Hettiarachchige v MIMIA & Anor

[2005] HCATrans 982

[2005] HCATrans 982

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M15 of 2005

B e t w e e n -

DARMARUCHI MANARANJANA HETTIARACHCHIGE

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

DANICA BULJAN (CONSTITUTING THE MIGRATION REVIEW TRIBUNAL)

Second Defendant

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 23 NOVEMBER 2005, AT 9.39 AM

Copyright in the High Court of Australia

__________________

MR D.M. HETTIARACHCHIGE appeared in person.

MR W.S. MOSLEY:   If the Court pleases, I appear for the first respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   We need, I think, the services of an interpreter to assist you, is that right?

MR HETTIARACHCHIGE:   …..

HIS HONOUR:   Mr Interpreter, would you mind coming to the lectern and either taking the oath or the affirmation to interpret.

CHANDRASIRI GANEGODA, affirmed as interpreter:

HIS HONOUR:   Thank you, Mr Interpreter.  Would you be good enough to tell the applicant that the Minister is asking for orders that the applicant’s application to this Court in effect be dismissed and that what I propose to do is to hear from Mr Mosley, first, on behalf of the Minister, to hear what he has to say in support of the Minister’s application and then after Mr Mosley has finished I will ask the applicant what he wants to say in answer.  So if you would both be good enough to have a seat at the Bar table, I will hear from Mr Mosley first.

Yes, Mr Mosley, you are moving on the summons of, I think, 16 November 2005, is that right?

MR MOSLEY:   Yes, filed on the 17^th, dated the 16^th, I think, your Honour, and we do so on the basis that the application for an extension to show cause should be refused.

HIS HONOUR:   What is the affidavit material on which you rely?

MR MOSLEY:   There is an affidavit, your Honour, in support sworn by Elena Iolanda Arduca.  So that is about sworn on 16 November 2005.

HIS HONOUR:   Would you let me just get that?  We have at the moment lots of exhibits but the affidavit is what I am missing.  Yes, I have the affidavit.  You read that affidavit, do you?

MR MOSLEY:   I do so, your Honour, yes.

HIS HONOUR:   Yes.

MR MOSLEY:   We have filed some submissions in support of the application.

HIS HONOUR:   Yes, I have seen that.  Mr Interpreter, is there any objection to the affidavit of Ms Arduca?  Could you ask the applicant whether he has any objection to the affidavit that the Minister has filed?

MR HETTIARACHCHIGE (through interpreter):   Your Honour, I am not sure about the law but I have some matters to be told to the Court about the affidavit.

HIS HONOUR:   Yes.  Perhaps then if again you would be good enough, Mr Interpreter, to come to the middle, it just will help the transcription, and if the applicant tells you what he wants to tell me about the affidavit.

MR HETTIARACHCHIGE (through interpreter):    I am sure that my brother has some mental condition and we have submitted medical reports to that effect, but in my opinion it is not accepted that he has a severe mental condition.  The member who heard the application at the MRT had not accepted the medical reports.  The fact that my brother has gone back to Sri Lanka has been taken as a reason to reject and when he went to Sri Lanka, good, to get treatment we could have – if that was the case, we could have produced further medical evidence to say that he was under treatment.

We informed the MRT that my brother needed – the Federal Court – we informed the Federal Court that my brother needed my support which has not been considered.  There is one…..able to.  On these reasons, my request is to reheard this – my application.

HIS HONOUR:   Yes.  Thank you very much.  Perhaps if you would sit down.  Yes, Mr Mosley.

MR MOSLEY:   Your Honour, we submit that there are a number of alternate ways on which we would invite the Court to dismiss the application.  If I could address your Honour in respect of those, it is our submission that your Honour should refuse to enlarge time.  Has your Honour had a chance to look at the – does your Honour wish me to address you on that aspect first?

HIS HONOUR:   Yes, on that aspect and in that respect could you be good enough to give me what you say are the principal dates that bear upon that issue.

MR MOSLEY:   Yes, your Honour.  The application, we say, is, insofar as a writ of certiorari is concerned, some 22 months out of time and insofar as a writ of mandamus is concerned which is sought by the applicant, it is some 26 months out of time.  The relevant dates are these, your Honour.  The decision made by the Migration Review Tribunal was made on 24 October 2002 and this application was made on 28 February 2005, the application for an order to show cause.

On my calculations that is some 28 months after the Migration Review Tribunal’s decision which would mean, in terms of the High Court Rules, six months for certiorari and two months for mandamus, it is 22 and 26 months, respectively, out of time.

HIS HONOUR:   And those rules are, respectively, rule 25.06.1 in respect of certiorari and 25.07.2 in respect of mandamus, is that right?

MR MOSLEY:   Yes.  Your Honour, of course, has a power to extend time.

HIS HONOUR:   Yes.

MR MOSLEY:   But we would submit your Honour ought not do so, and they are the relevant timeframes.  In terms of authority, your Honour will have been referred on many occasions to the decision of Justice McHugh in Re Commonwealth; Ex parte Marks which is in our book of authorities.

HIS HONOUR:   Yes.

MR MOSLEY:   In broad summary, we would submit that the MRT decision has already been subject to review and the public interest requires there be an end to litigation, as Justice McHugh said in paragraph [15] of that authority.

HIS HONOUR:   When the applicant sought review it was ultimately heard in the Federal Magistrates Court, but in which court was it instituted and what form did that application for review take?

MR MOSLEY:   It was an application that was made under section 483A of the Migration Act, your Honour, in the Federal Magistrates Court.

HIS HONOUR:   Section 483A.

MR MOSLEY:   That specifies the jurisdiction of the Federal Magistrates Court and states:

Subject to this Act and despite any other law, the Federal Magistrates Court has the same jurisdiction as the Federal Court in relation to a matter arising under this Act.

Which then takes one back to section 475A, which deals with the jurisdiction of the Federal Court, and relevantly the jurisdiction arises under section 39B.

HIS HONOUR:   But it was 39B relief that ultimately lay at the root of the proceedings?

MR MOSLEY:   Yes, your Honour.

HIS HONOUR:   That is to say relief of the same kind as is sought now in this Court?

MR MOSLEY:   Yes, under section 75(v), your Honour.  As Justice McHugh said, the case would need to be exceptional.  It is well out of time.  In our submission, it has been dealt with.  It was dealt with on appeal, of course, by her Honour Kenny, who set aside the decision of the Federal Magistrate and dismissed the applicant’s application for the reasons her Honour gave.  A further submission we would make to your Honour on that issue is that the plaintiff was represented below by solicitors and counsel.  There was an original application filed on 6 November 2002, then there was an amended application filed on 9 January 2003, then a further amended application was filed on 29 May 2003, and then an additional ground was raised on the appeal before Justice Kenny.

HIS HONOUR:   At each of those stages was the applicant represented?

MR MOSLEY:   He was represented, yes, on both occasions before Federal Magistrate Hartnett.  He was represented by solicitors and certainly counsel whose name appears – yes, solicitors and counsel.  So much appears from the decision of the Federal Magistrate which is one of the exhibits, EIA2, to the affidavit of Ms Arduca.

HIS HONOUR:   Yes, I have that.

MR MOSLEY:   It is on about the second page your Honour will see the name of the counsel for the applicant and the solicitors.

HIS HONOUR:   Yes.

MR MOSLEY:   Similarly, if one looks at the exhibit EIA6, which is the exhibit of the decision and reasons of Justice Kenny, the same counsel and I think the same solicitors – perhaps not the same solicitor.

HIS HONOUR:   Yes, there seems to be a mistake in the record at page 28 of the reasons in that counsel for the appellant and respondent have been transposed, have they not?

MR MOSLEY:   No.  It is a bit unusual in the sense that the applicant was successful before the Federal Magistrate.

HIS HONOUR:   Yes, but did not Mr Fairfield appear for the Minister?

MR MOSLEY:   No, Mr Livermore appeared for the Minister on the appeal.

HIS HONOUR:   Mr Livermore.  I see.  Yes.

MR MOSLEY:   The Minister was successful.

HIS HONOUR:   Yes, I see.

MR MOSLEY:   We would submit, your Honour, the institution and disposition of those earlier proceedings is a bar.  Whether one considers it as a ‑ ‑ ‑

HIS HONOUR:   Does it come to this on this aspect of the matter, recognising that you would also wish to advance other difficulties, or you would want to say hurdles, in the way of the applicant?  The applicant is out of time for commencing these proceedings.  That is step one.  Step two, the applicant has already applied for relief of the kind he would now seek from this Court but failed and that process extended to an appeal to the Federal Court.  In those circumstances, no reason is offered sufficient to warrant an extension of time.  Is that the substance of the argument?

MR MOSLEY:   That is, your Honour, and, in addition, that apart from the manner that it is put under 39B or 75(v), the matters which the applicant seeks to agitate again are the same matters, as I pointed out in our submissions, that have been dealt with precisely by Justice Kenny on appeal.

HIS HONOUR:   It may be, I think, of assistance, Mr Mosley, if I hear now from the applicant in answer to that aspect of the argument and see where then we go to.

MR MOSLEY:   As your Honour pleases.

HIS HONOUR:   Yes.  Mr Interpreter, would you be good enough to tell the applicant that the argument against him takes these steps.  Step one is that his application to this Court is filed outside the times fixed by the Rules of Court.  Step two is that although I have power to extend time I should not for reasons I will come to in a moment.

The reasons that are offered are these.  First, the applicant has already gone to court about the decision he wants to challenge and that case was heard not only by a magistrate but also on appeal in the Federal Court.  The second element that the Minister says is present is that the points the applicant wants to raise now are the same as the points that were already raised and dealt with in the other case.  That is the case that is put against him.  Now is his chance to say anything in answer to that case that he wants to put.

MR HETTIARACHCHIGE (through interpreter):    In all those earlier cases I had the assistance of a solicitor.  What happened to me was I thought since I appealed to the Federal Court after the MRT within 28 days I thought that since I didn’t know the law very well I thought the same time framework exists here also.  When I am unsuccessful at the court every time I go to the Immigration and get a bridging visa and every time then I thought I am not staying in Australia unlawfully.

In my opinion I thought I am in the correct part and in one occasion we won the case.  I was given advice by my solicitor and I thought I am doing the correct thing and the fact remains that my brother was sick.  What I am saying is the fact that he is sick is the truth and he is a citizen of Australia and he needs my support and I have an obligation as the brother to support him.  That is why I am appealing to you.

HIS HONOUR:   Yes.  Is there anything else you wish to add?

MR HETTIARACHCHIGE(through interpreter):    Yes, that is all.

HIS HONOUR:   Yes.  Thank you very much, Mr Interpreter.  Mr Mosley, I need not trouble you in reply.

MR MOSLEY:   If your Honour pleases.

HIS HONOUR:   On 28 February 2005 the plaintiff filed an application for an order to show cause directed to the Minister for Immigration and Multicultural and Indigenous Affairs and to the person who had constituted the Migration Review Tribunal when that Tribunal decided on 24 October 2002 to affirm the decision of a delegate of the Minister rejecting the plaintiff’s application for a change in circumstance residence class AG visa.

The plaintiff is a Sri Lankan national.  He first arrived in Australia in January 1996 as the holder of a short stay visitor class TR visa subclass 676.  He has since remained in Australia.  In July 1998 the plaintiff applied for a change in circumstance residence class AG visa contending that his brother, an Australian citizen, was sick and needed the plaintiff’s support.  A delegate of the Minister rejected that application in January 2002 and the plaintiff applied to the Migration Review Tribunal for review of that decision.  On 24 October 2002 the Tribunal affirmed the decision of the delegate. 

The plaintiff, being aggrieved by the decision, applied to the Federal Magistrates Court for relief under section 39B of the Judiciary Act 1903 (Cth). On 13 June 2003 that court granted the relief which the plaintiff had sought and in effect quashed the decision of the Tribunal. The Minister appealed to the Federal Court of Australia against that decision of the Federal Magistrates Court. Justice Kenny of the Federal Court, exercising the appellate jurisdiction of that court, allowed the appeal and by orders made on 3 February 2005 set aside the orders made by the Federal Magistrate and in lieu thereof ordered that the plaintiff’s application to the Federal Magistrates Court be dismissed with costs,.

The plaintiff made no subsequent application for special leave to appeal to this Court against the decision of Justice Kenny; rather, on 28 February 2005 the plaintiff commenced the proceedings that now are in issue.

The Minister seeks orders summarily terminating the proceedings instituted by the plaintiff.  The Minister would seek to make a number of arguments in favour of the conclusion that the proceedings should be brought to an end.  I have, however, confined argument today to one set of arguments which the Minister would advance in support of the conclusion for which she contends.

The proceedings which the plaintiff has commenced in this Court seek a declaration that the decision made by the Tribunal is void and of no force and effect.  In addition, the plaintiff seeks certiorari to quash or set aside that decision, prohibition to the Minister prohibiting her from acting upon or giving effect to or proceeding upon the decision, mandamus or an injunction compelling the Minister and the Tribunal, or perhaps only the Minister, to cause the Tribunal to consider and determine, according to law, the plaintiff’s application for a visa, and an extension of time within which to commence the proceeding.

As is implicit in the last form of relief sought by the plaintiff, insofar as the plaintiff seeks certiorari, the application for that order is made outside the period of six months prescribed by rule 25.06.1 of the Rules.  Further, insofar as the plaintiff seeks mandamus, the application is made beyond the period of two months fixed by rule 25.07.2 of the Rules. 

As has now been pointed out in a number of applications of the kind now in question, mandamus and certiorari are both discretionary remedies.  Moreover, the times fixed by the Rules of Court within which applications for relief of that kind is to be made are times that are fixed having regard to the public nature of the decisions which it is sought to question.  As Justice McHugh pointed in Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 at 495, paragraph [15], the writs of certiorari and mandamus:

are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

As his Honour also said in that case, 177 ALR 491 at 496, paragraph [16]:

The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court.  In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.

In the present matter the plaintiff has already resorted to the judicial power of the Commonwealth to challenge the decision which he now seeks to put in issue in the present proceedings.  He applied to the Federal Magistrates Court for relief of the kind which he would now seek from this Court.  The decision in his favour in the Federal Magistrates Court was subject to appeal to the Federal Court of Australia and the plaintiff failed in resisting that appeal.

Both in the Federal Magistrates Court and in the Federal Court the plaintiff was represented by counsel and solicitors and at least in large measure, perhaps even entirely, the grounds which he would now seek to advance in this Court were grounds which he had advanced in the Federal Magistrates Court in support of the contention that relief should be granted under section 39B of the Judiciary Act.

In these circumstances, there is, in my opinion, no basis upon which any extension of time should now be afforded to the applicant for commencing the proceedings which he would now seek to advance in this Court.  That being so, it would follow that the plaintiff’s application insofar as it seeks certiorari and mandamus should stand dismissed.  That would leave open, however, his application for other relief, notably, declaration, prohibition or injunction.

Insofar as prohibition or injunction are concerned, those are forms of relief, the availability of which is premised upon the quashing or setting aside of the decision which the plaintiff now would seek to challenge by the proceedings in this Court.  Certiorari to quash the decision not being available, the premise for the grant of declaration or injunction could not be established.

Insofar as prohibition is sought by the proceedings, prohibition again is a form of relief which would not go unless or until certiorari to quash the decision of the Tribunal were granted.  So long as the decision of the Tribunal stands, a grant of prohibition would be inapposite and such steps as the Minister may take to give effect to or proceed upon the decision of the Tribunal are steps which are required by the Statute.  That being so, none of the relief which the plaintiff seeks is available to him.

The proceedings which he has instituted should stand dismissed.  It is inevitable that they must be dismissed with costs. 

The order is proceeding dismissed with costs.

MR MOSLEY:   If your Honour pleases.

HIS HONOUR:   Yes.  Thank you, Mr Interpreter.  Thank you for your services.

AT 10.18 AM THE MATTER WAS CONCLUDED