MZPAL v MIMIA & Ors

[2006] HCATrans 71

[2006] HCATrans 071

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M114 of 2005

B e t w e e n -

MZPAL

Plaintiff

and

THE HONOURABLE AMANDA VANSTONE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Defendant

MR J. VRACHNAS IN HIS CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Defendant

THE PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL

Third Defendant

Summons

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 FEBRUARY 2006, AT 10.10 AM

Copyright in the High Court of Australia

__________________

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

MR C. WEERAKOON:   Your Honour, I am instructed to appear on a pro bono basis to assist the Court as well as the client who I was told would be here any moment.  He is on his way.  (instructed by the plaintiff)

HER HONOUR:   All right.  We do have other matters in the list with which we can deal, so I will stand this matter down for a short period if your client is on his way.

MR WEERAKOON:   Thank you, your Honour.

MR KNOWLES:    If your Honour pleases.

AT 10.11 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 10.37 AM:

MR WEERAKOON:   Yes, your Honour, I appear on a pro bono basis because my name is not on the court and the client is present here.

HER HONOUR:   Yes.  The procedure we will follow is I will call on the Minister first and then you can have an opportunity to respond on behalf of the plaintiff.

MR WEERAKOON:   Yes, your Honour.

MR KNOWLES:   Thank you, your Honour.  In this matter, the first defendant filed a summons on 9 January this year and I should also indicate that the plaintiff had previously filed a summons on 7 September last year.  In relation to the first defendant’s summons, I rely on the affidavit of Tom Mosby dated 9 January this year.  That affidavit sets out some of the history of this matter.

HER HONOUR:   Yes.

MR KNOWLES:   The remainder of the history of this matter is probably set out in the materials exhibited to the plaintiff’s affidavit which accompanied the application for an order to show cause.

HER HONOUR:   Yes.

MR KNOWLES:    I do not know if it will assist your Honour if I go through that history briefly.

HER HONOUR:   Well, by all means do so, because that can be ‑ ‑ ‑

MR KNOWLES:    Yes.  In this matter the Tribunal’s decision was dated 1 April 2003 and handed down on 28 April 2003.  Thereafter on 26 May 2003 there was an application for judicial review filed in the Federal Magistrates Court.  During that proceeding, the plaintiff was represented at all times, including at the hearing.  On 6 May 2004 Chief Federal Magistrate Bryant dismissed that application.  Then on 27 May 2004 the plaintiff filed an appeal from that decision to the Full Federal Court and at that initial stage of the appeal the plaintiff was unrepresented, but then an amended notice of appeal, it was sought that that be filed on 23 September 2004.  After that point, the plaintiff was represented in the appeal.  The appeal was ultimately dismissed on 4 August 2005.  Then that brings us to the present proceeding which was commenced in this Court on 7 September 2005.

HER HONOUR:   Yes.

MR KNOWLES:   Your Honour, in terms of the applicable time limits, the application in this Court is nearly two years out of time in relation to certiorari.  In relation to mandamus, it is over two years out of time.  It is submitted that there are no exceptional circumstances shown to explain or justify the delay.  The previous judicial review proceedings certainly do not constitute any proper explanation as to the delay in bringing proceedings

before this Court.  In those circumstances, your Honour, it is submitted that the application should be dismissed with costs.

HER HONOUR:   Yes, thank you.  I should get your name.

MR WEERAKOON:   My name is Weerakoon, your Honour.  I give my card.

HER HONOUR:   Thank you.  Yes.

MR WEERAKOON:   Yes, your Honour, as Mr Knowles has related to your Honour’s Court, this matter dates back to the decision of the Tribunal which dates back to 1 April 2003 and, as explained by him, he made an application to the Federal Magistrates Court on three grounds, but the Federal Magistrates Court gave its decision on the basis that he failed to establish that the Tribunal made its decision without jurisdiction, or that there was jurisdictional error on the part of the Tribunal. 

After the dismissal by the Federal Magistrates Court, as explained by Mr Knowles, he appealed to the Full Federal Court under 25(1A) of the Federal Court of Australia Act 1976, and where the three grounds stated in the notice of appeal were abandoned and they sought to amend the notice of appeal by including jurisdictional error, but the Full Federal Court did not allow this and dismissed the application. It was refused on the basis that it had no reasonable prospect of success.

The current application was made to this Court on 7 September, having exhausted all the other rights available to him under the law.  He sought legal advice from a barrister too and the advice is of a rather negative nature and I do not see any discernable basis to establish grounds for the grant of certiorari and mandamus, your Honour, in fairness to him, and I do not see any sustainable grounds to be developed for the relief that he is seeking.  In the circumstances, I have nothing more to ‑ ‑ ‑

HER HONOUR:   So there are really no sustainable grounds in relation to an extension of time?

MR WEERAKOON:   Well, of course, all that he can say is that he was pursuing other avenues, going before the Federal Magistrates Court and the Full Federal Court by way of notice of appeal, and as a result that took time and that deprived him from making an application to this Court, your Honour. That is the only ground we can develop in relation to the grant of extension of time for the grant of certiorari and mandamus. But, yes, he did not pursue his rights under the Constitution to come before this Court because he was pursuing other remedies before the Federal

Magistrates Court as well as before the Full Federal Court.  That is the only circumstances we can adduce, your Honour.

HER HONOUR:   Thank you.  Do you wish to say anything in reply, Mr Knowles?

MR KNOWLES:    No, your Honour.

HER HONOUR:   Thank you. 

On 7 September 2005 the plaintiff commenced a proceeding in the original jurisdiction of the Court seeking relief directed to a decision of the Refugee Review Tribunal made on 1 April 2003 and handed down on 28 April 2003. 

The plaintiff arrived in Australia on 17 June 1996.  He has made two applications for a protection visa since he arrived in this country.  This proceeding relates to a second application which was made on 27 February 2001.  A delegate of the Minister refused that application on 9 May 2001 and the plaintiff sought review of this decision by the Refugee Review Tribunal.  On 1 April 2003 the Tribunal affirmed the decision of the Minister not to grant the plaintiff a protection visa. 

After the Tribunal’s decision the plaintiff made an application for judicial review to the Federal Magistrates Court under section 39B of the Judiciary Act 1903 (Cth). That application was dismissed by the Federal Magistrates Court on 6 May 2003. The plaintiff appealed to the Federal Court of Australia and a Full Court made orders dismissing the appeal on 4 August 2004. Following that decision, the plaintiff commenced proceedings in this Court on 7 September 2005.

The Minister now applies for orders terminating these proceedings summarily.  The Minister submits that the application to this Court is made well beyond the times fixed by the Rules of Court for making application for certiorari and mandamus:  see rule 25.06.01 and 25.07.2.  The Minister argues that, having regard to the course of events described, no case is made for extending time within which certiorari or mandamus should be granted.  The Minister further submits that, unless certiorari or mandamus would be granted, neither prohibition nor injunction would lie.  It follows that the proceeding as a whole should now be held to fail. 

The availability of prohibition and injunction depends upon whether the impugned decision of the Tribunal is liable to be quashed by granting certiorari:  see Re Ruddock; Ex Parte Reyes (2000) 177 ALR 484 per Justice McHugh at paragraph [23]. This means the principle question in the present matter is whether any extension of time should be granted.

The time fixed by the Rules of Court as the times within which the application must be made for the grant of certiorari or mandamus are times which are fixed having regard to the fact that the writs which it is sought to have issued are directed at the acts or decisions of public bodies or officials.  As Justice McHugh remarked in Re Commonwealth; Ex Parte Marks (2000) 177 ALR 491 at 495, paragraph [15]:

‘the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.’

His Honour also said in that decision 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 case relief is sought 22 months out of time in the case of certiorari and 26 months out of time in the case of mandamus.  It may be that the expiration of so long a time is of itself sufficient reason to refuse extension of time, save in the more exceptional cases.  Mr Weerakoon represented the plaintiff, but no matters were advanced by him which raised any matters which would make this case an exceptional case. 

In this case, where the plaintiff has already resorted to the judicial power of the Commonwealth by making an application to the Federal Magistrates Court for relief of the same kind as he would seek from this Court in the current matter, and the proceedings in the Federal Magistrates Court have been prosecuted to a conclusion and, further, to a subsequent unsuccessful appeal to the Federal Court of Australia, no ground is shown for granting an extension of time within which the present application, insofar as it seeks certiorari or mandamus, might be brought.

Insofar as the plaintiff would seek other relief from this Court, in particular the issue of prohibition, the grant of that relief is premised upon the quashing of the decision made by the Tribunal.  Given that no case has been made out for extending the time within which application may be made for certiorari to quash the decision of the Tribunal, it would follow that the basis for the grant of any other relief cannot be established. 

In all the circumstances, the proceedings which the plaintiff has instituted must fail.  That being so, rather than remit them to another court for hearing and determination, it is better that they be brought to an end in this Court now.  Accordingly, I order that the proceedings stand dismissed with costs.

Nothing further?  Adjourn the Court.

AT 10.50 AM THE MATTER WAS CONCLUDED