MZACS v Minister for Immigration and Border Protection

[2015] HCATrans 308

[2015] HCATrans 308

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M204 of 2015

B e t w e e n -

MZACS

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 24 NOVEMBER 2015, AT 11.47 AM

Copyright in the High Court of Australia

MR R.C. KNOWLES:   If it please the Court, I appear for the first defendant in this matter.  (instructed by Clayton Utz Lawyers)

HER HONOUR:   Could I have the matter called outside please, Registrar?

COURT OFFICER:   There is no appearance for the plaintiff, your Honour.

HER HONOUR:   Thank you, Registrar.  Has your instructor had any communication with the plaintiff, Mr Knowles?

MR KNOWLES:   The communication that I am aware of, your Honour, is service of the submissions, but at that time it does not appear that the covering letter that served those submissions reiterated what I understand had been conveyed to the plaintiff by the Court as to the hearing date.  So there has not been confirmation of the hearing date from my instructors as such although, as I understand it, there has been notice provided to the plaintiff of the hearing date from the Court that was provided to both parties, in essence.

HER HONOUR:   Has your client had, or your instructor had any communication from the plaintiff other than by that service of those submissions?

MR KNOWLES:   No, your Honour, there has not been any communication indicating, for instance, no attendance would occur today, indicating any explanation for a lack of attendance or any other matter that might explain why the plaintiff does not appear before the Court today.

HER HONOUR:   Yes, very well.

MR KNOWLES:   If it is of assistance to your Honour, I can hand up an affidavit going to the service of the submissions as such but, as I say, the covering letter does not assist with notifying of the hearing today.

HER HONOUR:   Is the covering letter in the exhibit?

MR KNOWLES:   Yes, it is, your Honour.

HER HONOUR:   All right, hand that up and let me have a look at it.

MR KNOWLES:   Thank you, your Honour.

HER HONOUR:   Yes, thank you.

MR KNOWLES:   Your Honour, in the Minister’s submission, despite there being no appearance, the matter should proceed today ‑ ‑ ‑

HER HONOUR:   Yes.

MR KNOWLES:   ‑ ‑ ‑ to be heard and dealt with, essentially on the basis that the plaintiff has had notice of the hearing date, there is no indication that he has not received that notice and also, having regard to the affidavit that I have provided to your Honour, the plaintiff was aware of the intention on the part of the Minister to seek summary dismissal given the nature of the attachment to that letter being the submissions seeking summary dismissal of the proceeding.

As your Honour will have seen from those submissions, there is – they are the submissions dated 18 November – obviously, there is an initial preliminary matter that I should mention to your Honour, and that is the name of the second defendant is ‑ ‑ ‑

HER HONOUR:   I will make an order that the second defendant’s name be substituted.

MR KNOWLES:   Thank you, your Honour.  Then other than the outline of submissions, your Honour should have received my instructor’s affidavit dated 11 November this year; my instructor, Ms Elizabeth Tan.

HER HONOUR:   Yes.

MR KNOWLES:   Thank you, your Honour.  May I take that affidavit as read?

HER HONOUR:   Yes.

MR KNOWLES:   In essence, for the reasons set out in the written submissions, your Honour, the Minister seeks that this matter be summarily dismissed today.  Firstly, for the reasons set out in those submissions, the Minister contends that there is no reasonable prospect of success in this matter.  Secondly, and in any event, insofar as the application seeks relief against the Tribunal, that application is out of time and there is no basis for an extension of enlargement of time to be granted.  Thirdly, and in any event, the Minister submits that where there have been previous proceedings in the Federal Circuit Court and the Federal Court seeking to litigate complaints that are now again brought before this Court, this application constitutes an abuse of process.  I do not know whether your Honour would like me to deal with any specific matters that are set out in the written submissions.

HER HONOUR:   No, it is fine.

MR KNOWLES:   Thank you, your Honour.  Well, in that case, the Minister simply relies on what is set out in those submissions.

HER HONOUR:   Thank you, Mr Knowles.  Take a seat.

On 9 September 2015, the plaintiff, a citizen of India, filed in this Court an application for an order to show cause seeking constitutional writs and related relief.  The plaintiff was, and remains, unrepresented.  The plaintiff did not attend the hearing today.  The Court had sent the plaintiff notice of the hearing date.  The plaintiff was also served with a copy of the first defendant’s outline of submissions by email on 18 November 2015 and by post.

The application for an order to show cause seeks an order in the nature of certiorari to quash the decision of the Federal Court of Australia dated 14 August 2015 and an order in the nature of mandamus requiring the Administrative Appeals Tribunal (“the Tribunal”) to review according to law a decision made by a delegate of the first defendant (“the delegate”) on 30 August 2013 not to grant the plaintiff a Protection (Class XA) visa under the Migration Act 1958 (Cth) (“the Act”).

Each application will be considered in turn.

First, the application for an order to show cause in relation to the Tribunal - this application was filed outside the time for the filing of the application pursuant to section 486A(2) of the Act and the High Court Rules 2004 (Cth). The plaintiff requires an enlargement of time. Before turning to that application for enlargement of time it is necessary to set out what has occurred since 30 August 2013.

The plaintiff filed an affidavit in which the following facts and matters were recorded.  First, the plaintiff applied to the Tribunal for review of the delegate’s decision.  The plaintiff did not attend that hearing before the Tribunal on 4 March 2014.  On 7 March 2014, the Tribunal affirmed the delegate’s decision not to grant the plaintiff a Protection (Class XA) visa.  On 3 April 2014, the plaintiff applied to the Federal Circuit Court to review the decision of the Tribunal.  The plaintiff’s grounds of review were as follows:

I applied for the visa to department of immigration which was refused.

Then I apply to [Tribunal] for review of that decision.

I think [Tribunal] and department of immigration did not look [at] my situation.

The plaintiff did not attend the hearing on 19 March 2015 in the Federal Circuit Court and the application for review was dismissed by Judge Riley pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 for non‑appearance.

On 9 April 2015, the plaintiff filed an application for reinstatement of the proceeding.  In an affidavit sworn by the plaintiff in support of that application the plaintiff explained that she was late for the hearing because her train was cancelled.  On 29 March 2015, the application for reinstatement was heard by Judge Riley.  Her Honour accepted the plaintiff’s statement that she was late for court on 19 March 2015 because her train was cancelled but her Honour was not satisfied that the plaintiff had a reasonable case in the substantive application.

After setting out the plaintiff’s grounds of review Judge Riley concluded that the reasons of the Tribunal showed that it had looked at the plaintiff’s situation, that the reasons set out verbatim the plaintiff’s claims and the reasons addressed why the Tribunal did not accept the bulk of those claims.  Her Honour concluded that there was no substance in the plaintiff’s claim that the Tribunal had not looked at her situation.  The application for reinstatement was dismissed.

On 11 May 2015, the plaintiff applied for leave to appeal to the Federal Court of Australia. The grounds of the application were, first, Judge Riley failed to find the Tribunal’s decision was in breach of section 424A of the Act and therefore fell under jurisdictional error. Second, there was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose that information in accordance with section 424A(1) of the Act. Third, there was another document which shows what was written in the document, referred to in brackets as the affidavit.

The application for leave to appeal was heard by Justice Tracey of the Federal Court on 14 August 2015. The plaintiff appeared with the assistance of an interpreter. The application for leave to appeal was dismissed. His Honour found that the plaintiff had no idea about section 424A of the Act, she was unable to identify any adverse information relied upon by the Tribunal that was not disclosed to her and that the plaintiff’s complaint had not been raised before the Federal Circuit Court. No appealable error was identified and so the proposed appeal had no reasonable prospects of success, according to Justice Tracey.

On 9 September 2015, the plaintiff filed the application for an order to show cause in this Court. To the extent that the application for an order to show cause seeks an order in the nature of mandamus in relation to the decision of the Tribunal, the plaintiff’s application for an order to show cause faces time limits: section 486A(1) of the Act and rule 25.07.1 of the Rules. As is well established, the Court may extend or enlarge these periods if it is satisfied it is in the interests of the administration of justice to do so.

In this case, it is not in the interests of justice to extend that time.  First, the plaintiff had a right to apply for judicial review of the decision of the Tribunal.  The plaintiff applied, and that application was dismissed.  Then the plaintiff sought leave to have the application reinstated in the Federal Circuit Court and the Federal Circuit Court judge considered the merits of the substantive application.  That application was unsuccessful.  The plaintiff then sought leave to appeal in the Federal Court and again that application was unsuccessful.  The fact that these applications were unsuccessful does not justify an order extending the time limit for applying for judicial review in this Court – see Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at 678, paragraph 13.

Then it is convenient to consider the plaintiff’s prospects of succeeding in her application in this Court. Under rule 25.03.3 at a hearing of an application for an order to show cause the Court may dismiss the application if it is not satisfied that the application raises an arguable case for the relief claimed. I have reviewed the earlier decisions, including the plaintiff’s complaint, the delegate’s decision, the Tribunal’s decision and the decisions of the Federal Circuit Court and the Federal Court. I can identify no appealable error. The application does not raise an arguable case necessary for the grant of the relief claimed. The argument sought to be advanced by the plaintiff does not have merit. The plaintiff does not set out any basis upon which it might be said the Tribunal did not comply with section 424A of the Act.

Moreover, even if contrary to the view formed the plaintiff had an arguable case, which she does not, the plaintiff has not provided any good reason why the application for an extension of time should be granted in relation to the decision of the Tribunal.  For those reasons, in my view, it is not in the interests of the administration of justice to make an order extending the time for the filing of the application to show cause in relation to the decision of the Tribunal and the application should be dismissed.

It is then necessary to consider the application for an order to show cause in relation to the Federal Court of Australia.  The plaintiff seeks an order in the nature of certiorari to quash the decision of the Federal Court of Australia dated 14 August 2015.  The first defendant told the plaintiff by letter dated 9 November 2015, the appropriate course for the plaintiff was to file an application for special leave to appeal that decision.  The first defendant invited the plaintiff to make such an application, and subject to the plaintiff discontinuing this proceeding and filing a special leave application by 16 November, the first defendant was prepared to consent to an extension of time to allow the plaintiff to file the application for special leave to appeal.  It may not be right to say that special leave could be sought but the plaintiff did not do so.

The plaintiff has identified in general terms her complaint with the decision of the Federal Court.  She stated in her affidavit:

The Federal court’s judge failed to find that the federal magistrates court’s decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error.

As I have previously stated, I have reviewed the plaintiff’s complaint, the delegate’s decision, the Tribunal’s decision and the decisions of the Federal Circuit Court and the Federal Court and I can identify no appealable error.  The application to show cause in relation to the decision of the Federal Court should be dismissed.

The orders I propose to make are as follows:

1.The name of the second defendant be changed to Administrative Appeals Tribunal.

2.The plaintiff’s application for an extension of time under section 486A(2) of the Act and rule 4.02 of the Rules is refused.

3.The plaintiff’s application for an order to show cause is dismissed.

4.The plaintiff is to pay the first defendant’s costs of the application.

Yes, Mr Knowles.

MR KNOWLES:   Your Honour, there was one minor matter arising out of the reasons that your Honour has just given and I would seek leave just to briefly mention that to the Court.

HER HONOUR:   Yes.

MR KNOWLES:   In relation to the letter that your Honour referred to from my instructors to the plaintiff dated 9 November 2015 which referred to an alternative course, being an application for special leave, that letter has come to my attention and, in my submission, the option of special leave in fact was not open to the plaintiff in the circumstances of this particular case. 

The reason I say that is by virtue of section 33(4B) of the Federal Court of Australia Act 1976. Unfortunately, I do not have that provision with me at the moment, your Honour, but certainly the Minister does not rely on the availability of that option. The Minister just relies upon other matters that your Honour has referred to in terms of there being no arguable basis for the relief sought.

What that provision says in the Federal Court of Australia Act is that it is not available to seek special leave to this Court in respect of certain interlocutory decisions that are made by the Federal Court ‑ ‑ ‑

HER HONOUR:   But this is not interlocutory, it is final, is it not?

MR KNOWLES:   Well, I should say it is more specific than that.  Perhaps I have mischaracterised it by saying “interlocutory”.  The provision states that where there is a determination by the Federal Court of an application for leave that is something that then cannot be subsequently the subject of an application for special leave to this Court.  That is simply my reading of it, and I just mention that to the Court at this juncture.

HER HONOUR:   I will get the rule.  What I propose to do is this, Mr Knowles.  There were two bases on which I dismissed the application for an order to show cause.  I will look at the first ground and if it is not a ground which is open then I will amend the reasons for decision accordingly but, in my view, the second ground is sufficient in its own terms to support dismissal.

MR KNOWLES:   Indeed, and that is certainly the tenor of the Minister’s submissions as well, your Honour.

HER HONOUR:   All right.  I will make orders in those terms.

MR KNOWLES:   If your Honour pleases.

HER HONOUR:   Thank you.  Adjourn the Court.

AT 12.06 PM THE MATTER WAS CONCLUDED