CYN17 v Minister for Home Affairs & Anor

[2019] HCATrans 121

[2019] HCATrans 121

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S25 of 2019

B e t w e e n -

CYN17

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

IMMIGRATION ASSESSMENT AUTHORITY

Second Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 JUNE 2019, AT 9.32 AM

Copyright in the High Court of Australia

HIS HONOUR:   On 21 January 2019, the applicant filed an application for a constitutional or other writ.  For the reasons that I now publish I dismiss the application.

The orders are:

1.The application is dismissed under r 25.09.1 of the High Court Rules 2004 (Cth).

2.        The plaintiff pay the first defendant’s costs.

I publish those orders.

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

The plaintiff is a citizen of Sri Lanka.  He arrived in Australia on 2 October 2012 as an unauthorised maritime arrival.  On 5 January 2016, he lodged an application for a Safe Haven Enterprise protection visa.  On 25 October 2016, the application was refused by a delegate of the Minister.  On 8 June 2017, the Immigration Assessment Authority (“the Authority”) affirmed the decision of the delegate.  On 20 February 2018, the Federal Circuit Court of Australia (Judge Street) dismissed the plaintiff’s application for judicial review of the Authority’s decision[1].  On 19 November 2018, the Federal Court of Australia (Banks‑Smith J) refused the plaintiff’s application for an extension of time within which to appeal from the decision of the Federal Circuit Court[2]. 

[1]CYN17 v Minister for Immigration & Border Protection [2018] FCCA 427.

[2]CYN17 v Minister for Immigration and Border Protection [2018] FCA 1773.

An application for special leave to appeal to this Court from the decision of the Federal Court would be incompetent by reason of s 33(4B)(d)(iv) of the Federal Court of Australia Act 1976 (Cth). The plaintiff’s application, which challenges the decision of the Federal Court in the original jurisdiction of this Court, if successful would circumvent that statutory restriction upon appeal. That application, filed on 21 January 2019, is for a constitutional or other writ against the Minister and the Authority, seeking orders including that the decision of the Federal Court be set aside and that a writ of mandamus issue to the Minister and the Authority requiring them to determine the plaintiff’s application according to law.

There are basic problems with the application.  The ground of review that is relied upon by the plaintiff in the original jurisdiction of this Court is that the Federal Circuit Court judge erred in failing to find jurisdictional error in the decision of the Authority.  But the plaintiff does not assert any jurisdictional error by the Federal Court judge and does not seek a writ of certiorari to quash the decisions of the Federal Circuit Court, the Authority, or the delegate of the Minister.

Other than in relation to the decision of the Federal Court, an application for a writ of certiorari to quash any other decision would be out of time[3].  It would subvert the regime of merits review, judicial review, and appeals if, at the conclusion of that process, a plaintiff had a general right to seek judicial review afresh, out of time, in the original jurisdiction of this Court.  Exceptional circumstances are required before this Court would accede to such an application.  Those circumstances do not exist here.  Any such application by the plaintiff in this case would have no prospect of success.

[3]High Court Rules 2004 (Cth), r 25.02.2(a). See also Migration Act 1958 (Cth), s 486A(1).

Before the Federal Circuit Court the plaintiff had submitted that the Authority erred by concluding that it could not have regard to new information provided by the plaintiff, being a report of the United Nations Committee against Torture (“the CAT report”) that considered, amongst other things, the detention of persons in Sri Lanka by police while conducting investigations and allegations of torture during this period of detention.  The Authority noted that there was “no indication in the applicant’s claims that he would be subject to pre‑trial detention or criminal investigations”[4] of the type described in the CAT report and concluded that it was not satisfied that there were “exceptional circumstances” that justified the Authority considering the “new information” within s 473DD(a) of the Migration Act 1958 (Cth). The Federal Circuit Court judge concluded that the Authority was correct that the plaintiff had not raised these claims of concern in relation to pre‑trial detention or criminal investigations[5].

[4]Quoted in CYN17 v Minister for Immigration and Border Protection [2018] FCA 1773 at [31].

[5]CYN17 v Minister for Immigration & Border Protection [2018] FCCA 427 at [48].

In the Federal Court, the only ground of appeal proposed by the plaintiff, who was represented by counsel, was that the Federal Circuit Court judge erred in failing to find jurisdictional error arising from the Authority’s conclusion that the CAT report was new information about which the Authority was not satisfied that there were exceptional circumstances to justify considering it[6].  The Federal Court judge explained that the plaintiff did not challenge the Authority’s understanding of exceptional circumstances nor did the plaintiff suggest that there was any failure to take into account relevant matters that would have informed the question of whether there were exceptional circumstances[7].  Her Honour then concluded, with respect correctly, that the Authority’s decision that it was not satisfied as to there being exceptional circumstances was one that was justified by the reasons it gave[8].

[6]CYN17 v Minister for Immigration and Border Protection [2018] FCA 1773 at [35].

[7]CYN17 v Minister for Immigration and Border Protection [2018] FCA 1773 at [48].

[8]CYN17 v Minister for Immigration and Border Protection [2018] FCA 1773 at [49].

In this Court, the plaintiff was given the opportunity to file written submissions in addition to the argument made in his application, but no submissions were filed. In circumstances in which the application does not disclose an arguable basis for the relief sought, the application is dismissed without an oral hearing pursuant to r 25.09.1 of the High Court Rules 2004 (Cth). The plaintiff must pay the first defendant’s costs.

Please adjourn the Court.

AT 9.32 AM THE MATTER WAS CONCLUDED