CUU15 & Anor v Federal Circuit Court of Australia & Ors
[2016] HCATrans 292
[2016] HCATrans 292
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S205 of 2016
B e t w e e n -
CUU15
First Plaintiff
CUV15
Second Plaintiff
and
THE FEDERAL CIRCUIT COURT OF AUSTRALIA
First Defendant
MINISTER FOR IMMIGRATION AND BORDER PROTECTION (CTH)
Second Defendant
ADMINISTRATIVE APPEALS TRIBUNAL
Third Defendant
BELL J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON THURSDAY, 24 NOVEMBER 2016, AT 9.30 AM
Copyright in the High Court of Australia
MR A.D. SEARLE: Your Honour, I appear with my junior, MR S.G. LAWRENCE, for the plaintiffs. (instructed by Shelly Legal)
MR D.A. HUGHES: May it please the Court, I appear for the second defendant. (instructed by Clayton Utz Lawyers)
HER HONOUR: Mr Searle, you may assume I have read the papers.
MR SEARLE: Thank you, your Honour. Your Honour, we move on the application for an order to show cause filed on 31 August, and the summons also filed that day, and we rely upon our written submissions filed on 9 October and on 23 November, and we apologise for the lateness of our reply submissions.
HER HONOUR: Not at all. Mr Searle, as I understand it, you accept that the first hurdle that you face is satisfying me of an arguable basis to set aside the determination of the Federal Circuit Court.
MR SEARLE: Correct.
HER HONOUR: The jurisdiction that you ask me to exercise in relation to the extension of time under section 486A raises precisely the issues that were the subject of the Federal Court’s determination.
MR SEARLE: That is correct, your Honour, and it would not be proper for us to ask the Court to exercise its potential power under 486A if you were not persuaded to set aside the decision of the Federal Circuit Court first.
HER HONOUR: What is the basis on which you contend that the Federal Circuit Court misapprehended its jurisdiction or in some respect committed jurisdictional error?
MR SEARLE: There are a number of respects, but primarily it did not recognise the jurisdictional errors made by the Tribunal, and there was a matter that is not dealt with in our written submissions but I was going to briefly take your Honour to by way of opening which illustrates the points that we wish to make about that. Your Honour, one thing I have not done is to read the affidavit of my instructing solicitor, Lydia Shelly, and tender the annexures thereto.
HER HONOUR: Yes, very well. Is there any objection to that material, Mr Hughes?
MR HUGHES: There is no objection, your Honour.
HER HONOUR: Yes, very well. You may take it that I have read the decision of the Tribunal, the decision of the Federal Circuit Court, the affidavit of the first plaintiff, the affidavit of the second plaintiff – both of those, as I understand it, were before his Honour in the Federal Circuit Court proceedings.
MR SEARLE: That is correct.
HER HONOUR: His Honour took the view – I suggest understandably – that material contained in the affidavit of the second plaintiff that had not been before the Tribunal might not be relied upon to establish that the Tribunal erred in the exercise of its jurisdiction.
MR SEARLE: Yes, and that is dealt with I think at paragraph 44 of his Honour’s judgment.
HER HONOUR: That may be, but ‑ ‑ ‑
MR SEARLE: Well, your Honour, that seems like a good place to start. I am not going to laboriously read out – because your Honour has read it – the affidavit of the second plaintiff, but on a fair reading of his evidence, which was not challenged below, it is quite clear that he was not in any way involved in the preparation of his matter, he was not given notice of the hearing, he was not aware of certain things happening. He was not even aware of the time limitations until a point in time when an application was already on foot in the Federal Circuit Court.
HER HONOUR: Mr Searle, you say he was not notified of the hearing or aware of other developments in relation to it. As I understand it, you accept that as a matter of law it must be presumed he was made aware of the invitation to attend the hearing, the invitations to attend the resumed hearings issued on two occasions, and each of the 424A notices ‑ ‑ ‑
MR SEARLE: Your Honour, we accept that as a matter of law the operation of the Act means that he was served with those things, but we say that service alone is not enough to discharge the natural justice obligations, and a good illustration of that, your Honour, is in relation to the first plaintiff. When the Tribunal was attempting to reschedule the hearing – which had to be adjourned due to her distress – and it is dealt with in our aide‑mémoire just for ease of reference – there was two attempts that the Tribunal made to contact the first plaintiff through the agent, and what is clear in the two telephone contacts was about whether or not she was going to give further evidence, but the inquiry was made in relation to the first plaintiff only. No query is contained in those two phone records about whether or not the second plaintiff wished to give evidence.
HER HONOUR: Mr Searle, at the first hearing – prior to the first hearing, Mr Issa, the authorised representative nominated by the first plaintiff, submitted the response to hearing form and that indicated that the second plaintiff would attend the hearing.
MR SEARLE: Correct.
HER HONOUR: At the hearing the Tribunal inquired about the fact that the second plaintiff was not present ‑ ‑ ‑
MR SEARLE: Correct.
HER HONOUR: ‑ ‑ ‑ and was told that the second plaintiff had the flu. The Tribunal queried that the second plaintiff was not advancing his own claims for protection but, consistently with the form signed on his behalf by his mother, was claiming a protection visa as a member of her family unit.
MR SEARLE: Well, in relation to the exchange, I think the exchange is very important because Mr Issa says “He has no claims, he has no claims”, as you say.
HER HONOUR: Yes.
MR SEARLE: So he disavows the fact that the second plaintiff has an independent claim, which was on the face of the material not correct, and at paragraph 75 the Tribunal accepts that that was not correct because it then without hearing from the second plaintiff purports to deal with that independent ‑ ‑ ‑
HER HONOUR: Mr Searle, the Tribunal had before it a claim – the various claims for protection made by the first plaintiff and the claim as a member of her family unit of the second plaintiff.
MR SEARLE: Yes.
HER HONOUR: The Tribunal was informed, consistently with the form of the applications, by Mr Issa that no individual claim was being made by the second plaintiff. Am I right in that understanding?
MR SEARLE: That is what the paperwork discloses, yes.
HER HONOUR: And it is what Mr Issa informed the Tribunal in response to the question that the Tribunal asked him.
MR SEARLE: Correct.
HER HONOUR: Now, Mr Searle, as I apprehend the focus that was sought to be advanced before the Federal Circuit Court and is now sought to be reagitated in these proceedings before me, it is that notwithstanding the nature of the application that was before the Tribunal, the circumstance that both plaintiffs were represented by Mr Issa in the proceedings before the Tribunal, that after the first hearing which the second plaintiff did not attend and the reason given for that was said to be that he had the flu, at the resumed hearing, or before it, Mr Issa submitted a response form indicating that the second plaintiff would not be attending but that the first plaintiff would.
MR SEARLE: Correct, and in relation to the third potential hearing the response to invitation indicates that the first plaintiff will attend but there is no response either way.
HER HONOUR: No response. Now, Mr Searle, just coming back to basics for a moment; at all material times the second plaintiff was under a legal disability and in the care and legal custody of the first plaintiff.
MR SEARLE: That is so.
HER HONOUR: The first plaintiff engaged Mr Issa to act on her behalf and on behalf of the second plaintiff in the proceedings before the Tribunal.
MR SEARLE: That is the case, she did engage Mr Issa. I understand where your Honour is going. Essentially ‑ and I think this is the Minister’s argument – the second plaintiff’s case was run, for good or ill, on his behalf by his mother through Mr Issa and essentially whether he was heard or not, that is pretty tough, but that is how it goes because he was represented by Mr Issa.
What we would seek to persuade this Court, as we were unsuccessful in persuading the court below, is that the mere fact that somebody was represented does not lighten the burden of the Tribunal to make sure that natural justice is accorded to each applicant, that each applicant has to be given a meaningful opportunity to be heard in the circumstances of the case. And the circumstances of this case – and I can come to this very shortly, your Honour – there were signs that were clear to the Tribunal that ought to have put the Tribunal on notice that Mr Issa was not advancing that case for the second plaintiff.
Now, your Honour, if I could just take two moments to just briefly get into that subject area. As I indicated, the affidavit of the second plaintiff sets out what we say is a very understandable and cogent reason for the delay in seeking the relief of the Federal Circuit Court and, indeed, this Court.
HER HONOUR: Well, he says he did not know ‑ ‑ ‑
MR SEARLE: He says he did not know, he was not involved in the matter, he was not told of certain things ‑ ‑ ‑
HER HONOUR: He was a child.
MR SEARLE: He was a child, but he was 16 years old. It is not like he was an infant, your Honour, and it is not like he was not able to come and give evidence, and that is an important distinction ‑ ‑ ‑
HER HONOUR: Accepting that, Mr Searle, he was under a legal disability. He was legally represented. It is ‑ ‑ ‑
MR SEARLE: I understand where your Honour is going, if I can just take two moments to try and persuade your Honour.
HER HONOUR: Yes, all right, take me to the ‑ ‑ ‑
MR SEARLE: His material – and I understand what his Honour says at paragraph 44 about the affidavit before the court was not before the Tribunal and cannot make out jurisdictional error. Your Honour would be aware of the decision of the Full Federal Court in SCAR. I have got a copy here for your Honour. I have got a copy for my friend. Essentially, SCAR is authority for the proposition that there can be a jurisdictional error even if the Tribunal itself has not done anything wrong, that is, if through misadventure or ill‑health or what have you a person is not in a position to put their case.
So, for example, at paragraph 37, “circumstances where an invitation was given but the applicant was unable to attend because of ill health”. There is a further example given on the following page where an applicant was invited to attend and did attend but did not have an interpreter. Also at paragraph 39 the Tribunal Member was not informed of a fax that had gone in saying a person could not make it and they went and determined the matter in the absence of the applicant. That was ‑ ‑ ‑
HER HONOUR: That is Bhardwaj, is it not?
MR SEARLE: It is, but that was a matter where the Tribunal was not aware of the matter ‑ ‑ ‑
HER HONOUR: Yes.
MR SEARLE: ‑ ‑ ‑ but, nevertheless, there was a jurisdictional error and the same was found at paragraph 41 in this case; that is, even though there was no fault on the part of the Tribunal, in the circumstances there was misadventure and, therefore, there was a jurisdictional error. So you do not have to show necessarily that the Tribunal did anything wrong but we will seek to persuade you shortly that in fact something did go awry and that you would be satisfied that there was not a meaningful invitation given.
In the second plaintiff’s affidavit he sets out the reasons why he was not there. He indicates very clearly that he was not involved or engaged at any stage in the preparation or advancement of his matter and also that he was not aware of any time limitations. So, for example, if you look at his final paragraph, at the time he was told about the time limitation, at that point there was already an application on before the Federal Circuit Court.
Now, I will take your Honour briefly – we have prepared an aide‑mémoire which is just a list of documents and where they can be found, and I am not going to laboriously read them but I will indicate what their significance is in an effort to – as quickly as I may – persuade your Honour.
Now, the first matter is both the court below and the Tribunal proceeded on this notion that the second plaintiff had no claims of his own and did not wish to attend, and this is I think dealt with first of all at paragraph 16 of his Honour’s decision:
The proposition that the second applicant did not want to give evidence was an inference open from both what was said by the applicant and what was said by the migration agent as well as being open as an inference from the forms completed by the migration agent ‑
Now, of course, in the exchange that took place in the Tribunal Mr Issa says, “He has no claims, he has no claims”, as you say. The query about why the second plaintiff was not there, the mother said he has got the flu, and it is a bit hard to read but you also get the inference that she was not aware that he could be there, she was not sure that she could bring him. But, in any case ‑ ‑ ‑
HER HONOUR: Mr Searle, I do not know that ‑ ‑ ‑
MR SEARLE: Well, I am just going on what she said. The point is there ‑ ‑ ‑
HER HONOUR: Mr Searle, at the present we are looking at the error that would taint the decision of the Federal Circuit Court. That is the matter that you are addressing.
MR SEARLE: Yes, indeed.
HER HONOUR: You are inviting me to draw inferences myself I do not think really advances that.
MR SEARLE: Well, I accept the Federal Circuit Court relied heavily on that in making his own finding that the applicant did not want to come and give evidence, and there was simply, we say, no reasonable basis for forming that conclusion, because Mr Issa never said in the open Tribunal, he does not want to come and give evidence. He said, “He has no claims”, but he never – at no point in the documents or elsewhere was it ever affirmatively advanced that the second plaintiff did not want to come and give evidence.
HER HONOUR: Mr Searle, in the response to the invitation to attend the resumed hearing the second plaintiff was indicated as an applicant who would not be attending the hearing.
MR SEARLE: I accept that, but no reason is given for why he was not going to attend.
HER HONOUR: Indeed.
MR SEARLE: For all we know, he could well have been sick still on that occasion; we just simply do not know. What the Tribunal has done is engage in impermissible speculation without a factual foundation in making an affirmative finding he did not want to come, particularly when you then look at the third resumed hearing notice, which is at court book page 194, which is the one where there is no tick either way.
HER HONOUR: Well, there is no ‑ ‑ ‑
MR SEARLE: So, given that that was the last indicator before the Tribunal, for the Tribunal then to form a view that the second plaintiff actively did not want to come was not, we say, reasonably open to it. I will come to the next part of the aide‑mémoire, which is the list of communications between the Tribunal and the agent. This is the correspondence from the Tribunal which we accept was directed to the agent for both applicants. But we say what is telling is when you look at the correspondence from the agent back to the Tribunal, the agent never claims to be representing the second plaintiff.
HER HONOUR: Mr Searle ‑ ‑ ‑
MR SEARLE: The correspondence is written only on behalf of the first plaintiff, and that, we say ‑ ‑ ‑
HER HONOUR: Mr Searle, the Tribunal was dealing with a matter in which the underlying applications included one described, I think, as a form B – it is at court book 28 – identifying both plaintiffs as included in the application, and I think it is this application, is it, that nominates – that identifies Mr Issa as the person to whom contact is to be made, or with whom contact is to be made. And then there is a further form at court book 40 which nominates Mr Issa as the authorised representative in relation to the application.
MR SEARLE: Yes, that is what those documents say, but, again ‑ ‑ ‑
HER HONOUR: Now, Mr Searle, you submit it was not open to the Federal Circuit Court to conclude there was not an arguable case of jurisdictional error by the Tribunal in the Tribunal’s conclusion that the second applicant had been afforded an opportunity and had not sought to take it up to himself to give evidence ‑ ‑ ‑
MR SEARLE: Yes.
HER HONOUR: ‑ ‑ ‑ in circumstances in which he was represented by Mr Issa before the Tribunal he indicated, in relation to the resumed intention, that he did not intend to appear, made no indication in relation to yet a further invitation for him to appear. For my own part, I have difficulty understanding why anything about Mr Issa’s communications might support an inference that Mr Issa was not acting on behalf of not only the first applicant but her child.
MR SEARLE: Well, your Honour, we say it arises in two ways. First of all, the exchange that occurred before the Tribunal is set out at paragraph 10 of his Honour’s judgment ‑ Mr Issa says, “He has no claims, he has no claims”. Now, we know that is wrong because he had an independent claim not dependent on his mother, it is set out in her affidavit, and it is dealt with, or purported to be dealt with, at paragraph 75 of the Tribunal’s decision.
So, from the very start Mr Issa either is not in a position or is not advancing a case for the second plaintiff, irrespective of the paperwork. Again, when you go back to the correspondence from Mr Issa, back to the Tribunal, he never claims himself that he is representing the second plaintiff.
Now, given that the Tribunal is writing to him as representative of both parties, or both claimants, and he is only writing back representing one, we say that ‑ ‑ ‑
HER HONOUR: Where is there a letter from Mr Issa suggesting that he is acting only in relation to the first plaintiff? I mean, Mr Searle ‑ ‑ ‑
MR SEARLE: If you look at the aide‑mémoire – and we can go through each of the ‑ ‑ ‑
HER HONOUR: Well, we are not going to go through each; you take me to your best point, Mr Searle, by which I refer to the fact that the aide‑mémoire appears to refer to a very large number of documents and I again direct your attention to the need to identify error that might lead to quashing the decision of the Federal Circuit Court.
MR SEARLE: The first error, your Honour ‑ and I started with this ‑ is at paragraph 44 where he says, the evidence of the second plaintiff that was before his Honour cannot make out jurisdictional error. We say that not only does the affidavit of the second plaintiff give a very clear and cogent reason for the delay, he also sets out essentially the misadventure by which he did not give evidence. When you look at SCAR, we say that that should satisfy your Honour that even though that was not before the Tribunal and not within the Tribunal’s knowledge, nevertheless it does show in this situation he was not given a meaningful opportunity to be heard.
HER HONOUR: Can we just break that submission up into its constituent parts? To the extent that there was reference to the circumstances of delay, that has nothing to do with the Tribunal’s determination but relates to the exercise of the 477(2) discretion – so we put that to one side, Mr Searle.
MR SEARLE: Correct.
HER HONOUR: Then you refer to what you describe as the misadventure that led the juvenile applicant claiming under his mother to not appearing before the Tribunal and that might be shortly described as an account “I left these things to mum, and I did not know anything about what was happening”. Is that right? That is the misadventure, is it?
MR SEARLE: Well, yes, your Honour, he was not engaged by either his mother or Mr Issa in the preparation of the matter. Now, again, your Honour, when you look at the legislation – we accept he was a juvenile, but when you look at the legislation, it nowhere says that a claimant should be given a different level of consideration, an inferior level of consideration, simply because they are a juvenile.
HER HONOUR: Mr Searle, there is no suggestion of that. What there is as an issue for you I think to confront is that a person under a legal disability, such as the second plaintiff, had decisions made on his behalf by the person who had his legal custody, and that person in the events that are disclosed retained a solicitor and migration agent to act on her behalf and the behalf of her juvenile son.
MR SEARLE: Yes, that is true.
HER HONOUR: So that to baldly assert that he did not have an opportunity to appear before the Tribunal – and given the background that you accept – seems to me to be a difficult argument to make.
MR SEARLE: Well, except, your Honour, apart from the claim that he shared with his mother – that is, they both had the same claim – he also had an independent claim which was touched on in her affidavit, and the Tribunal attempts to grapple with it at paragraph 75 of its decision, which is that he was potentially at risk of joining, forcibly, a militia. Now, that is his independent claim, it is not dependent on his mother.
HER HONOUR: Mr Searle, you say it is his independent claim. In fact, he did not make that claim. His mother raised it as a concern that she and her husband had and the Tribunal looked at that matter and concluded that, in the circumstances, there was no reason to consider that the second plaintiff would in fact go off and join a militia, nor that he would be pressured or made to do so.
MR SEARLE: I understand that, your Honour, but that decision was reached without the second plaintiff we say having the meaningful opportunity to be heard on that point. Your Honour invited me to take you to – I think you put it as my best point, but it was in terms of the correspondence between the Tribunal and Mr Issa.
HER HONOUR: Yes, all right.
MR SEARLE: Now, it all does fall into – there are a lot of documents but essentially they fall into the same category. If you look at court book page 168, which is page 201 of the affidavit, it is a response from the firm of solicitors that Mr Issa was the proprietor of to the Tribunal.
HER HONOUR: Yes.
MR SEARLE: It simply says, “Re” – and I will not read the name, but it is ‑ ‑ ‑
HER HONOUR: This is at court book 168?
MR SEARLE: Yes, court book 168, your Honour.
HER HONOUR: Are you referring to the letter from Firmstone and Associates of 16 July 2014?
MR SEARLE: Correct.
HER HONOUR: Which says, “We refer to above matter and enclose [a] completed Response to Hearing . . . form”.
MR SEARLE: Correct.
HER HONOUR: And it is described as being – with respect to the subject matter of the first ‑ ‑ ‑
MR SEARLE: The first plaintiff only. It does not say the two plaintiffs, your Honour.
HER HONOUR: Mr Searle.
MR SEARLE: Well, except, your Honour, there is a pattern of these.
HER HONOUR: Mr Searle, can we then look at the document that is attached to that letter. The document contains a response to hearing invitation, indicating that both the first and the second plaintiffs will be attending the hearing.
MR SEARLE: I understand that, your Honour, and that is why it is there, but it is the – I will take you to the second one, it is page 170. Your Honour, there is a lot of these documents but they are all to the same effect. It shows you a pattern whereby the agent is only in fact representing one of the two parties.
HER HONOUR: Yes, all right. Well, I understand the submission, Mr Searle. I do not think it is going to be usefully advanced by taking me to every letter.
MR SEARLE: No, and I do not – and that is why I have provided it in an aide‑mémoire. We simply say the Tribunal, based on the paperwork that had been filed, wrote to Mr Issa as if he did represent both, but when you look at the pattern of dealing, the way in which he responded, he is only in fact representing one of the two parties. The Tribunal was, or ought to have been, on notice that there was at least an issue with that representation. It was not entitled to simply rely entirely on the fact that the paperwork had been filled in. So, for example, if you look at in relation to the first plaintiff, if you look at paragraph 70 and 71 of the Tribunal’s decision, it is clearly alive to the fact that the first plaintiff was, or may have been, a vulnerable person, and you can see there that there is consideration given of that matter, including reference ‑ ‑ ‑
HER HONOUR: I am sorry, what page number?
MR SEARLE: It was the decision of the Tribunal, it is court book page 238. You have got paragraph 70 and 71 where the Tribunal is there properly touching on whether or not the first plaintiff was a vulnerable – potentially a vulnerable person, and looking at the material that has been advanced before it and, in particular, looking at the Guidance on Vulnerable Persons. What we see there is that ‑ quite properly, as a result presumably of those considerations, we can see – and this is dealt with also in the aide‑mémoire – there are two attempts to get in touch with the first plaintiff to see whether or not she is going to give evidence.
What you can see there is the Tribunal is not relying on any form, is not relying on mere correspondence only to Mr Issa, it is going that extra step, conscious of the fact that she was or may have been a potentially vulnerable person or witness, so it takes that extra step, quite properly. But it does not do that in relation to the second plaintiff, even though you have got from the very beginning Mr Issa disavowing that the second plaintiff has any claim, which the Tribunal knows to be wrong, and then you look at the pattern of the correspondence where Mr Issa does not claim to be representing the second plaintiff.
And then that – and we say this is very telling – when the Tribunal goes that extra step for the first plaintiff to see whether she wishes to come and give evidence, no inquiry is made in relation to the second plaintiff. And there you see the Tribunal giving the second plaintiff different and less consideration even though, as your Honour has correctly identified, as a minor, even though a minor in the custody of a parent, he also is at least potentially a vulnerable person needing that extra consideration.
So the rules of natural justice in this case, given what the Tribunal did know, really called for the Tribunal to take an extra step to make sure that that invitation to a hearing was not a hollow shell or an empty gesture, that it was a meaningful opportunity, which we know from the second plaintiff’s evidence below was simply not available to him.
And, your Honour, this is a different case. The second plaintiff was not six or seven, and was not an infant, was a person who was able, potentially, to engage and give evidence and provide material on his own behalf, and we see through misadventure that he was not given that opportunity. The Tribunal, we say, was or ought to have been on notice that at least there was some issue with that representation by the agent in connection with the second plaintiff, notwithstanding the paperwork that had been filed.
And particularly when the Tribunal was aware that the first plaintiff was or may have been vulnerable and had health issues, that was another potential indicator for the Tribunal that perhaps when it made the telephone inquiries in relation to the first plaintiff, maybe it should have done the same for the second plaintiff also.
So we can see that the second plaintiff was treated differently and less favourably than the first plaintiff by the Tribunal and was, we say, in the circumstances, not afforded a fair opportunity to be heard on his claims. And the reality is, your Honour, in this matter, the second plaintiff has claims to engage Australia’s international legal obligations and he has never had a hearing on the merits of his case.
HER HONOUR: Mr Searle, the second plaintiff did not make a claim to engage Australia’s protection obligations other than as a member of the family unit of his mother. His mother’s claim that touched on him was a claim that she feared he – that is, the son – would be vulnerable to recruitment from an armed militant group or that he might be pressured by such a group.
MR SEARLE: Yes.
HER HONOUR: They are two quite distinct matters. The first, a concern that a young man if returned to Lebanon might be vulnerable to the blandishments of militants is one concern ‑ ‑ ‑
MR SEARLE: But that is still being at risk, whether it is voluntary or not.
HER HONOUR: Undoubtedly, and understandably a matter that the mother referred to in her application. The point, Mr Searle, that your submissions seem to not come to grips with is that the Tribunal did not have before it claims independently made by the second plaintiff, and that one might think would bear on the Tribunal’s consideration of the inferences which you say it should have drawn from the form of the correspondence and the like.
MR SEARLE: Well, the whole pattern of events before it. But, your Honour, in an effort to come to grips with what your Honour is putting, we accept that those matters were not before the Tribunal because of the circumstances which led the second plaintiff to not having a meaningful opportunity to put his case. We accept that he came before the Tribunal because his mother made the application, but there is no warrant to distinguish between different claimants simply because of the forms or who signed them, they were both claimants, and the obligation on the Tribunal under 425 was the same for each, and we say because of the circumstances the second plaintiff did not have a meaningful opportunity.
HER HONOUR: I think I understand the submission.
MR SEARLE: I understand, your Honour. And as SCAR indicates, it does not have to be the fault of the Tribunal if due to circumstances ‑ ‑ ‑
HER HONOUR: I think you have made that point, Mr Searle. Now, in essence, your contention is that the Federal Circuit Court erred in that it misapprehended the nature of its discretion because it failed to assess the strength of the grounds of challenge to the Tribunal’s determination. Is that ‑ ‑ ‑
MR SEARLE: Well, your Honour, I think the way I would prefer to put it is that, like the Tribunal, his Honour formed the view that the second plaintiff did not wish to give evidence, and that is replete throughout his judgment, paragraph 16, 20, 40, 52. He forms the active view – we say wrongly – and that causes everything to miscarry, both at the Tribunal level and also at the level of the Federal Circuit Court because misunderstanding that point was absolutely fundamental to everything else. The fact is this was a claimant who was simply never heard and there was – the Tribunal did not give him a meaningful opportunity to be heard, and given the matters that were before the Federal Circuit Court his Honour’s discretion in terms of extending time miscarried because he did not understand – particularly having had the benefit of the evidence of the second plaintiff, he was not conscious of the fact that those were matters that even without any fault on the part of the Tribunal that there could be a want of natural justice having been accorded by the Tribunal, and we say his Honour’s failure to appreciate that point was itself a jurisdictional error by the Federal Circuit Court
HER HONOUR: That is the jurisdictional error you rely on, that his Honour failed to appreciate that the Tribunal – that there was an arguable case that the Tribunal denied natural justice to the second plaintiff.
MR SEARLE: Yes, there was at least one arguable case. We say there was more, of course, but your Honour would see there was at least an arguable case that there was a want of natural justice before the Tribunal and his Honour did not appreciate that.
HER HONOUR: I am just trying to understand how this – his Honour found that Mr Issa had represented the second plaintiff ‑ ‑ ‑
MR SEARLE: Well, we took issue with that, and we still take issue with that, your Honour, because we say the paperwork is one thing – and we do not cavil with the legality of the service – but mere service does not discharge the natural justice obligations of the Tribunal, and we can see because the Tribunal took extra steps in relation to the first plaintiff did not rely on mere correspondence to Mr Issa but it did do so in relation to the second plaintiff and it treated the second plaintiff differently and less favourably.
HER HONOUR: All right. Well, now, is there anything further you want to put?
MR SEARLE: Your Honour, the last point I will make is this notion that the second plaintiff was under a legal disability. We accept he was a minor and we accept that he was under the custody of his mother, but there is no warrant in the legislation for however he came before the Tribunal for him to have a differential and less favourable treatment. The fact that he is a minor does not detract from the fact that on the evidence that was before the Federal Circuit Court he was in a position to engage and provide information for the purposes of hearing and he was not given that opportunity. It is not, for example, like an infant ‑ ‑ ‑
HER HONOUR: Mr Searle, rather than putting that colour, as it were, on the position, the significance of being a minor is that his interests were being represented by the person who had the legal authority to make the decisions on his behalf.
MR SEARLE: I understand that, your Honour, but the legislation does not distinguish between ‑ ‑ ‑
HER HONOUR: All right. Well, you have made ‑ ‑ ‑
MR SEARLE: ‑ ‑ ‑ but that is why the natural justice requirements are not fixed or inflexible, they have to adjust to the circumstances of the case, and notwithstanding the fact that he was a minor and that he was in the care of his mother, the chain of events is quite clear, that his case was not advanced and was not heard ‑ ‑ ‑
HER HONOUR: Mr Searle, I think I have heard you on that. Is there anything further you wish to put?
MR SEARLE: No, you have got our written submissions, your Honour.
HER HONOUR: Thank you. Mr Hughes, I take it you are rely on your written submissions?
MR HUGHES: I do, your Honour.
HER HONOUR: Is there anything further you wish to put?
MR HUGHES: Only if your Honour has questions.
HER HONOUR: No, Mr Hughes.
MR HUGHES: May it please the Court.
HER HONOUR: This is an application for an order to show cause filed on 31 August 2016. The plaintiffs claim an order extending time in which to claim relief in relation to the decision of the Refugee Review Tribunal made on 29 October 2014, affirming a decision to refuse to grant them protection visas. The underlying relief claimed is certiorari to quash the Tribunal’s decision and mandamus directed to the Administrative Appeals Tribunal, the successor to the Tribunal, to determine the plaintiffs’ applications according to law.
The Tribunal’s decision is a migration decision within the meaning of the Migration Act 1958 (Cth). Section 486A(1) of the Act requires that such an application be made “within 35 days of the date of the migration decision”. Section 486A(2) confers power on the Court to extend that period if it “is satisfied that it is necessary in the interests of the administration of justice to make the order”.
The plaintiffs commenced proceedings in the Federal Circuit Court seeking judicial review of the Tribunal’s decision. The Federal Circuit Court’s original jurisdiction in relation to migration decisions is the same as is conferred on this Court under s 75(v) of the Constitution. An application for a remedy in the Federal Circuit Court’s original jurisdiction in relation to a migration decision must be made within 35 days of the date of the migration decision. Under s 477(2) the Federal Circuit Court has power to extend time if it “is satisfied that it is necessary in the interests of the administration of justice” to do so. On 28 July 2016, the Federal Circuit Court refused to make an order extending time and dismissed the application.[1] In the alternative to the relief claimed in order 1, the plaintiffs claim certiorari to quash the decision of the Federal Circuit Court of 28 July 2016.
[1] CUU15 & Anor v Minister for Immigration & Anor [2016] FCCA 1886.
The plaintiffs are citizens of Lebanon. The first plaintiff is the mother of the second plaintiff. They arrived in Australia on 26 March 2013 on a Sponsored Family Visitor visa. On 16 June 2013, they applied for protection visas. The first plaintiff made substantive claims to engage Australia’s protection obligations. The second plaintiff, who was then a child aged 15 years, applied as a member of the first plaintiff’s family unit using a form D, the form that is for use by an applicant who is a member of the family unit of an applicant for a protection visa, being an applicant who does not make his or her own claims for protection.
The latter application was signed on the second plaintiff’s behalf by the first plaintiff, as the person having his care and legal custody. In her application the first plaintiff stated that she and her husband feared for the safety of the second plaintiff because radicals might influence him in the event they were returned to Lebanon or he may be forced to join militants in Syria or to fight in Tripoli.
On 20 February 2014, a delegate of the Minister refused the applications. On 3 March 2014, under cover of a letter signed by Mr Issa, a solicitor and migration agent, an application for review of the decision was submitted to the Tribunal. Both plaintiffs were identified as applicants for review. Mr Issa was nominated as the applicant’s representative and authorised recipient with respect to the receipt of documents and correspondence from the Tribunal. The review application was signed by the first plaintiff immediately below her undertaking to inform each other applicant for review of the contents of any communication from the Tribunal.
At the date of the submission of the application, the second plaintiff remained a child under the first plaintiff’s care and custody. There should be reference to the provisions of the Act governing the receipt of documents from the Tribunal in light of the plaintiffs’ contention that the second plaintiff was not given a meaningful opportunity to appear before the Tribunal and give evidence and make submissions.
Under s 441G(1), the Tribunal was obliged to give documents to Mr Issa as the plaintiffs’ representative. Under s 441G(2), any document given to Mr Issa is taken as having been given to the plaintiffs. There is no suggestion that Mr Issa’s authorisation was withdrawn at any time. Under s 441EA, any document provided to the first plaintiff is to be taken to have been provided to the second plaintiff because they applied together. Under s 441A(6), the Tribunal is taken to have given a document to the second plaintiff by giving it to his mother.
The Tribunal invited the plaintiffs to attend a hearing and the first plaintiff attended the hearing and was represented by Mr Issa. The second plaintiff was not in attendance, although the response to the invitation to attend the hearing which was submitted to the Tribunal under cover of a letter from Mr Issa stated that the second plaintiff would be attending the hearing.
The Tribunal raised with the first plaintiff the fact that the second plaintiff was not present. The first plaintiff stated that he had the flu. The Tribunal noted that the second plaintiff had not made any substantive protection claims and invited Mr Issa’s comment. Mr Issa responded, “[H]e has no claims, he has no claims like you say”.
After a hearing occupying nearly two hours, the review was adjourned at the request of the first plaintiff. A resumed hearing was scheduled for 3 September 2014. The response form submitted to the Tribunal under cover of a letter from Mr Issa indicated that the first plaintiff would attend the resumed hearing and that the second plaintiff would not attend. On 3 September 2014, Mr Issa wrote to the Tribunal stating that the first plaintiff was receiving treatment in hospital following an attempt at self‑harm.
The Tribunal rescheduled the resumed hearing to 17 September 2014. On that day, Mr Issa wrote to the Tribunal stating that the first plaintiff was still not well enough to appear. He referred to a psychologist’s report indicating that the first plaintiff had a number of ongoing mental health issues which may impede her ability to give coherent oral evidence before the Tribunal. Mr Issa requested consideration of a further period to enable the first plaintiff to respond to adverse information contained in the Tribunal’s letter of 9 September 2014. Mr Issa proposed proceeding by way of written questions and responses.
It appears that the Tribunal contacted Mr Issa for clarification and that he confirmed that the first plaintiff was not seeking a further date for hearing because she did not feel that she would be able to attend. The Tribunal furnished the plaintiffs with a written invitation to comment on or respond to information set out in a letter dated 17 September 2014.
On 2 October 2014, Mr Issa wrote to the Tribunal advising that the first plaintiff was incapacitated and requesting the Tribunal to proceed to making a decision on the evidence and submissions provided. On 29 October 2014, the Tribunal affirmed the delegate’s decision.
None of the grounds for review in this Court challenge the Tribunal’s disposition of the first plaintiff’s claims. It is sufficient to note that they were rejected on credibility grounds. The Tribunal also considered the possibility that the first plaintiff had made a claim on behalf of the second plaintiff arising out of her concern that he would be vulnerable to recruitment from a militant group were he to return to Lebanon or that he might be pressured to join such a group.
The Tribunal concluded that while available information indicated it was possible for the second plaintiff to join an armed militant group in Lebanon, the evidence was that he did not wish to do so and there was no independent information to indicate that young able‑bodied men in the north of Lebanon are being forced or pressured or made to join armed militant groups. The Tribunal did not accept that there is a real chance that the second plaintiff would join or would be forced or pressured to join an armed militant group in the event that he were to return to Lebanon now or in the reasonably foreseeable future.
The Minister submits that the application to extend time raises consideration of the same matters as were the subject of the application before the Federal Circuit Court. He submits that the grounds of challenge to the decision of the Federal Circuit Court do not raise an arguable case of jurisdictional error or, indeed, of non‑jurisdictional error. Moreover, he submits that the grounds which seek to challenge the Tribunal’s decision are misconceived and do not disclose an arguable basis of jurisdictional error. In the result, the Minister submits that the application should be dismissed with costs.
The plaintiffs contend that the application raises important questions concerning the Tribunal’s obligation in conducting a review when one of the applicants is a child who is not involved in the hearing process “in any meaningful way”. They accept it is necessary for them to succeed in demonstrating that there is an arguable case for quashing the decision of the Full Federal Circuit Court before this Court would embark on consideration of extending time under 486A(2) of the Act.
The focus of the challenge to the Federal Circuit Court’s decision is on the second plaintiff’s case. An affidavit sworn by the second plaintiff was in evidence in those proceedings. In that affidavit he stated that he did not know of the time limit and that he had first become aware that “we were over a year late in filing an appeal” in May 2016 when he and his mother met with a barrister, Jay Williams. More generally, the second plaintiff states that:
“The first time I remember being told that our application for a protection visa was having problems was one day when my mother told me she had been to a hearing about our case. I cannot recall the exact words she used but she said words to the effect of ‘I did very badly at court, it did not go well, I said some wrong things’. My mother also said words to the effect of ‘[i]t will be hard but we will fight for it’. I recall that during the conversation my mother said that she had attended the hearing some time before our conversation but I am not sure how long.”
The second plaintiff stated that:
“I left the issues with our visa application to my mother. I was trusting her with it and I also believe that she did not want to involve me in it.”
The plaintiffs contend that the primary judge misapprehended the nature of his discretion under s 477(2) of the Act because he failed to take into account in light of the contents of the second plaintiff’s affidavit that the second plaintiff had been denied natural justice in that he had not been given a meaningful opportunity to present evidence and submissions to the Tribunal.
It is accepted that the second plaintiff is presumed to have been served with invitations to attend the hearing and the resumed hearing and with the notices under s 424A of the Act. It is the plaintiffs’ submission that the primary judge’s error lay in treating the requirements of procedural fairness in the case of the second plaintiff as satisfied in circumstances in which the evidence did not support a conclusion that Mr Issa was acting on the second plaintiff’s behalf in the conduct before the Tribunal.
The Federal Circuit Court’s conclusion that Mr Issa had authority to act on the second plaintiff’s behalf was well open. The Federal Circuit Court took into account the length of delay, the absence of satisfactory explanation for the delay and the assessment that the proposed challenge to the Tribunal’s decision was without reasonable prospects of success in concluding that it was not necessary in the interests of justice to extend time.
Nothing advanced today suggests that the judge misapprehended the nature of his discretion or that his decision was subject to jurisdictional error or other error. Moreover, the grounds on which the plaintiffs seek to impugn the Tribunal’s decision, as the Minister submits, do not disclose an arguable basis for the relief. In short, they are that the Tribunal failed to take into account the second plaintiff’s vulnerable status as a child by reference to the Vulnerable Person’s Guidelines, misapprehended the reason for the second plaintiff’s non‑appearance before the Tribunal, wrongly accepting that he made no protection claims of his own, did not afford him a meaningful opportunity to appear and give evidence and to present arguments and that it failed to comply with s 424A of the Act.
In circumstances in which the second plaintiff’s claims were as a member of the family unit of the first plaintiff, the Tribunal’s asserted failure to consider the Vulnerable Person’s Guidelines insofar as they concern the assessment of child applicants does not give rise to an arguable ground of jurisdictional error. As noted, it is accepted that the Tribunal is taken to have invited the second plaintiff to attend the hearing and give evidence. The response to the invitation to attend the resumed hearing informed the Tribunal that the second plaintiff would not be attending.
The plaintiffs’ proposed grounds of challenge do not address the circumstance that, at the time of the Tribunal’s determination and thereafter when the decision was made to seek ministerial intervention as distinct from commencing proceedings by way of judicial review, the second plaintiff was under a legal disability ‑ he not having attained the age of majority ‑ he was in the legal custody of the first plaintiff who had retained Mr Issa to act on her and his behalf in the conduct of the proceedings, and thereafter in relation to the application for ministerial intervention.
The application does not disclose any basis on which it would be in the interests of the administration of justice to permit the plaintiffs to relitigate their claims for an extension of time in which to challenge the decision of the Tribunal. For these reasons, the application is dismissed with costs. The Court will adjourn.
AT 10.32 AM THE MATTER WAS CONCLUDED
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