Kuruwitage v MIAC & Anor

[2008] HCATrans 392

[2008] HCATrans 392

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M15 of 2008

B e t w e e n -

CHANDRA LAL PADMASIRI KURUWITAGE

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

MS LOUISE SPIELER IN HER CAPACITY AS MEMBER OF THE MIGRATION REVIEW TRIBUNAL

Second Defendant

Application for an order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 20 NOVEMBER 2008, AT 9.31 AM

Copyright in the High Court of Australia

MR C. WEERAKOON:   Your Honour, I am instructed to represent the client in this matter, the applicant, your Honour.  (instructed by the applicant)

MR R.C. KNOWLES:   If your Honour pleases, I appear for the first defendant.  (instructed by Clayton Utz)

HER HONOUR:   Yes, Mr Weerakoon.

MR WEERAKOON:   Yes, your Honour.  I received instruction at the eleventh hour last night and I was instructed to seek a further adjournment, your Honour, on the basis of medical recommendation on a letter issued by Dr Roy Nallaratnam who has recommended on the basis that he is not fit to attend Court for a further period of four weeks, your Honour, on the basis that he is not emotionally and psychologically fit enough to attend Court.

HER HONOUR:   Do you have a letter, do you, from Dr Nallaratnam?

MR WEERAKOON:   Yes, your Honour.

HER HONOUR:   Have you shown it to Mr Knowles?

MR WEERAKOON:   Yes, your Honour.

HER HONOUR:   How many copies do you have?  Have you had an opportunity to read it, Mr Knowles?

MR KNOWLES:   I have just received a copy immediately before we commenced, so I have had an opportunity to briefly look at that.

HER HONOUR:   Very well.  We are both in the same position.  We are both reading it at the same time.

MR KNOWLES:   Yes.

HER HONOUR:   Mr Weerakoon, you may sit down for a moment and I will read this letter.  Mr Weerakoon, is the doctor saying that your client will be fit to attend Court in four weeks time?

MR WEERAKOON:   That is what he says, your Honour.

HER HONOUR:   Have you spoken to the doctor yourself?

MR WEERAKOON:   No, your Honour.  I did not have time.  This was brought to me late in the evening yesterday.  So I had no occasion to sort of – I just called him and I think that his surgery opens at 9.30 or so, so I

just would not get across to him to ascertain what he really want us to do.  But all that he says is that he will be fit to attend Court, your Honour, in a matter of another four weeks from now.

HER HONOUR:   Yes.  You may sit down for a moment and I will hear from Mr Knowles.  Yes, Mr Knowles.  What is the attitude?  Do you need to get some instructions?

MR KNOWLES:   I have instructions and the position of the first defendant remains unchanged from that which I think was indicated to the Court in recent correspondence which was also copied in to the plaintiff, and that is that the matter ought to proceed.  The basis for that, your Honour, is that this involves a very straightforward, in the first defendant’s submission, case, a very straightforward point about whether or not there was an entry into Australia at a particular time.  That seems to be undisputed on the evidence before the Tribunal and before subsequent courts.  That means that there was simply no eligibility for the relevant visa subclass.  So it is not clear, for instance, in relation to this medical certificate how any inability to give a proper history of things would necessarily be relevant to the particular issue that is brought to bear in the present case.  The present case simply concerns ‑ ‑ ‑

HER HONOUR:   The doctor is not, of course, abreast of the simplicity of the issue.

MR KNOWLES:   No, that is so.  But that is certainly a matter which, in the first defendant’s submission, is relevant to the matter being dealt with sooner rather than later.  There have been other adjournments in the past and those adjournments my client has consented to.  There was an adjournment earlier in order for the plaintiff to, as I understand it, visit an ill relative overseas.  There was also another adjournment as a result of a medical certificate provided by Dr Nallaratnam in the past.  But in view of two things:  firstly, the ongoing delay and, secondly, the fact that today Mr Kuruwitage does have at least his representative here to make submissions on his behalf, in view of those matters, it is submitted that the matter ought to proceed today to be heard and determined insofar as it relates to the summons upon which the first defendant seeks to move.

HER HONOUR:   Yes.  Dr Weerakoon, you have heard what Mr Knowles has said, including him observing that you are here today and, accordingly, you will hear what he has to say in relation to the plaintiff’s application.  I would give you an opportunity, if you needed one, to obtain instructions in relation to whatever the plaintiff wishes to say by way of answer.  I should tell you, there is a very simple point at issue in this application and it is whether or not the plaintiff was or was not in Australia at a particular time.  He has given sworn evidence in the proceedings before me that he was in

Australia at a time which means that the result of the Tribunal was a correct one and, indeed, the only result the Tribunal could reach.  So do you wish to say anything to me in relation to that before I allow Mr Knowles to make the application, because I am minded to refuse the adjournment?

MR WEERAKOON:   Yes, your Honour.  I cannot.....in this regard, your Honour.  As he said, this is a straightforward matter and, to be frank, there is no locus standi for the plaintiff.  He has no legs to stand because he is way behind the cut‑off date which was 1 November 1993.

HER HONOUR:   Yes, by about three years, I think.

MR WEERAKOON:   He has arrived in 1996, 17 June, which is way back from that cutting off date. 

HER HONOUR:   Yes.  I mean, I accept your client’s evidence.  He says that is when he came to Australia.  He has given a sworn affidavit in which he has given that evidence.  So I am not sure that it matters.  Although I very much regret that he is unwell and not able to give a proper history, unless he wanted to contradict his own sworn evidence, there is really nothing more to be said, I would have thought.

MR WEERAKOON:   Because, if your Honour would note that in the past he has represented himself and so I think that is what he really wants, to come before your Honour’s Court and say whatever he wants.  But in that regard, of course, I do not know whether it will be a denial – it will amount to a denial of natural justice for him to be heard.

HER HONOUR:   You will appreciate that this matter has been adjourned many times now and it does involve a very straightforward point which turn on your client’s sworn admission in relation to a particular date.

MR WEERAKOON:   Yes, your Honour, that is undisputed, your Honour, the fact that he ‑ ‑ ‑

HER HONOUR:   It is undisputed, yes.

MR WEERAKOON:   Yes, that is undisputed, of course.

HER HONOUR:   Yes, very well.  I will not trouble you further unless there is something more you want to say.

MR WEERAKOON:   Yes, but I leave it to your discretion, your Honour, to grant leave to adjourn this matter further.

HER HONOUR:   Yes.  Well, I refuse the present application for an adjournment.  Do you wish to be excused or do you wish to stay to listen to Mr Knowles?

MR WEERAKOON:   Your Honour, I would prefer to listen.

HER HONOUR:   Prefer to be here.  Yes, Mr Knowles.

MR KNOWLES:   Yes, your Honour.  In relation to the application that is made in the summons which was filed on 17 April this year and in support of that summons there is an affidavit of Sarah Thompson dated 16 April this year.

HER HONOUR:   Yes, I have read that.

MR KNOWLES: Yes, thank you, your Honour. Therefore your Honour will know, as has previously been discussed today, that the MRT’s decision turned upon the plaintiff’s inability to meet the visa criterion in clause 435.213 of Schedule 2 to the Migration Regulations 1994 and that was because he entered Australia after 1 November1993.

Now, the Tribunal’s decision was the subject of previous judicial review proceedings.  That decision of the Tribunal was handed down on 30 October 2006.  The Federal Magistrates Court received an application for judicial review on 21 November 2006.  There was a directions hearing on 31 January 2007 and the plaintiff failed to attend that directions hearing and as a result of that failure to attend, the application was dismissed.

He subsequently applied for reinstatement of the application, but on 19 February 2007 that reinstatement application was refused by Federal Magistrate McInnes.  It was refused on the basis that he had not shown any reasonable excuse for his failure to attend the directions hearing, but, perhaps more importantly, on the basis that there were no prospects of success in relation to the proceeding. 

Then there was subsequently an application for leave to appeal out of time which was filed with the Federal Court.  That application was dismissed by Justice Middleton on 21 May 2007.  His Honour found no special reasons for an extension of time to be granted for the plaintiff to appeal from the decision of Federal Magistrate McInnes.  His Honour also agree with Federal Magistrate McInnes’ reasons insofar as they related to prospects of success.

There was then an application for special leave to appeal from the decision of Justice Middleton and that application was discontinued by the plaintiff on 6 February this year.  Then the application in the present proceedings was filed with this Court on 26 February this year.  In relation to the application itself, the grounds do not set out any basis, it is submitted, upon which there might be advanced a proper challenge to the Migration Review Tribunal’s decision, but beyond that, the application is obviously out of time.  In relation to the applicable time limits relating to a writ of certiorari, it is nearly 10 months out of time and in relation to the writ of mandamus, it is nearly 14 months out of time.

In the first defendant’s submission, prohibition is not an appropriate remedy.  The first defendant refers to previous decisions of this Court, such as Re Ruddock; Ex parte Reyes [2000] 177 ALR 484. Therefore, there is a need for an enlargement of time to be sought. In the circumstances of the present case, it is submitted that no such enlargement of time ought to be granted and the principles which were set out in the decision of Re Commonwealth; Ex parte Marks [2000] 177 ALR 491 are applicable here even though the High Court Rules have changed since that decision was made.

The plaintiff has not, in the first respondent’s submission, shown any exceptional circumstances to justify the delay.  The previous judicial review proceedings do not, in the first defendant’s submission, justify the delay in the present case and there is no other explanation provided for the delay.  Perhaps more importantly, there is simply no arguable case disclosed on the face of the application and in the circumstances of this case, this is one in which the public interest requires that there be an end to litigation about the efficacy of acts or decisions of public officials or bodies.

The summons that has been filed by the first defendant also sets out alternative bases upon which it is submitted that the present proceeding ought to be summarily dismissed.  Those bases relate to the matter either being barred by the application of principles such as res judicata, issue estoppel, Anshun estoppel or, alternatively, that the proceeding is an abuse of process.

HER HONOUR:   You do not need to spend too much time addressing me on those issues.

MR KNOWLES:   If your Honour pleases.  In the circumstances of this case, there is no dispute as to the applicable visa criterion and there is no dispute, so far as I am aware, that the visa criterion was applied correctly by the Tribunal in regard to the relevant facts of the case.  In the circumstances, it is submitted that the matter ought to be dealt with now and, on that basis, it ought to be dismissed such that the relief sought in the summons ought to be granted.

HER HONOUR:   Are you seeking costs?

MR KNOWLES:   Yes.  I am instructed that the first defendant is, your Honour.

HER HONOUR:   Mr Weerakoon, I invite you, if you wish, to respond.  Since you have decided you would prefer to stay, if you wish to say anything on behalf of the plaintiff, I invite you to do that now.

MR WEERAKOON:   Well, your Honour, to the issues addressed by Mr Knowles, of course I do not have any arguments to put forward to your Honour and I think I quite concur with what he submitted and, of course ‑ ‑ ‑

HER HONOUR:   Yes, I appreciate your candour in that respect.  Yes, thank you.  Thank you very much for attending.

On 26 February 2008 the plaintiff, a Sri Lankan national, filed an application for an order to show cause seeking writs of certiorari, mandamus and prohibition, and an extension of time, in respect of a decision of the Migration Review Tribunal (“the Tribunal”) dated 10 October 2006 affirming a decision made by a delegate of the Minister for Immigration and Multicultural Affairs refusing the plaintiff a Sri Lankan (Temporary) (Class TT) Subclass 435 Visa (“a Subclass 435 Visa”). 

The plaintiff has deposed by affidavit filed on 26 February 2008 that he arrived in Australia on 17 June 1996 as a holder of a Subclass 456 Business (Short Stay) Visa valid for three months.  On 26 July 1996 he was granted a Subclass 435 Visa.  On 1 August 1997 the plaintiff applied for a further Subclass 435 Visa.  He was refused the further Subclass 435 Visa on 7 August 1997 by the delegate of the Minister.  On 7 October 1997, on an application by the plaintiff, the then Migration Internal Review Office (“the MIRO”) affirmed the decision of the delegate.  The MIRO apparently wrote to the plaintiff advising him of its decision and that it was reviewable by the then Immigration Review Tribunal (“the IRT”) provided that that application was made “within 28 days of the date of this letter”.

By letter dated 24 February 2006 the Department of Immigration and Multicultural and Indigenous Affairs wrote to the Tribunal seeking advice as to the status of the plaintiff’s application to the MIRO.  In that letter the department noted the decision of the Full Court of the Federal Court in Minister for Multicultural Affairs v Singh [2000] FCA 377 which had held invalid the provision of the Migration Regulations pursuant to which the time for appeal to the IRT had apparently been calculated in the letter to the plaintiff advising of the 7 October 1997 decision.

The department also noted that the Migration Legislation Amendment Act (No 1) 1998 (Cth) (the Act which replaced the MIRO and the IRT with the Tribunal) contained a transitional provision in section 40(1) providing that if an applicant who had applied to the MIRO for a review of a decision had not been notified of the decision before the commencement of the relevant provisions of the Amendment Act, the application would be taken to be an application made under section 347 of the Migration Act 1958 (Cth) (“the Migration Act”) for review by the Tribunal. 

It was against this background that on 19 July 2006 the Tribunal wrote to the plaintiff pursuant to section 359A of the Migration Act asking him to comment on, among other things, information that he had entered Australia on 17 June 1996 and “Regulation 435.213”. This was a reference to clause 435.213 of Schedule 2 to the Migration Regulations which as at 1 August 1997 made it a criterion of a Subclass 435 Visa that the applicant entered Australia on or before 1 November 1993. The letter contained an explanation of the operation of clause 435.213 and stated that the information was:

relevant because if the Tribunal finds that you entered Australia after 1 November 1993 it will have option (sic) but to affirm the decision under review.

This should have read:

no option but to affirm the decision under review.

No complaint has been made by the applicant about this clear error.  The tribunal then invited the applicant to a hearing on 4 October 2006. 

On 30 October 2006 the Tribunal sent to the plaintiff a statement recording its decision dated 10 October 2006 affirming the decision of the delegate of the Minister to refuse the plaintiff a Subclass 435 Visa. Under section 65(1) of the Migration Act a visa may be granted only if the decision‑maker is satisfied of the prescribed criteria for the visa. The Tribunal determined that the plaintiff was ineligible for a Subclass 435 Visa because he arrived in Australia on 17 June 1996, that is after the date specified in clause 435.213.

The plaintiff applied to the Federal Magistrates Court seeking relief pursuant to section 39B of the Judiciary Act 1903 (Cth) quashing the decision of the Tribunal and remitting the matter further. The plaintiff did not attend on the first return date and his application was dismissed pursuant to rule 13.03A of the Federal Magistrates Court Rules. The plaintiff’s subsequent application for reinstatement was refused by McInnis FM on the grounds that, among other things, it would be futile to reinstate the application because the plaintiff could not satisfy the criterion for a Subclass 435 Visa, namely, arrival in Australia on or before 1 November 1993: Kuruwitage v Minister for Immigration and Citizenship [2007] FMCA 185.

On 16 March 2007 the plaintiff applied to the Federal Court of Australia for leave to file and serve out of time a notice of appeal from the judgment of McInnis FM.  Middleton J dismissed that application stating that he could find no basis on which the appeal could succeed since the plaintiff could not satisfy the criterion for a Subclass 435 Visa of arrival in Australia on or before 1 November 1993:  Kuruwitage v Minister for Immigration and Citizenship [2007] FCA 795.

On 14 June 2007 the plaintiff applied to this Court for special leave to appeal against the judgment of Middleton J.  On 30 January 2008 this Court wrote to the parties informing them that the application was listed for pronouncement of orders and publication of reasons on 7 February 2008, but the plaintiff discontinued his application on 7 February 2008 prior to the pronouncement of orders and publication of reasons.

On 26 February 2008 the plaintiff filed the present application. Orders for an extension of time were required as the application to this Court for relief by way of writs of certiorari and mandamus was made outside the times fixed by rules 25.06.1 and 25.07.2 of the High Court Rules 2004 for the making of such applications by 10 and 14 months respectively. The availability of prohibition depends on whether the decision of the Tribunal is liable to be quashed by granting certiorari: Re Ruddock; Ex parte Reyes (2000) 75 ALJR 465 at 468 [23]-[24] per McHugh J. In order to proceed, the plaintiff therefore requires an enlargement of time. There is a general power to enlarge time in rule 4.02 of the High Court Rules.

On 17 April 2008 the first defendant filed a summons seeking orders that the plaintiff’s application for the writs of certiorari and mandamus, and the extension of time, be refused or dismissed.  It can be noted that the second defendant has submitted to any order that the Court may make save as to costs.  The first defendant has filed an affidavit deposing to the history of the plaintiff’s application which culminated in the Tribunal’s decision on 10 October 2006 and the subsequent litigation in relation to that decision. 

This matter was first listed for hearing on 18 September 2008.  Written submissions filed in support of the plaintiff’s application are formulaic.  The matter was adjourned on 18 September 2008 to 23 October 2008 because of a claim in a letter from the plaintiff that he was unable to attend on that day because he had received a message informing him that his mother was seriously ill in Sri Lanka.  On 21 October 2008 the Court received a further letter from the plaintiff once again seeking an adjournment to a date in 2009 enclosing a letter from Dr Roy A. Nallaratnam, a consultant psychiatrist.  Dr Nallaratnam’s letter stated that the plaintiff had been referred to him for treatment of what Dr Nallaratnam said appeared to be a “confusional state”, that Dr Nallaratnam was treating the plaintiff with a course of medication and that the plaintiff was not likely to be fit to attend Court for a period of four weeks from the date of Dr Nallaratnam’s examination of the plaintiff on 17 October 2008.  The first defendant did not oppose the adjournment, but asked that the matter be listed on the first available date after 14 November 2008.  Accordingly, the hearing of the matter was adjourned to today. 

On 13 November 2008 the Court received another letter from the plaintiff seeking a further adjournment and enclosing a further letter from Dr Nallaratnam.  The second letter from Dr Nallaratnam stated the plaintiff was under his care for treatment of an “anxiety state” and that though the plaintiff’s condition had improved since the examination of 17 October 2008, the plaintiff was still too confused to give a reasonable history and that Dr Nallaratnam did “not consider him fit to give a proper history for some time in the future”.  Dr Nallaratnam’s letter also stated that he had requested the plaintiff to continue with the medication and that he would be reviewed shortly.

Today Mr Weerakoon appeared on behalf of the plaintiff and requested a further adjournment. A further letter was tendered from Dr Nallaratnam certifying that the plaintiff is reasonably well but cannot give a proper history and will not be fit to attend Court for a period of four weeks. The first defendant does not consent to the current application for an adjournment on the basis that Dr Nallaratnam’s letter does not state when the plaintiff might be able to give a proper history, but, more critically, that it will not be necessary for the plaintiff to give a proper history because, in any event, the uncontroverted evidence before the Court shows that the plaintiff cannot satisfy the criterion in clause 435.213, therefore any reconsideration of this matter by the Tribunal would be futile. That evidence includes sworn evidence by the plaintiff. Mr Weerakoon accepted that the plaintiff arrived in Australia on 17 June 1996. That fact is not disputed.

Public interest requires that there be an end to litigation about the efficacy of the acts or decisions of public bodies or officials:  Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 at 474 [15] per McHugh J. The application for an extension of time in this case must be understood in the context that the plaintiff has already had resort to the judicial power of the Commonwealth in his application in the Federal Magistrates Court and his appeal to the Federal Court seeking essentially the same relief that he would now seek in this Court if an extension of time were granted. Those decisions still stand and are not directly challenged in this proceeding. As already noted, an application for special leave to appeal from the decision of the Federal Court was earlier abandoned by the plaintiff.

In addition, the plaintiff has identified no reason to find that the Tribunal’s decision was affected by any error which would attract a grant of the relief he seeks. On the uncontroverted evidence supported now by the plaintiff’s own sworn admissions in this Court, it was clear that the plaintiff would not satisfy the criterion for a Subclass 435 Visa in clause 435.213 of Schedule 2 to the Migration Regulations, namely, arrival in Australia on or before 1 November 1993. The Tribunal decision to affirm the decision under review was therefore inevitable. See also SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at 1198 [29] per Gleeson CJ and Gummow, Callinan, Heydon and Crennan JJ.

In these circumstances, there would be no utility in granting either the adjournment which is today sought by the plaintiff or, for that matter, the extension of time also sought by the plaintiff.  The relief which the first defendant seeks by its summons of 17 April 2008 should be granted and an order made that the proceedings are dismissed with costs.

The order therefore is: 

The proceedings initiated by the plaintiff on 26 February 2008 are dismissed with costs.

Nothing further?

MR KNOWLES:   No, if your Honour pleases.

AT 10.03 AM THE MATTER WAS CONCLUDED