in which the plaintiff declared that he was “not challenging the decision of the Tribunal as the decision was based on the wrong information given by me.  I am pleading to allow me another chance to present my case”.

On 25 May 2016, Judge Street dismissed the application for extension of time.  His Honour observed that the plaintiff had failed to provide a satisfactory explanation for his delay and that the court had no power to order a second hearing.

On 16 June 2016, the plaintiff instituted this proceeding for an order to show cause.  The application is considerably out of time and the plaintiff therefore requires an extension of time.  It would, however, be futile to grant the extension.  The application for an order to show cause does not identify any arguable basis for the relief which is sought and would have no prospect of success.  The application is therefore dismissed.  Do you seek costs, Mr Tredrea?

MR TREDREA:   We apply for costs, your Honour.

HIS HONOUR:   Thank you.  The application is dismissed with costs.  I will adjourn now.

AT 10.03 AM THE MATTER WAS CONCLUDED