MZAHI v. Minister for Immigration and Border Protection & Anor

[2016] HCATrans 130

[2016] HCATrans 130

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M35 of 2016

B e t w e e n -

MZAHI

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 JUNE 2016, AT 9.30 AM

Copyright in the High Court of Australia

MZAHI appeared in person.

MR S.M. REBIKOFF:   If the Court pleases, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Plaintiff, I will call you that rather than by your name.  I trust you do not regard it as rude, but for reasons which you will understand, it is important that your identity not be disclosed.  Are you ready to proceed, Mr MZAHI?

MZAHI (through interpreter):   Yes.

HIS HONOUR:   Good.  Now, I have read your papers.  Is there anything that you would like to add to what is in writing?

MZAHI (through interpreter):   No.

HIS HONOUR:   Thank you, you may take a seat, Mr MZAHI.  Mr Rebikoff.

MR REBIKOFF:   Thank you, your Honour.  I take it your Honour has received the first defendant’s outline of submissions dated 24 May 2016?

HIS HONOUR:   I have, thank you, and I am grateful for them.

MR REBIKOFF:   Thank you.  Your Honour, the application for an order to show cause filed by the plaintiff seeks an order in the nature of certiorari to quash a decision of the Federal Court dated 17 February 2016, and an order in the nature of mandamus directed at the Minister requiring him to reconsider a decision of his delegate to refuse to grant the plaintiff a protection visa.  It is not entirely clear from the application whether relief is also sought in relation to the decision of the then Refugee Review Tribunal on review of the delegate’s decision.  The relief specified in the application only refers to the Minister and the Federal Court, but the grounds refer to the decision of the Tribunal.

HIS HONOUR:   Yes.

MR REBIKOFF:   However, insofar as relief is sought in relation to the decision of the delegate or the Tribunal, the Minister’s position is that the application is well outside the time provided under section 486A of the Migration Act and the rules of this Court.  Further, the Minister contends it is not in the interests of the administration of justice to enlarge the time, having regard to the extent of the delay, the failure to offer any adequate explanation for the delay, the failure to articulate any asserted error in the decision of the delegate or the Tribunal, and the fact that both decisions

have already been the subject of review; the delegate’s decision by the Tribunal, and the Tribunal’s by the Federal Circuit Court.  I should just check that the applicant is able to follow along with my submissions, your Honour.

HIS HONOUR:   Yes, thank you.

MR REBIKOFF:   Yes, I am told by the interpreter that the matters that I am putting, which are a summary of what is in my submissions, have already been interpreted to the applicant.

HIS HONOUR:   Thank you.

MR REBIKOFF:   Your Honour, in those circumstances, seeking to challenge the decisions of the delegate and the Tribunal again in this Court is an abuse of process of the kind described by Justice Gageler in Plaintiff S3/2013, and I have quoted the relevant passage in paragraph 26 of the submissions. Insofar as relief is sought in relation to the decision of the Federal Court, the Minister’s position is that the application fails to disclose any arguable basis for the relief claimed and is an abuse of process, having regard to the availability of an application for special leave to appeal from the Federal Court’s decision under section 33(4) of the Federal Court of Australia Act.

The only substantive complaint about the decision of the Federal Court appears to be that the court did not fully or adequately consider the merits of the plaintiff’s claim for protection.  That appears to be the effect of the affidavit of the plaintiff.  That, of course, is not the role of a court on judicial review, and there was no error in the court confining itself to the question of whether there was legal error in relation to the consideration of the plaintiff’s claims by the Tribunal and the Federal Circuit Court.

Further, the court was clearly correct to conclude there was no such error and, on that basis, the Minister contends the application should be dismissed under rule 25.03.3 of the Rules.  The Minister also seeks an order that the plaintiff pay his costs of the application.

HIS HONOUR:   Thank you, Mr Rebikoff.  Mr MZAHI, having heard Mr Rebikoff, is there anything that you wish to say in response?

MZAHI (through interpreter):   Sir, I have nothing to say in response to what the prosecutor said but I am relying on the submission of medical certificate should have been considered; that is what I was told.

HIS HONOUR:   He is relying upon his written submission?

MZAHI (through interpreter):   On the submission of medical certificate should have been considered.  That is what I am relying on.

HIS HONOUR:   All right, thank you very much.  You may take a seat.

MR REBIKOFF:   Sorry, your Honour, just to clarify, I believe the interpreter is saying “medical certificate”.  He was relying on the submission of the medical certificate.

HIS HONOUR:   Thank you very much.  Mr Interpreter, could you ask Mr MZAHI, when he refers to the medical certificate, he is referring to the medical certificate that he provided to the Tribunal?

MZAHI (through interpreter):   That is so, the one I provided to the Refugee Review Tribunal.

HIS HONOUR:   Thank you very much, you may take a seat.

This is an application for an order to show cause why orders in the nature of prohibition, certiorari and mandamus should not go to quash a decision of the Federal Court of Australia (Davies J) and to require the first‑named defendant (the Minister) to reconsider a decision to refuse to grant the plaintiff a Protection (Class XA) visa under the Migration Act 1958 (Cth) (“the Act”).

The plaintiff is an Indian citizen who arrived in this country on 18 July 2008 as the holder of a student visa.  A further student visa was granted to him on 24 November 2010.  That expired on 1 September 2011.  On 26 August 2011, the plaintiff applied for a skilled graduate visa.  A delegate of the Minister refused the application.  The plaintiff then applied to the Migration Review Tribunal for review of the delegate’s decision.  On 24 June 2013, the Tribunal dismissed the application on the ground that it had been made too late and, therefore, was beyond the Tribunal’s jurisdiction.

On 12 July 2013, the plaintiff applied for a Protection (Class XA) visa (“the protection visa”) but, on 18 October 2013, a delegate of the Minister refused to grant the protection visa.  The plaintiff sought a review of the delegate’s determination before the Refugee Review Tribunal and, in the first place, the matter was listed to be heard before the Tribunal on 22 January 2014.  Due to the unavailability of one of the members, the hearing of the matter had to be rescheduled for hearing on a later date.

On 14 March 2014, the plaintiff was notified by letter that the matter had been relisted for hearing on 17 April 2014 at 1.00 pm.  The plaintiff replied by letter stating that he intended to appear at the hearing and that he required a Tamil interpreter.  As events transpired, however, the plaintiff did not appear on 17 April 2014.  Instead, he telephoned the Tribunal on that day and stated that he had misread the hearing invitation.  He later confirmed that explanation in writing.

The matter was then relisted for hearing on 27 May 2014 and the plaintiff was notified of the new date for hearing by letter dated 2 May 2014.  Once again, he responded stating that he would appear.  Once again, however, he did not appear.  Instead, on that occasion, he telephoned the Tribunal on the date of hearing and stated that he would not be attending because he was unwell.  He undertook that he would send a copy of a medical certificate when it was issued.

Two days later, on 29 May 2014, an officer of the Tribunal telephoned the plaintiff at 9.35 am and again at 10.48 am but on each occasion was unable to make contact with the plaintiff.  The officer called again at 13.23 pm however and, on that occasion, was able to speak to the plaintiff.  The officer requested that the plaintiff provide the foreshadowed medical certificate by the following day.  On 29 May 2014, the plaintiff sent a letter to the Tribunal, which was received on 30 May 2014, in which the plaintiff apologised for failing to attend the hearing and asked that the hearing once again be rescheduled.  He also enclosed a medical certificate signed by a doctor on 27 May 2015, which stated that:  “In my opinion, he/she will be unfit for his/her normal work from 27/5/14 to 28/5/14 inclusive (medical condition)”.

The Tribunal did not reschedule the hearing. Instead, it determined pursuant to section 426A of the Act to make a decision on the review without taking any further action to allow or enable the plaintiff to appear. It then proceeded to affirm the delegate’s decision. In its reasons for decision, which were published on 30 May 2014, the Tribunal found that the plaintiff’s claims were vague and lacked detail. It noted that, despite having arrived in Australia in 2008 as a student, and having by and large been here ever since, the plaintiff did not raise concerns about his safety in India until 2013. Nor did he adequately explain why, if he truly apprehended a risk of harm, he twice returned to his home region in India after claiming to have fled from the prospect of harm.

The Tribunal found that, contrary to the plaintiff’s claims, it was not satisfied that the plaintiff or his family had been involved in politics in Tamil Nadu or wider India or that they had been involved in a dispute over land. Nor was it satisfied that the plaintiff had suffered harm in the past or that he faced a real risk of harm in the foreseeable future. The Tribunal concluded that the plaintiff did not face a real risk of serious or significant harm under section 36(2)(a) or 36(2)(aa) of the Act and, therefore, that the decision of the delegate should be affirmed.

On 30 June 2014, the plaintiff applied to the Federal Circuit Court for judicial review of the Tribunal’s decision, on the sole ground that the Tribunal had erred by not allowing the plaintiff to appear and present argument in support of the application.  The matter came on for hearing before Judge Riley on 3 September 2015.  The plaintiff appeared in person.  During the hearing, the plaintiff advanced a number of additional grounds in support of his application.  At the conclusion of the hearing Judge Riley gave ex tempore judgment dismissing the application.

In her reasons for judgment, Judge Riley noted that the plaintiff had not advanced an argument in support of the ground that the Tribunal erred by not allowing him to appear and present argument but, in any event, that her Honour was not satisfied that the Tribunal’s refusal to grant further time was unreasonable.  As her Honour observed, given the matter had once before been rescheduled to suit the plaintiff’s convenience, and that the medical certificate was manifestly insufficient to justify the plaintiff’s second failure to appear, it was not inappropriate for the Tribunal to proceed as it did, and it was not unreasonable in the sense considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18.

Her Honour further observed that each of the additional grounds which the plaintiff advanced in argument went either to the merits of the Tribunal’s findings or to the plaintiff’s personal circumstances, and so did not raise a question of law.  Consequently, her Honour was unable to detect a jurisdictional error in the Tribunal’s reasons.  She concluded that the application should be dismissed.

On 24 September 2015, the plaintiff appealed to the Federal Court of Australia on grounds that he had not been given a clear explanation of what was required by way of medical certificate to justify his failure to appear before the Tribunal on 27 May 2014, and that the Tribunal had failed to take into account his reasons for twice returning to India after claiming to have fled the prospect of harm.

The matter came on for hearing before Justice Davies on 17 February 2016. The plaintiff appeared in person. At the conclusion of the hearing, Justice Davies gave ex tempore judgment dismissing the appeal. Her Honour held that no error had been demonstrated in the conclusion of the Federal Circuit Court; that the Tribunal had not denied the plaintiff procedural fairness by proceeding in his absence under section 426A of the Act; that there was no substance in the plaintiff’s complaint that the Tribunal committed jurisdictional error by failing further to reschedule the hearing; and that there was equally no substance in the plaintiff’s complaint that the Tribunal erred in failing to take into account his reasons for twice returning to his home region after claiming to have fled the prospect of harm. Her Honour also noted, as the Federal Circuit Court had also observed, that, in fact, the Tribunal did consider the plaintiff’s reasons for so returning and concluded that, so far from supporting his claim of apprehension of fear, the reasons offered strongly suggested that he either did not or did not any longer face the prospect of harm.

On 9 March 2016, the plaintiff filed this application of which the sole ground is that: “Tribunal has not considered my situation at all behind the late application mad [sic] where I do not have exceptional circumstances”. Although the meaning of that ground is not altogether clear, I take it to be a contention that the Federal Court erred in not upholding the plaintiff’s complaint that the Federal Circuit Court was in error in rejecting the plaintiff’s submission that, by proceeding in his absence under section 426A of the Act, the Tribunal committed jurisdictional error. Possibly, the ground of application may also mean, and therefore I shall also deal with it on the basis, that the plaintiff is seeking relief in the court’s original jurisdiction in relation to the delegate’s decision or the Tribunal’s decision.

Beginning with the application for an order to quash the delegate’s and the Tribunal’s decisions, the time in which such an application is to be filed is limited by section 486A(1) of the Act to a period within 35 days after the decision or such longer as time as the Court allows. Additionally, rule 25.07.1 of the High Court Rules 2004 (Cth) sets a limit of two months on such further time as the Court or a Justice allows for an application for an order in the nature of mandamus. Either way, this application is profoundly out of time.

Time may be extended where it is in the interests of justice to do so.  The factors which are relevant include the extent of delay, whether there is a satisfactory explanation for the delay and the prospects of success on the substantive application.

As has already been observed, however, the delay is profound.  Nor is there any satisfactory explanation for the delay.  Rather, it appears that the plaintiff took every opportunity to appeal which was open to him and now, because he failed at each point, he is attempting, in effect, to appeal all over again in the guise of an application for an order to show cause.  I need not stay to consider whether that amounts to an abuse of process ‑ see and compare Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 678, paragraph 13, per Justice Gageler ‑ although, as at present advised, I am inclined to think that it does. It is enough to observe that, in the circumstances of this case, it is not a satisfactory explanation for delay.

The prospects of success on the substantive application also point very firmly against the grant of extension of time. Evidently, it was not at all unreasonable for the Tribunal to proceed under section 426A in the absence of the plaintiff, or for the delegate or the Tribunal to conclude that the plaintiff’s claims were improbable.

Nor do I consider that there is any substance in the plaintiff’s complaints about the judgment of the Federal Circuit Court and of the Federal Court.  There is nothing that suggests that the Federal Circuit Court was wrong in holding that the plaintiff failed to establish jurisdictional error on the part of the Tribunal, or, therefore, was wrong in dismissing the plaintiff’s application for judicial review.  For the same reason, it is to be doubted that the application discloses any arguable basis for the relief which is claimed (High Court Rules, r 25.03.3).  But, if and insofar as it may be taken to allege that the Federal Court was wrong in holding that the Federal Circuit Court made no error, the allegation is untenable.

In the result, the application to show cause is dismissed with costs.

MR REBIKOFF:   If the Court pleases.

HIS HONOUR:   I adjourn now until 12 o’clock.

AT 9.53 AM THE MATTER WAS CONCLUDED