MZWXM & Anor v MIAC & Anor

[2008] HCATrans 393

[2008] HCATrans 393

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M143 of 2007

B e t w e e n -

MZWXM

First Plaintiff

MZWXN

Second Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for an order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 20 NOVEMBER 2008, AT 10.03 AM

Copyright in the High Court of Australia

MR D.I. STAR:   Your Honour, I appear on behalf of the plaintiffs.  (instructed by Arnold Bloch Leibler)

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

HER HONOUR:   Yes, Mr Star.

MR STAR:   Your Honour would have appreciated that already detailed outlines of arguments have been filed by both parties.

HER HONOUR:   Yes, I have read those, thank you, and I was much assisted by them.

MR STAR:   The primary submission which the plaintiffs wish to put to your Honour at the commencement of the hearing today is that the Court should make orders remitting both this proceeding commenced by the plaintiffs, together with the first defendant’s summons, to the Federal Magistrates Court.

HER HONOUR:   How can that be done, given the delays involved, Mr Star?

MR STAR:   I have two responses to your Honour’s point.  One is to deal with issues of discretion as to whether or not the Court should remit the matter and the second matter is a matter of power – does the Court have power to do so.

HER HONOUR:   Yes.

MR STAR:   Perhaps to deal with the issue of power first, my submission to your Honour is that the Court does have a power to remit, in this case, if the Court was minded to do so as a matter of discretion. So there is not a lack of power to remit. The relevant provisions are set out in Part 8, Division 2 of the Migration Act.

HER HONOUR:   Yes, I have that.

MR STAR:   Indeed, the framework was set out by this Court in MZXOT v Minister (2008) 82 ALJR 1061. The parties did not provide that decision to the Court, but I can hand it up if it is of assistance because it sets out the ‑ ‑ ‑

HER HONOUR:   It will not be necessary, yes.

MR STAR:   But essentially, your Honour, section 476 of the Migration Act deals with the jurisdiction of the Federal Magistrates Court and relevantly subsection (1):

Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

Subsection (2) has various exceptions, none of which are presently applicable.

HER HONOUR:   Yes.

MR STAR:   There are definitions in subsection (4) but none of that is of any moment for the moment. Section 476A deals with the jurisdiction of the Federal Court. I do not rely upon that and that provision is ‑ ‑ ‑

HER HONOUR:   No, you are actually asking for a remitter to the Federal Magistrates Court.

MR STAR:   That is correct, your Honour.

HER HONOUR:   Yes.

MR STAR:   Section 476B deals with remittal by the High Court:

(1)Subject to subsection (3), the High Court must not remit a matter, or any part of a matter, that relates to a migration decision to any court other than the Federal Magistrates Court.

(2)The High Court must not remit a matter, or any part of a matter, that relates to a migration decision to the Federal Magistrates Court unless that court has jurisdiction in relation to the matter, or that part of the matter –

Now, I have taken your Honour already to section 476(1) to show your Honour that that court, that is the receiving court, the Federal Magistrates Court, would have jurisdiction. Indeed, the joint judgment of Justices Heydon, yourself and Justice Kiefel in MZXOT analysed the framework as showing that generally speaking the Federal Magistrates Court has the same jurisdiction as the High Court under section 75(v) other than the express exceptions and none of those express exceptions would apply in this particular case.

So, subject to any submissions from the first defendant or any queries that your Honour might have about power, there would be power to remit and then I would need to move to issues of discretion that this is an appropriate case for that power to be exercised.

HER HONOUR: What about section 477, which still forms part of the Migration Act?

MR STAR:   My submission to your Honour is that what is capable of remitter is the applications filed in this proceeding which are for an order nisi together with enlargements of time and then it will be a matter for the Federal Magistrates Court to hear those applications and whether or not to grant the extensions of time which would be permitted under the High Court Rules if the court was so minded.  To be sure, as a practical matter I understand that there have been many remitters of enlargements of time application to the Federal Magistrates Court or, when it was permitted, the Federal Court.

HER HONOUR:   Well, remitter is always on the basis that the rules in the remitting court apply in the receiving court, if I can put it that way.

MR STAR:   Yes.

HER HONOUR: So, in other words, the problems which might have arisen under section 477(2) and (3), had the application been initiated differently, will not preclude the Federal Magistrates Court dealing with the applications on the basis of applying the High Court Rules as to time.

MR STAR:   That is correct, your Honour, and what is sought by the plaintiffs is that if there is a remitter, it will be a preservation of all parties’ respective arguments, which are in the outlines of argument, but that the hearing and determination of them could be in the Federal Magistrates Court, including as a live issue whether or not there are sufficient exceptional circumstances for enlargements of time.

HER HONOUR: Yes, thank you. Can I ask you something next then about – unless you want to continue – substantive application and the exercise of discretion. I understand, of course, the background and know what happened on the special leave application in relation to a discrete application, but my understanding, and I want you to correct me if I am wrong, is that there were two lines of reasoning by which the Tribunal reached its decision and the first involved drawing adverse inferences from the facts which you now say should have been drawn to the plaintiffs’ attention under the provisions of sections 425(1) and 414(1).

So I understand that is the way the case is put, but the Tribunal had an alternative route to the same conclusion, an alternative line of reasoning, if you like, which did not involve depending on adverse inferences from the three facts which you have raised under section 425(1). It involved – the second line of reasoning – accepting the plaintiffs’ account in its entirety in relation to the collision and in relation to the subsequent court proceedings and, in that context, the Tribunal said, “Accepting everything the plaintiffs say about those two issues”, and I interpolate here that would involve accepting that the police report was not an exhaustive account, “I cannot find a connection between the Convention reasons for granting protection and these incidents”.

Now, I raise these matters now because it seems to me that that second line of reasoning, just as it has operated before, in a sense, to bar success in the context of the section 424A, is also a barrier or a problem in relation to the current application which is now put in this different setting. I wanted to give you an opportunity to assist me to understand why that second line of reasoning, as it were, would not operate so as to make it somewhat lacking in utility for me to accept your application for an extension of time even if I completely accept that you have an argument based on section 425(1). I hope I have made myself clear, Mr Star.

MR STAR:   You have, your Honour, and I will attempt to address it as directly as I can.

HER HONOUR:   Yes.

MR STAR:   What I would seek to persuade your Honour is that there is not as strict a dichotomy as your Honour has postulated between a first and second line of reasoning and I will take your Honour briefly to the Tribunal’s reasons to attempt to make good that proposition, but before I do that, I submit to your Honour that the context, of course, in which this matter is being heard by your Honour today is a context of a summary dismissal application.

The plaintiffs’ case for relief is not without its difficulties, but my submission to your Honour is that it is not so hopeless that it is doomed to fail.  I accept that on any basis I need to show the Court today that there is a credible, arguable case for jurisdictional error and that is the way it is put to your Honour.  I am not moving today, obviously, for final relief on the trial.  I am resisting an application for summary dismissal.

HER HONOUR:   Yes.

MR STAR:   Your Honour would have noted in the outline of argument filed for the plaintiffs we referred your Honour to the principles in Lindon and many other cases which talk about summary dismissal being a serious step, et cetera.  Of course, that is a very different context from, in particular, the special leave application in this proceeding where the criteria, of course, under section 35A of the Judiciary Act is a very different criteria and context from which the matter is to be heard today.  So if my submissions can be placed in that context.

Can I take your Honour to the Tribunal’s reasons to deal directly with the issue that your Honour has fairly raised with me.  Your Honour may find the reasons in a number of different places, but they form part of the ‑ ‑ ‑

HER HONOUR:   I do have them.

MR STAR:   If the Court pleases.  Relevantly, can I start by taking your Honour to paragraph 57 on page 15 of the Tribunal’s reasons, being the page numbering of the Tribunal?

HER HONOUR:   Yes, I have that.

MR STAR:   Paragraph 57 is dealing with the claim that the collision was a deliberate attempt upon the first plaintiff’s life and in the grounds in the application this has been given the shorthand expression “the collision claim”.

HER HONOUR:   Yes.

MR STAR:   If I take your Honour to – because I am going to do this briefly – the end of paragraph 57, reference is made when making adverse findings about the collision claim, at the end of paragraph 57:

Notably, the applicant raised the incident with the bus for the first time in the hearing before the Tribunal.  Had he truly believed this to have been an attempt on his life, I would have thought it to be a matter of such significance that he would have brought it to the attention of the Department at the time of his claim.

The contention for the plaintiffs is that the failure of the Tribunal to, at any time at the hearing or afterwards, raise with the plaintiffs the fact that this was not raised before the delegate or at an earlier stage in the Tribunal proceeding gives rise to an arguable jurisdictional error with respect to sections 414 or 425 along the reasoning of SZBEL ‑ ‑ ‑

HER HONOUR:   I assume that the police statement, which has been referred to in the third sentence there and about which you specifically complain in the context of section 425, was tendered by the first plaintiff appearing for himself on the basis that it was a genuine document in relation to the, what we will the collision claim.

MR STAR:   Yes, your Honour.

HER HONOUR:   How would you put it that a – and I have read it, of course.  It is clearly a short statement of the plaintiffs’ account of the collision – how would you expect the Tribunal, for example, to raise with the plaintiff in that context an issue which may doubt his credibility in relation to the statement that he gave?  I am just trying to see where the onus lies in this situation.  A document is tendered, a translation of the first plaintiff’s statement to the police, which the plaintiff wants the Tribunal to accept as a genuine account of his statement to the police.  Now, if it is a sanitised account, or if his account was different or if his own account varied from that account, would not the onus be on the plaintiff to raise that sort of issue with the Tribunal?

MR STAR:   I may not have made it clear enough, your Honour.  Certainly the statement was relied upon by the plaintiff but the plaintiff’s claim that the three‑wheeler accident was a deliberate attempt on his life was not limited to the statement handed to the Tribunal.

HER HONOUR:   No.

MR STAR:   There was evidence given in relation to that and the collision claim is dependent upon that and the criticism which the plaintiffs make is that the collision claim, which included the statement, but was not limited to the statement ‑ ‑ ‑

HER HONOUR:   I understand that.

MR STAR:   - - - that it is important to these reasons, and I am yet still to demonstrate this to your Honour, that the Tribunal form the view that “I will reject the collision claim in material respects and I will reject the court claim in material respects and part of the important reasons why I reject those two claims is because you never said it to the primary delegate and, indeed, the first time it has been raised is at the Tribunal’s hearing”.  The complaint which the plaintiffs seek to agitate is that that was an issue which is important to these reasons and the decision of the RRT and 425 and/or 414 would require the Tribunal to raise that as an issue with the plaintiffs and that has not occurred.

Subject to what my learned friend says, I expect it to be common ground that the Tribunal did not at the hearing or subsequently to the hearing ever raise with the plaintiffs why was not the court claim or the collision claim raised to the primary delegate or “I’m having doubts about this because it was not raised at an earlier time”, et cetera.

HER HONOUR:   Well, just on that issue, in the submissions of the first defendant, you may be able to assist me in relation to this – paragraph 18:

At the hearing, the Tribunal informed the applicant that, even if it accepted that the collision had occurred and that, in the course of litigation relating to the collision, he had been threatened, it was “having difficulty seeing any political opinion … that would connect you [the first plaintiff] with this harm or these threats –

So he is accepting the collision was a relevant harm, if you like, because, as I understand it, the plaintiff was contending it was a deliberate attempt on his life, so even accepting it was a harm, being a deliberate attempt on his life, and even accepting that he was threatened in relation to the court proceedings, which is, as I understand it, what we are calling the court claim, the Tribunal was having difficulty even accepting them, so accepting them in their entirety, relating them to a political connection – so the Tribunal was looking for a nexus with one of the reasons in the Refugees Convention for granting protection and was trying to, if you like, deal with these claims under whatever is the relevant heading in terms of the Convention reasons and – I mean, when you look at that, if that is right and you do not contest that, that that happened, in a sense the plaintiff was given an opportunity to give evidence or make submissions about what the connection was and that, of course, is the very point on which the final decision turns.

So I am having trouble just appreciating the difference the section – accepting, just for the sake of argument, that your section 425 arguments are credible and possible and arguable.  Let us go this far – accepting that there is a jurisdictional error identified by reference to section 425.

MR STAR:   If I proceed on that basis, your Honour, then the next paragraph in the Tribunal’s reasons dovetails perhaps with the first to fifth defendants’ submission because paragraph 58 is now dealing with Convention nexus.

HER HONOUR:   Yes.

MR STAR:   I place heavy reliance upon the first sentence of paragraph 58 and everything I say, your Honour, I am submitting is a full and fair reading of the Tribunal’s reasons.

HER HONOUR:   Yes, of course.

MR STAR:   Paragraph 58:

The credibility of the applicant’s reliance upon the collision as evidence of persecution is further diminished –

and I emphasise the words “further diminished” –

by his ambivalence in attributing a reason –

and then that goes on to deal with Convention nexus.  The submission which I wish to put to your Honour, particularly at this passage and I will continue to make, is that there is not a distinction between the claim about the incident and the reasons of the Tribunal about Convention nexus.  There is a rolling together and a linkage by the Tribunal when it is dealing with did the event as claimed occur and, secondly, why did it occur.

My submission to your Honour is that if your Honour accepts that, then if there is an arguable jurisdictional error in relation to whether or not the event occurred, then that jurisdictional error will carry through to the Tribunal’s reasoning about Convention nexus and therefore the submission I am making to your Honour is that it is not an independent strand because it is rolled up together. 

I submit that your Honour starts to see that from the first sentence in paragraph 58 because it is talking about the reliance on the collision being further diminished and it is linking, firstly, the claim – the claim was “This was a deliberate attempt on my life”, but in paragraph 57 the Tribunal was saying “No, it’s not a deliberate attempt on your life”.  It was an accident which occurred, that is what it was, and part of the reason why the Tribunal reaches the view that it was an accident and not a deliberate attempt on his life was, notably, as the Tribunal says, it was not raised earlier.

So, therefore, if there is a jurisdictional error or credible jurisdictional error argument, it carries through even when how the Tribunal was dealing with Convention nexus.  At the end of paragraph 58, the Tribunal certainly makes the adverse finding:

I am satisfied that the collision was wholly accidental and not attributable to any person who sought to harm the applicant –

Well, the reason why the Tribunal has formed the view that it was wholly accidental was partly and, in my submission, substantially or importantly dependent upon the raising of it for the first time at the Tribunal’s hearing.  You see in that last sentence of paragraph 58, in my submission, a rolling up of “did the event occur” and also issues of Convention nexus in such a way that they are not independent strands of one another.

I am moving on from those passages, but I would seek to make this point good by some other brief passages in the Tribunal’s reasons.  Paragraph 59 I can be brief on, but I do want to draw your Honour’s attention to the last sentence of paragraph 59.  Paragraph 59 is dealing with other claims.  It is dealing with claims in relation to the UNP.  But here again your Honour sees in the last sentence it was the failure for something to be raised earlier that was taken into account by the Tribunal.  But in respect of this separate claim in paragraph 59, the Tribunal states:

Although his failure to do so cannot be accorded great weight –

Now, this is not something we complain about, but I draw it to your Honour’s attention by way of contrast to the way in which in paragraph 57, about which we do complain, my bold submission to your Honour is that the Tribunal has given it great weight in paragraph 57.  In paragraph 59 it does not do so.  So I am contrasting ‑ ‑ ‑

HER HONOUR:   Paragraph 57 is where one finds the three facts, as you have put it in your application in this Court.  It is the third sentence and it is the timing in relation to first raising both the collision claim and the court claim about the threats.

MR STAR:   It is.  The court claim, your Honour, is in fact further developed – it is really addressed in paragraph 64.  Paragraph 57 is dealing with ‑ ‑ ‑

HER HONOUR:   The collision claim and the police report claim, if I can put it that way.

MR STAR:   It is.  Paragraph 64 is dealing with the court claim and if I take your Honour to that now, the opening sentence makes it plain what the Tribunal is saying:

Like the allegation concerning the bus collision, the claims arising in the context of these proceedings were raised for the first time in the hearing before the Tribunal. 

HER HONOUR:   Now, here in paragraph 5, what I will call the two strands of reasoning, because we have debated this, the Tribunal then is putting to one side, as I read it, what has been said in paragraph 64:

even were I to accept that the applicant had been threatened at court as he claimed, I am not able to discern in the evidence any connection between such threats –

and so on.

MR STAR:   Yes, your Honour, and 64 is dealing with the claim and 65 is dealing with Convention nexus but what I strongly rely upon in relation to 65, whatever 65 says about Convention nexus is restricted to the court claim and is not addressing the collision claim.  As I have spent some time on, paragraph 58 was dealing with the nexus in relation to the collision claim, so ‑ ‑ ‑

HER HONOUR:   So what you are pointing out about paragraph 58 involving rolled‑up findings, if you like, the position is different here in relation to the court claim?

MR STAR:   Yes, and the application complains about both the court claim and the collision claim, but certainly ‑ ‑ ‑

HER HONOUR:   But the stronger one is the collision claim and the police report aspect of the collision claim.

MR STAR:   It is and it is because of the reasoning in paragraphs 57 and 58 contrasted by 64 to 65.  I certainly complain about both, but my submission is stronger in relation to 57 and 58 because of, in particular, the first sentence of 58, which I have drawn your Honour’s attention to, and also the last sentence of 58.  If the first defendant’s submission about an independent basis is of merit, in my submission, it is of merit perhaps only in relation to the court claim.

HER HONOUR:   Maybe that all pitches up in this way, your section 425 claim, which you wish to advance, has this about it in relation to the collision claim, that there might be some – I do not have any concluded views but there might be some utility in permitting that to be advanced whereas in relation to the court claim there may be no utility in granting an extension of time.

MR STAR:   Yes.  I resist that proposition, your Honour, but the high‑water mark of the plaintiffs’ case is in relation to the collision claim.

HER HONOUR:   The collision claim.

MR STAR:   Having taken the Court to the reasons in some detail, can I briefly address it this way, your Honour.  What is common about the collision claim and the court claim is that they are important to the Tribunal’s reasons that it was not raised at an earlier time.  I contrasted that other paragraph to your Honour where the Tribunal says it was not of great weight that something was raised first at the Tribunal hearing, a separate claim.  In fact, the language of the Tribunal is that the lateness of the claim at the Tribunal’s hearing was important for the collision claim and the court claim.

Now, my submission to your Honour is that that inevitably flows through to the Convention nexus findings because adverse findings have been made about what the event is about which the Convention nexus is to be analysed.  That is why both are in the grounds.

HER HONOUR:   Are you suggesting that if an extension of time were granted, that the first plaintiffs would wish to give evidence about what they would have said to the Tribunal had section 425 and section 414 obligations been satisfied in relation – let us talk about the collision claim – in other words, I am trying to appreciate why the result would be different.

MR STAR:   Yes, and perhaps the outline did not make this clear enough.  The affidavit of the first plaintiff filed when the application was commenced includes in detail why it was that the collision claim and court claim were raised only at the Tribunal’s hearing.

HER HONOUR:   I understand that, and it is a delinquency, if you like, of a migration agent.  I understand that perfectly.  I mean, what is it that the first plaintiff would want to say?  What evidence is available?  It is sort of like a fresh evidence point, “Had I been on notice, this evidence would have been forthcoming”, or whatever.

MR STAR:   The first plaintiff’s affidavit, which clearly your Honour has read ‑ ‑ ‑

HER HONOUR:   Yes, I have.

MR STAR:   - - - about the allegations made ‑ ‑ ‑

HER HONOUR:   I do understand about the delinquency of the migration agent.

MR STAR:   Yes.  If this matter were remitted and if jurisdictional error was established and if this matter went back to the Refugee Review Tribunal, what ‑ ‑ ‑

HER HONOUR:   Yes, what would be done differently?

MR STAR:   Well, critically, two matters.  Firstly, an explanation would be given why it was that if these claims were raised at the hearing of this Tribunal matter, namely, the delinquency of the migration agent, and that would give the new tribunal the opportunity to make findings on the facts as to whether or not to accept that, and if it was accepted, not to hold it against the plaintiffs that it was raised at such a late stage.  That may assist the plaintiff’s claims, in particular, that the collision was a deliberate attempt on his life as opposed to wholly accidental, be believed.

HER HONOUR:   What about the police report?  What would be different about that?

MR STAR:   The police report is what it is, but it does not purport – and submissions can be made to a new tribunal about it – to be an exhaustive account of the events and the circumstances in which it was obtained and the like can be addressed.

HER HONOUR:   I suppose I do not understand, is there some evidence to be given in relation to the fact that the police report asserts no fact consistent with a deliberate attempt on the life of the first plaintiff?

MR STAR:   Well, it is not said in the Tribunal that it asserts facts inconsistent with it.  I am not sure that that is the other side of it.  But, your Honour, the point I am seeking to have understood is that if only the delinquency of the migration agent was accepted, if only that, that would assist the new tribunal to accept the claims made that this was a deliberate attempt on the first plaintiff’s life for the reasons put forward by the first plaintiff and that may be accepted.  What I have sought to demonstrate is that the lateness of those claims being raised at the Tribunal’s hearing were important to this decision and yet that, on my submission, was never raised with the plaintiffs and it is arguable – or your Honour has at least permitted me to assume for the purposes of this argument ‑ ‑ ‑

HER HONOUR:   Yes, for the purposes of this argument.  I should make it plain I had no concluded views about that at all.

MR STAR:   Of course.  But I am making submissions on an assumption that it is possible that this could be accepted to be jurisdictional error.  Now, accepting that assumption, there is the potential that if this matter was remitted to a new tribunal, that they would be successful in having their claims accepted because the explanation for the lateness of the claims may be accepted by the second tribunal and that will take away a significant and powerful basis used by this Tribunal to, firstly, not accept the events to have occurred as claimed and, on my rolling‑up submission, forming part of the Convention nexus analysis.

Now, I am conscious that your Honour has had the benefit of detailed written submissions and already I have been on my feet for some while, but I started off by saying of course we are in the context of not a special leave application or a final trial.  We are in the context of the plaintiffs attempting to resist a summary dismissal application and I ‑ ‑ ‑

HER HONOUR:   Yes, you have against you in the scales very significant delay and you would want to put on the other side of the scales an arguable point in relation to section 425.

MR STAR:   Yes.  Can I address your Honour then on the discretionary matters?

HER HONOUR:   Yes.

MR STAR:   Can I take your Honour to exhibit PJM‑8 to the first affidavit of Ms Mitchell filed on behalf of the first defendant.  That is the letter from the High Court Registry to the parties in the context of the special leave proceeding.  There are page numbers at the bottom, your Honour, and it does have a handwritten “45” on the bottom of my copy at least.

HER HONOUR:   Yes, I do not have it just yet, but bear with me.  What is the date of it?

MR STAR:   It is 30 May 2007, your Honour.

HER HONOUR:   Thank you.  What was the exhibit number again?

MR STAR:   PJM‑8.

HER HONOUR:   No, I have an affidavit where the exhibits start with 10 and are subsequent, so it must be earlier.

MR STAR:   It is an affidavit of Ms Mitchell sworn 11 November 2008 and it is ‑ ‑ ‑

HER HONOUR:   Is it in relation to the special leave proceeding?

MR STAR:   No, the affidavit is ‑ ‑ ‑

HER HONOUR:   In this proceeding?

MR STAR:   Yes, in support of the first defendant’s summons.  It is the affidavit with a large number of exhibits.

HER HONOUR:   Yes.  I now have that, Mr Star.

MR STAR:   Thank you, your Honour.  The reason why I am taking your Honour to this letter because in a practical way it explains why it was the grounds now relied upon, namely, sections 414 and 425, are contained in the new proceeding which was issued when it was issued in 30 November 2007.

HER HONOUR: Yes, because one argument against you, as I understand it, is counsel was appearing in relation to the special leave application and the section 425 point could have been raised together with the section 424A point. You are now, I take it, going to explain to me why that was not so.

MR STAR: Yes, your Honour. I was counsel appearing pro bono in the special leave application and myself and my instructing solicitors took on the matter essentially in response to this letter. This letter from the High Court Registry raised an issue, in particular – it is the collision claim in the second paragraph – in the context of section 424A.

HER HONOUR:   Yes.

MR STAR:   Firstly, without taking your Honour to all the affidavits which were filed by the respective parties yesterday, the evidence is that the plaintiffs have been litigants in person in the Federal Magistrates Court, in the Federal Court, in the High Court special leave until myself and my instructing solicitors came on board in response to this letter.

HER HONOUR:   Came in after this letter, yes.

MR STAR:   There is evidence that the reason why they were litigants in person, not surprisingly, was impecuniosity.  I can deal with that if my friend addresses your Honour in response on that, but, in my submission, that is what the evidence shows.

HER HONOUR:   I notice there were affidavits yesterday which seemed to be directed to some possible challenge in relation to ‑ ‑ ‑

MR STAR:   There was.

HER HONOUR:   - - - what was done which I presume went to the delay issue.

MR STAR:   Yes.  Two days ago there was an affidavit from the first plaintiff saying they were not represented before myself and Arnold Bloch Leibler were on the record because of impecuniosity.  An affidavit came in yesterday from the first defendant exhibiting letters written by the first defendant’s representatives at various stages to the plaintiffs giving the address for Legal Aid or the Law Institute or other pro bono services and then the first plaintiff put in yet another affidavit of an attempt to obtain pro bono legal services at one stage which came to nought.  So I do not think this application is going to depend upon that body of evidence, but a fair summary of it is that – well, it is without doubt they were litigants in person until this letter and ‑ ‑ ‑

HER HONOUR: Then in accordance with the letter you made submissions in relation to section 424A.

MR STAR:   Yes.  Now, these grounds could not have been raised in the special leave application and, indeed, that is why they were issued in a new proceeding.  They could not be raised in the special leave for two clear reasons and these are cited in the outline of argument filed with the Court yesterday.  Firstly, relying upon Crampton v The Queen (2001) 206 CLR 161, special leave would not be granted on new grounds which had not been argued at trial in only the most exceptional circumstances. Sections 414 and 425, they would be new grounds, 424A was not a new a ground. It is clear, even from the first defendant’s outline, that was dealt with briefly by the Federal Court and that caused the special leave and the High Court’s letter only dealt with 424A.

HER HONOUR:   Yes.

MR STAR: But, secondly, even if one was bold enough to seek special leave on grounds not dealt with in the courts below, there was the insurmountable issue that section 73 of the Constitution would not have authorised the court, if special leave was granted, to receive evidence relevant to determining those grounds, and that is Eastman v The Queen (2000) 203 CLR 1.

HER HONOUR:   What page of the submissions are you reading from now?  I am just trying to find that page.

MR STAR:   I am sorry, your Honour.  I think these are in footnotes to paragraph 12 of the plaintiffs’ outline. 

HER HONOUR:   I see.  Yes, I have found them. 

MR STAR:   Of course, to make good the arguments for jurisdictional error reliant upon 414 or 425, the plaintiff needs a body of evidence, firstly as to what occurred at the Tribunal’s hearing and annexed there is a transcript of that hearing which was never in the other proceedings when the plaintiffs were litigants in person and, secondly, as your Honour and I have already had an interchange about, there is a body of evidence about the delinquency of the migration agent.  So certainly for the grounds in this proceeding to be accepted and ventilated, there has to be reference to evidence which was not in the courts below.

HER HONOUR:   Yes.  If that is right, that is also a ground for remitter.

MR STAR:   Yes, very much so.  That evidence, and now, of course, there is ‑ ‑ ‑

HER HONOUR:   There will be evidence of cross‑examination in relation to the evidence, I expect.

MR STAR:   There is the potential for that.  I mean, typically, as your Honour is well aware, these matters still do proceed by submissions, but the parties have an opportunity to put in evidence and the parties have an opportunity, if they wish, to test each other’s evidence, but, my submission to your Honour is that these matters could not have been raised in the special leave matter and the new proceeding was issued simultaneously with the filing of material in the special leave matter and candidly on the special leave I attempted to inform the special leave judges of the existence of the other proceeding, but there was not ‑ ‑ ‑

HER HONOUR:   I think you said there were the same underlying complaints about the collision claim and the court claim.

MR STAR:   Yes, and they do involve the collision claim and the court claim, but there are very different arguments and, in my submission, the special leave application and the reasons given for refusing special leave are not to be read and were not intended to be read as to determine the separate proceeding ‑ ‑ ‑

HER HONOUR:   I accept that argument.

MR STAR:   Yes.  I have already addressed your Honour about the different criteria for special leave compared to what I am resisting today.

HER HONOUR:   If you succeed in getting an extension of time or a remitter in relation to both of your applications, you do not really have to deal with res judicata and issue estoppel and those other matters.

MR STAR:   That is right.  They are relied upon by the first defendant, so the plaintiffs were obliged to respond and the submission put to your Honour is that ‑ ‑ ‑

HER HONOUR:   I think it is res judicata, issue estoppel, Anshun estoppel and an abuse of process.

MR STAR:   And abuse of process.  I make the submissions made to your Honour in the written outline that even with all four of those categories, there is a live issue about whether or not they truly apply to the public law remedies which are sought.

HER HONOUR:   Yes.  Your primary position, in any event, is you could not ventilate the 425 arguments earlier and, as a matter of fact, did not ventilate them and this proceeding is the ‑ ‑ ‑

MR STAR:   Appropriate vehicle to do so.

HER HONOUR:   - - - vehicle in which you want to pursue or advance that particular case.

MR STAR:   Yes.  And without prejudicing the defendant’s opportunity if this matter were remitted, to have the matters struck out because of issue estoppel or abuse of process or issues of time, those issues ought to be fully ventilated in the most appropriate forum, being the Federal Magistrates Court.  Paragraph 16 of the plaintiffs’ outline attempts to address fully all the discretionary matters in the plaintiffs’ favour on issues of time.  There is an explanation for the delay, them being self‑represented.  There are special circumstances being the delinquency of the migration agent which takes this case out of the run of many other cases.  Reference is made to some authorities including, in particular, the passage from Justice Merkel in Somanader.  This is in 16(e) about the obvious importance of these proceedings to the plaintiffs. 

Indeed, all of those factors in paragraph 16 play out and are relevant to really all the grounds relied upon by the first defendant if your Honour takes abuse of process, for instance, which will necessarily involve discretionary matters.  Putting aside contentions about whether or not abuse of process applies, these are particular factors which the Court should have regard to so as not to summarily dismiss this particular proceeding in these particular circumstances on the basis of abuse of process.  Unless I can assist your Honour any further.

HER HONOUR:   No, you have been very helpful, Mr Star.  Thank you.  Mr Knowles, can I ask you why this matter should not be remitted?

MR KNOWLES:   Well, I should just say at the outset in response to that question, as my learned friend has identified, there are really two issues.  First is the power and then the second is the issue of discretion if the power does exist ‑ ‑ ‑

HER HONOUR:   I suppose my question was directed really to the second issue.  So what do you have to say about the first issue?

MR KNOWLES:   Yes.  Well, in respect of the first issue, I would say that, by and large, the first defendant agrees with the submissions that have been put by my learned friend, that is, that there is power ‑ ‑ ‑

HER HONOUR:   There is the power to remit.  The correct receiving court is the Federal Magistrates Court.

MR KNOWLES:   That is so, yes, your Honour.

HER HONOUR:   Once it is in the Federal Magistrates Court, the federal magistrate hearing the matter would then look to the High Court Rules in relation to any relevant issue of process that arises.

MR KNOWLES:   Yes, your Honour, insofar as the matters that remained outstanding.  It would really depend on the directions that the Court made and any orders remitting the matter back to the Federal Magistrates Court.  In the past, I understand that there had been orders made whereby it is said in terms of matters that have been commenced here but not concluded, those matters such as the application for an extension of time or an application for summary dismissal would be dealt with in the Federal Magistrates Court in accordance with the High Court Rules which governed them at the outset.

HER HONOUR:   Yes, that is what I was intending to convey.  One possibility would be to grant an extension of time now on this application, but to reserve your position in relation to your application for summary dismissal.  That would be one possibility. 

MR KNOWLES:   Yes.

HER HONOUR:   Well, I suppose there are three possibilities.  One is to grant no applications and simply remit the matter.  Since there has been opportunity for detailed argument, that would seem to me to be a little wasteful in relation to costs.  Another possibility is to grant the application for an extension of time, but to reserve your position about discretionary matters, particularly since there is a contested issue of fact which goes to discretionary matters – summary dismissal I am talking about now – in relation to whether – well, I take it you are raising an issue about whether the first plaintiff did enough in relation to seeking advice in relation to complex legal issues and so forth.

MR KNOWLES:   Yes, that is certainly part of the case put by the first defendant.

HER HONOUR:   So that is part of that case.  So, on one view, as long as everything was reserved in relation to your position, other than the extension of time issues, there would be no other prejudice I could identify flowing from dealing with the matter in that way, unless you wanted to address me on the basis that it would be preferable in terms of your position for the extension of time to be dealt with at the same time as the summary dismissal application is dealt with because of the rolled up nature of the issues.

MR KNOWLES:   Yes, and it does seem to me ‑ ‑ ‑

HER HONOUR:   What I am concerned is, if I am minded to remit, I am concerned, if I can to save the costs of what has been done today to the extent that I can without prejudicing the first defendant’s position in any way.

MR KNOWLES:   That is a concern in the sense that they are interrelated.  The summary dismissal application is related to the extension of time application and, arguably, to grant one might bear upon the other.  The first defendant’s preference, as is no doubt apparent to your Honour, is to have the matter dealt with today in relation to both the extension of time application and the summary dismissal application.

HER HONOUR:   The trouble I think, Mr Knowles, is if one accepts that there is an argument available, without at all going into whether it is a good argument or a bad argument, but there is an argument available in relation to section 425, which is all one can do for the purposes of an extension of time and a summary dismissal application, so one accepts there is an argument available and then accepts that there is an argument available that the final conclusion of the Tribunal was affected by the very matters that are sought to be raised in the section 425 context, there would be a potential for real unfairness if one dealt with the matter by way of summary dismissal.

MR KNOWLES:   I understand your Honour’s point.

HER HONOUR:   In other words, I have in mind those cases which say, look, when you are looking at delay – and this is a significant delay, I accept that completely and, indeed, I think Mr Star would have to accept that – when you are looking at significant delay, if it is apparent that the new proceedings will be futile or doomed to fail, fall into any of those categories, that is one thing, but if you cannot be satisfied at that interlocutory stage to the requisite level about those matters, the better course, surely, is to grant the extension of time and allow the matter to be dealt with on its merits.  I mean, it may ultimately ‑ ‑ ‑

MR KNOWLES:   I understand your Honour’s point.  Even if an argument may not be on its face a good one ‑ ‑ ‑

HER HONOUR:   It may fail, but it is fairer for the plaintiffs to be able to ventilate it once you accept Mr Star’s account of why it could not be raised earlier.

MR KNOWLES:   There are just a couple of very minor points I would seek to put in relation to that.

HER HONOUR:   Yes, certainly.

MR KNOWLES:   Obviously, as your Honour has already alluded to, there is the issue of the delay and it is considerable.  In terms of the basis for the delay, it does seem to rest with the previous judicial review proceedings which were brought.  My learned friend did take your Honour to the fact that in the High Court, in the special leave proceedings, it was only then that the plaintiffs were actually represented.  Obviously there is some degree of contention between the parties about, firstly, the relevance of whether or not they were necessarily represented, but, secondly, the ability on their part to have obtained some representation at that time, whatever attempts that they may have made.

In that regard also there has been reference in the submissions to the fact that the argument, which the plaintiffs seek now to put in relation to section 425, was one which was really pointed out by the High Court in its decision in SZBEL.  The response of the first defendant to that is that at that time the High Court was really just pointing out the law as it had always been insofar as that particular provision in that form and so that, in the first defendant’s submission, does not constitute an adequate explanation for the delay.

HER HONOUR:   I suppose when you are considering dates and self‑representation of particular dates and so on, it is some explanation of why events have panned out as they have.  I mean, the other regrettable and special feature about this case is the delinquency of the migration agent which was, so far as I understand from the material before me, a grave delinquency.

MR KNOWLES:   Yes, and there is some evidence ‑ ‑ ‑

HER HONOUR:   No one is to blame in relation to that in terms of the parties to the new proceedings.

MR KNOWLES:   Aside from the delay and the previous challenges to the Tribunal’s decision – and I should just say in relation to that, there is a decision of Justice Hayne which is referred to in the plaintiffs’ outline of submissions and is also in the folder of authorities at tab 6.  I do not know whether your Honour has that folder of authorities which has conveniently been provided by the plaintiffs’ representatives.  On page 5 Justice Hayne there refused to extend time and particularly I take your Honour to lines 160 to 165 where his Honour says:

the application for certiorari and mandamus is first made well out of time but following previous unsuccessful resort to the judicial power of the Commonwealth seeking relief of a kind not substantially different from that which the applicant would now seek, the discretion to extend the time should not be exercised in the plaintiff’s favour.

His Honour says something similar at lines 172 through to 177 in concluding that the application ought to be dismissed with costs. This is a case in which there have been previous unsuccessful attempts seeking relief of a kind not substantially different from that which the applicant would now seek. Admittedly the grounds upon which that relief was sought then are somewhat different and in the case of a special leave application, despite having a similar underlying factual issue – relate to a different statutory context in the sense of sections 414 and 425 as distinct from section 424A. But that, in my submission, is a relevant expression of opinion about these matters insofar as there has been a considerable delay and previous unsuccessful attempts to obtain the relief which was sought in the present proceeding.

Beyond that, there is also the issue of the actual prospects of success and your Honour and my learned friend have already addressed this matter in some detail and my learned friend took your Honour to various passages in the Tribunal’s decision.  It is submitted by the first defendant that when one goes to the Tribunal’s decision and the Tribunal’s decision is read fairly and as a whole, that there are two separate strands of reasoning.  In that regard there are the two particular issues, the collision and court proceeding claims.

HER HONOUR:   Yes, and I think in debates I had with Mr Star he was willing to accept – I hope I am not misrepresenting him here – that the point he was making about the rolled‑up reasoning was a stronger point in the context of the collision claim than the court claim.  I would certainly accept from you that there were two rather distinct lines of reasoning demonstrated in paragraphs 64 and 65.  I have been thinking about that during the course of the morning and it would seem to me not to be appropriate to remit only part of this matter.  I think that might involve unfairness to the plaintiffs.

MR KNOWLES:   The first defendant would not propose that that occur and that really is a matter, if it were to be remitted, to be addressed in totality and the court to which the matter is remitted, the Federal Magistrates Court, could deal with each of those matters on their individual merits.

HER HONOUR:   On their merits, yes.  I mean, it is conceivable that there is a win on one matter and a loss on the other, as it were.  However that translates into a final result is not something we need to think about.  I am grateful for that indication that you would not expect some distinction to be made at this stage, even though I accept, as I think Mr Star is also driven to accept, that there are differences in the merits in relation to that two lines of reasoning argument.

MR KNOWLES:   In some ways, one of the reasons why I said what I just said about the two matters is that the collision and court claims are actually quite interlinked as well in a factual sense.

HER HONOUR:   Yes.  Of course the court is subsequent to the collision.  It is all related.

MR KNOWLES:   It relates to the collision, and that is part of the reason why, in my submission, this issue about Convention nexus was being treated in paragraph 65 of the Tribunal’s reasons in a way that was quite overarching and not just dealing necessarily with the court claim, but also the events that led to it, including the collision.  In that regard, if I can take you to the affidavit of Mr Thompson and, in particular, to exhibit AGT‑1.   That is the transcript of the Tribunal hearing that was prepared.

HER HONOUR:   Yes, I have read that.

MR KNOWLES:   As your Honour will have noted from the first defendant’s submissions – and I just noticed this morning that they are titled “the first respondent’s submissions”.  That should be the first defendant’s submissions.

HER HONOUR:   Yes.  I have treated them as the first defendant’s submissions.  Yes, I have Mr Thompson’s affidavit.

MR KNOWLES:   Yes, that transcript, as your Honour will have noted in the first defendant’s written submissions, is not a document with which the first defendant takes issue for the purposes of today’s proceedings.

HER HONOUR:   Yes, I see.

MR KNOWLES:   If the matter is not dealt with summarily today ‑ ‑ ‑

HER HONOUR:   It was, in a sense, a discretionary point, was it not, the point you made in your written submissions arising out of the transcript?

MR KNOWLES:   Yes, that is right.  Your Honour asked my learned friend about what was said in the written submissions about this issue of what was put at the hearing concerning the Convention nexus.  In the submissions there is reference to page 33 of that transcript.  Does your Honour have that page to hand?

HER HONOUR:   Yes.

MR KNOWLES:   Does your Honour see that?  It starts with “PH” at the top of the page.

HER HONOUR:   Yes, I see that.

MR KNOWLES:   The first paragraph involves the Tribunal member putting to the first plaintiff its concerns about what has happened and how it might be connected with one of the reasons in the Convention.  Towards the bottom of the page ‑ ‑ ‑

HER HONOUR:   I think I put part of that to Mr Star this morning from page 33.

MR KNOWLES:   Yes, that is right.  That is the “I’m having difficulty seeing any political opinion of yours that would connect you with this harm or these threats”.

HER HONOUR:   Yes.  Without wanting to interrupt your flow, this rather demonstrates why, if an extension is granted, this matter needs to be remitted, because evidence will need to be taken into account of a fairly significant kind, I think, without saying any more.

MR KNOWLES:   Yes.  Insofar as the evidence is before your Honour at the present time, there is no issue taken about this being accurate, but it really, in my submission, demonstrates that the issue of nexus, including the nexus relating to the bus driver crashing into the three‑wheeler, that is raised and it is raised expressly at the bottom of the page at around line 28 or so.

HER HONOUR:   It may.  I mean, I can accept the possibility that this may mean a case based on section 425 fails.  That is a possibility.

MR KNOWLES:   Yes.  I understand your Honour’s point.  That does not equate with a certainty that the case will fail and that is what stands in the way of an application for summary dismissal.

HER HONOUR:   These sorts of applications involve a multiplicity of issues, as you know, Mr Knowles, because I have seen you in many of them, and it is a balancing exercise sometimes.

MR KNOWLES:   Yes, indeed, your Honour.

HER HONOUR:   I mean, that is the reason why there are dicta to the effect that even with significant delays, if you have a special aspect to the case – and I do not think there is any disagreement among the three of us that the delinquency of the agent is a somewhat special aspect – you, at the end of the day, are facing a balancing exercise.

MR KNOWLES:   Yes, indeed.  The only other thing I would say is that in relation to the Tribunal’s decision, your Honour – and I had mentioned paragraph 65 – the submission made is that paragraph 65 actually relates to both issues insofar as it is concerned with the court proceedings that inevitably flow from the collision.  The Tribunal accepted that there had been a collision.  What it did not accept obviously was that there was ‑ ‑ ‑

HER HONOUR:   An attempt to kill.

MR KNOWLES:   - - - a deliberate attempt on the first plaintiff’s life which manifested itself in the collision and the first defendant’s argument is that paragraphs 57 and 58 are actually separate.  The first paragraph goes to the adequacy of the evidence that has been put.  So it is about this police report not referring to anything that would suggest that there was a deliberate attempt on his life.

HER HONOUR:   Well, you can see, I suppose, the process of inferences being drawn in paragraph 57.

MR KNOWLES:   Indeed, yes, and that comes right down to the point of the apparent, at least to the Tribunal, failure of the first plaintiff to provide the material at an earlier stage.  Paragraph 58, though, relates to what is said about the reasons for the actual attempt on life.  So the first is, was it an attempt on life?  No.  The Tribunal says right at the outset in paragraph 57 “I reject this assertion”.  So the Tribunal has rejected that it was a deliberate attempt.  It then goes on to say, “I am further bolstered in that view by virtue of the fact that the first plaintiff’s evidence as to the reason why there might have been a deliberate attempt, which I have already rejected, but why there might have been a deliberate attempt was confused as to what motivation might have been behind the acts of the person driving the bus or who directed the person driving the bus”.

That is the first point that I would make about paragraphs 57 and 58.  The second point, though, relates to paragraph 65 and that is that paragraph 65 is, in my submission, a very strong futility argument and does rise to the relevant level.  Paragraph 65, and the preceding paragraph, paragraph 64, in some ways, when one looks at the Tribunal decision as a whole, were intended to mirror the earlier findings of the Tribunal, because in paragraph 64 the Tribunal says:

Like the allegation concerning the bus collision –

So it is adopting a similar approach to that in the bus collision –

the claims arising in the context of these legal proceedings were raised for the first time in the hearing –

So that is a problem.  But then there is a separate and completely independent problem which faces the applicant and that is the problem of the absence of a nexus with the Convention, and that is set out in 65.  In my submission, 65 and 64 represent reasoning which ultimately was that employed by the Tribunal back at 57 and 58.  But even if that were not so, paragraph 65 relates to the motivation for events associated with the court case.  The court case could not have happened but for the collision and, therefore, this really deals with the motivation also for the events associated with the collision.  Otherwise, your Honour, obviously the first defendant refers to and relies upon what is set out in the written submissions.

HER HONOUR:   Yes, which I can say I found very helpful, Mr Knowles.

MR KNOWLES:   Unless there is anything I can assist your Honour with further, there is only one other thing that I would say and that is that from the first defendant’s perspective, while this has been a fruitful morning, if the matter is to be remitted, the first defendant would seek that the application for extension of time be remitted with any summary dismissal application because they are ultimately bound up together and there would not need to be preparation of significantly new or additional material, but it does seem that they are intrinsically linked.  There is a concern on the first defendant’s part that any submissions made in respect of the summary dismissal application, at least insofar as they related to delay, might be somewhat blunted if the application for an extension of time were to be determined now.

HER HONOUR:   Yes, I see that.

MR KNOWLES:   I say that without prejudice to what might actually happen in any application for an extension of time whether it is decided now or later, but that is the only position I can say about if the matter is not to be summarily dismissed.

HER HONOUR:   Well, in a sense, what you are identifying is a possible prejudice if they are split and I can see the point of what you are saying.

MR KNOWLES:   Indeed.  I am mindful of your Honour’s comments about the useful use of this Court’s, in particular, time and, nonetheless, I also have that concern in respect of advancing any case if the matter were to be remitted before the Federal Magistrates Court.  Unless there is anything I can assist your Honour with further, there are no further submissions for the first defendant.

HER HONOUR:   No, thank you.  I am interested in that final point, Mr Star, because, as I understood it anyway, your primary position was remit everything and, having been persuaded that it is an appropriate matter to remit, I am very loath to, in any way, prejudice the first defendant’s position and, I think, inevitably the application for the extension of time, the application for summary dismissal raise very intertwined issues, even if the test applied is different and there may be some point in doing that.  I have not formed a concluded view.  I invite you to address me on it.  For example, there is this late issue about delay and legal representation and all the rest of it which, in a sense, surfaced yesterday.  Do you wish to urge one view rather than another?  I was concerned about costs, but I suppose, at the end of the day, since I think it would be premature to deal with the summary dismissal issues and am firmly of that view, I can see the point of Mr Knowles’ submissions.

MR STAR:   The submission I would put to your Honour is, having heard what your Honour said to me earlier about one potential being to grant the extension of time and reserve the parties’ position on everything else, in my submission, while it is a matter for your Honour, I see that that is probably the most efficient and appropriate disposition.  An order crafted by your Honour or at first instance my learned friend and I attempt to draft could expressly make clear what has been granted and what is still left and the reality is your Honour has had to hear an argument which orally has taken some time and in writing has taken some time and rather than that further aspect of it having to be gone through yet again, that is the preferable course, but ultimately your Honour has to do what your Honour regards as fair to all parties, but certainly, having heard that suggestion from the Bench, in my own submission, an appropriate order can be drafted which grants the extension of time and otherwise expressly reserves the first defendant’s position in all other respects.

Certainly the plaintiffs would like to avoid, if the matter is remitted, that there are avoidable arguments about which rules apply, et cetera, and the like, which there have been, of course, too many proceedings in other cases about.  I am confining my reply at this stage to that one point and not the matters of summary dismissal, unless your Honour would be assisted by me dealing with those.

HER HONOUR:   No, I have already indicated that they will be reserved.  You may sit down.  I will just take a moment, if I may.

MR STAR:   Thank you, your Honour.

HER HONOUR:   On 30 November 2007, the plaintiffs, Sri Lankan nationals who are husband and wife, filed an application for orders to show cause seeking writs of certiorari and mandamus, or alternatively remitter, and an extension of time.  On 12 November 2008, the first defendant filed a summons seeking various orders directed to summary dismissal of the plaintiffs’ application.  The proceedings concern a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 December 2004 affirming a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing the plaintiffs Protection (Class XA) Visas.

The plaintiffs arrived in Australia on 22 July 2003. They lodged applications for Protection (Class XA) Visas on 14 August 2003. Criteria for the grant of such visas is set out in section 36(2) of the Migration Act 1958 (Cth) (“the Act”), though there are also additional criteria. The first plaintiff’s application was based on satisfying section 36(2)(a), that he was a non‑citizen in respect of whom Australia has protection obligations under the Refugees Convention, while the second plaintiff made her application as the spouse of the first plaintiff under section 36(2)(b). The second plaintiff advanced no independent claim to protection obligations under the Refugees Convention.

The plaintiffs were assisted in their visa applications by Mr Nihal Gunatilake, a registered migration agent.  Among other things, according to affidavit evidence given by the first plaintiff in this Court, at the plaintiffs’ first meeting with Mr Gunatilake on 30 July 2003, the first plaintiff told Mr Gunatilake that on 18 January 2000 a passenger bus collided with the first plaintiff’s vehicle in Sri Lanka.  The first plaintiff deposes that he told Mr Gunatilake that he was seriously injured in the accident and a passenger in the vehicle was killed.  He deposes that he told Mr Gunatilake that he believed this was an attempt on his life in a vehicle collision organised by individuals who had harassed him after his son‑in‑law, of Tamil ethnicity, had left Sri Lanka, seeking information as to the son‑in‑law’s whereabouts, and as well because of his own political affiliations (“the collision claim”).  The first plaintiff also deposes that he told Mr Gunatilake about death threats he received while attending the subsequent court proceedings arising from the collision (“the court claim”).  Finally, the first plaintiff deposes that Mr Gunatilake advised him not to include these matters in his visa application.  They were not included in the application.

On 20 November 2003, a delegate of the Minister refused the plaintiffs’ visa applications.  They lodged an application for review by the Tribunal on 19 December 2003.  By letter dated 11 July 2004, the Tribunal informed the plaintiffs that it had considered the material before it in relation to the applications, but was unable to make a decision in the plaintiffs’ favour on this information alone.  The Tribunal invited the plaintiffs to a hearing and to provide to the Tribunal any new documents or written arguments they wanted the Tribunal to consider.  The first plaintiff deposes in this Court that having regard to the Tribunal’s letter he insisted to Mr Gunatilake that the information about the collision claim and the court claim be submitted to the Tribunal.  He obtained a Sri Lankan police report about the collision and an English translation, to be submitted to the Tribunal.  At a hearing on 1 December 2004, Mr Gunatilake submitted the additional information to the Tribunal. 

On 10 December 2004, the Tribunal affirmed the decision of the Minister’s delegate not to grant protection visas.  The Tribunal considered that the failure of the first plaintiff to bring to the attention of the Department information as to the collision claim and the court claim at the time he originally made the visa applications in Australia tended against the conclusion that the first plaintiff truly believed the collision to be an attempt on his life and the conclusion that the plaintiff truly received death threats in connection with the court proceedings.

On 1 February 2005, the plaintiffs filed an application for judicial review of the decision of the Tribunal in the Federal Magistrates Court of Australia.  The plaintiffs were unrepresented.  On 15 November 2005, Connolly FM dismissed the application with costs:  MZWXM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1670.

On 2 December 2005, the plaintiffs filed a notice of appeal in the Federal Court of Australia from the whole of the judgment of Connolly FM.  Again, the plaintiffs were unrepresented.  On 27 September 2006, Tracey J dismissed the appeal with costs:  MZWXM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1248.

During the course of the hearing, counsel for the Minister, as respondent to the appeal, drew attention to the possibility that though the argument had not been raised by the plaintiffs in the Federal Magistrates Court or in the Federal Court, the decision of the Tribunal might be impugned on the ground that before the Tribunal drew any adverse inference from the fact that the information relating to the collision claim and the court claim had not been relied on previously, the Tribunal should first have alerted the first plaintiff to such adverse inferences. Section 424A of the Act required the Tribunal to give to the applicant for a protection visa particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review and invite the applicant to comment on it. Tracey J considered that had such an argument been advanced by the plaintiffs it was bound to fail because the Tribunal’s evaluation of the evidence did not constitute information for the purposes of section 424A of the Act and also because the Tribunal’s rejection of the claim was founded on considerations additional to the adverse inference which, standing alone, would have supported the Tribunal’s conclusion.

On 16 October 2006, the plaintiffs filed an application for special leave to appeal from the whole of the judgment of Tracey J in this Court. The plaintiffs were unrepresented and their case was considered as a written case without it first being served on the respondent Minister, pursuant to rule 41.10 of the High Court Rules 2004. On 30 May 2007, this Court wrote to the plaintiffs directing them to serve a copy of the written case and draft notice of appeal on the respondent Minister and the Registry sought to arrange for counsel to appear on the plaintiffs’ behalf on a pro bono basis. That was the circumstance in which Mr Star, currently appearing for the plaintiffs, received their instructions. The letter specifically directed the plaintiffs’ attention to the issue relating to section 424A noted earlier. A copy of the letter was sent to the solicitors for the respondent Minister. On 30 November 2007, the plaintiffs, now represented, filed an amended draft notice of appeal in the special leave application directed to the issue relating to section 424A of the Act.

The plaintiffs also filed, at the same time, the present applications which were adjourned pending determination of the special leave application.

On 23 May 2008, Heydon and Kiefel JJ of this Court heard oral argument from counsel for the plaintiffs in the special leave application and ordered that it be dismissed with costs:  MZWXM v Minister for Immigration and Multicultural and Indigenous Affairs [2008] HCATrans 215. Their Honours concluded that even if the section 424A issue were resolved in favour of the plaintiffs in any appeal, that would not be decisive of the appeal because the collision claim and the court claim were found by the Tribunal not to be Convention related.

The present application was listed for hearing on 18 September 2008, but that date was vacated by consent.  On 12 November 2008, the first defendant filed a summons for orders:  that the application for writs of mandamus and certiorari be refused on the basis that they have been made outside the time limit prescribed by rules 25.07.2 and 25.06.1 of the High Court Rules respectively; the application for enlargement of time be refused; the application for writs of mandamus and certiorari be refused on the basis that the plaintiffs cannot establish the arguable case necessary for the grant of the writs because the doctrines of res judicata and/or issue estoppel and/or Anshun estoppel preclude the plaintiffs from raising any of the grounds of judicial review upon which they seek to rely in support of the application; and for refusal of the application for writs of mandamus and certiorari on the basis that the application is an abuse of process.

The plaintiffs today essentially contend that the Tribunal breached a duty under section 425(1) of the Act to hear from the first plaintiff and failed to conduct a review of the decision of the Minister’s delegate within the meaning of section 414(1) of the Act because the Tribunal did not, at any time, raise with the first plaintiff, or otherwise draw to his attention, that the issues arising in relation to the decision under review included the facts that: (1) the abovementioned police report does not include or assert facts consistent with the collision claim; (2) the collision claim had not been raised earlier with the Minister’s delegate; and (3) the court claim had not been raised by the plaintiffs prior to the hearing before the Tribunal.

The plaintiffs’ applications for writs of mandamus and certiorari in respect of the Tribunal’s decision are respectively 32 and 28 months out of time:  High Court Rules 25.06.1, 25.07.2.  The availability of an injunction depends upon 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 plaintiffs therefore require an enlargement of time. There is a general power to enlarge time in rule 4.02 of the High Court Rules.

In Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470 at 474 [15] McHugh J pointed out that in cases of this type the public interest is engaged because the relief which is sought is 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. His Honour then said (at 474 [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.

Factors relevant to an application to extend time include not only the length of the delay and the reasons for it, but also the strength or weakness of the case now sought to be advanced, the utility of advancing that case and any special circumstances in relation to previous delay in advancing that case.

The plaintiffs have already had recourse to the judicial power of the Commonwealth in respect of the decision of the Tribunal in their application to the Federal Magistrates Court, the appeal from that decision to the Federal Court and their application to this Court for special leave to appeal from the Federal Court. The complaint about the collision claim and the court claim now raised in the context of section 414(1) and section 425(1) of the Act is the same complaint underlying the previously unsuccessful application to raise the same matters in the context of section 424A of the Act.

However, this matter involves a very special circumstance and that is that adverse inferences drawn against the plaintiffs before the Tribunal were linked with delinquent conduct by the migration agent then assisting the plaintiffs. After hearing extensive and able submissions from both Mr Star for the plaintiffs and from Mr Knowles for the first defendant I am persuaded that this is an appropriate matter for the grant of an extension of time as sought. This is because the plaintiffs have raised an arguable case of jurisdictional error based on section 425(1) and section 414(1) of the Act and the reasons why this was not raised earlier have been fully explained.

It is agreed between counsel that if an extension of time is granted, this matter is an appropriate matter to be remitted to the Federal Magistrates Court.  I would reserve the first defendant’s application for summary dismissal for disposition in the Federal Magistrates Court.  I ask counsel to prepare short minutes reflecting these conclusions. 

Now, I am taking up your invitation, Mr Star, to ensure the complete preservation of the position of the first defendant in relation to the summary dismissal application and it seems appropriate, anyway, Mr Knowles, for both you and Mr Star to prepare short minutes and there is no time pressure about them.  They can obviously be done during the course of the day and perhaps be submitted on the basis that they are an agreed set of short minutes which will not require further attendance.

MR STAR:   Yes, if the Court pleases.

HER HONOUR:   I should indicate that costs should follow today’s applications, should they not, and otherwise be costs in the application?  Perhaps you two could consider that matter, because there is a formula generally followed, and if you cannot agree I would have to hear from you.

MR STAR:   Yes, your Honour.  I was about to make an application for costs in respect of what your Honour had determined so that the first defendant would pay the plaintiffs’ costs of the extension of time element because your Honour has determined that, but reserve all other costs.  That is the application which I would make to your Honour.

HER HONOUR:   Yes.

MR STAR:   Obviously my learned friend can address your Honour and it can be reflected in the orders as your Honour orders.

HER HONOUR:   Yes, all right.  Yes, Mr Knowles.  Some order for costs be made today, just reflecting the event.

MR KNOWLES:   Yes.  The first defendant opposes that proposed course of action.  The application for an extension of time, in my submission, is an application for an indulgence from the Court and, on that basis, as a matter of principle, it is not necessarily a case that costs will follow a successful application where one is seeking an indulgence of that nature.  In my submission, the appropriate costs order is that costs of the proceeding to date would be measured on the appropriate High Court scale and then ‑ ‑ ‑

HER HONOUR:   They would be costs in the application ultimately, would they not?

MR KNOWLES:   Indeed, yes, your Honour, and then going forward, any proceedings before the Federal Magistrates Court would be determined by the Federal Magistrates Court in accordance with its rules, but again, in terms of what has happened thus far and in terms of today’s proceedings, it is submitted that they ought to be costs in the application.

MR STAR:   Your Honour, I do not want to trouble your Honour too much longer on costs.  The only other relevant point which I would bring to your Honour’s attention is that on 17 November 2008, this week, a letter was written by my instructing solicitors to the first defendant’s solicitors, and I can hand up a copy.

HER HONOUR:   Yes, perhaps you had better do that rather than waiting for me to find it.

MR STAR:   Yes.  I have a faxed confirmation sheet which your Honour has and there was a letter proposing that orders by consent for remittal of the matter and no consent was forthcoming.  That is what your Honour is ordering and your Honour is also granting the enlargement of time.  In those circumstances, there should be an order for costs, given the extensive argument about remittal.

HER HONOUR:   Yes, just give me an opportunity to have a good look at this.  Mr Knowles, have you had a chance to have a look at this? 

MR KNOWLES:   Yes.  In relation to this issue ‑ ‑ ‑

HER HONOUR:   We do not want to have too arid a debate about all of this.

MR KNOWLES:   No, your Honour.  The concern is that this has been raised on 17 November in this correspondence.  The matter has been on foot for some considerable time.  Such an application – by this stage, by 17 November, I had actually been briefed by that time and by that stage the parties were preparing various items of affidavit material and so on.  The matter was well on foot for today and in relation – sorry, your Honour, I am just actually taking a moment to read through the contents of the actual ‑ ‑ ‑

HER HONOUR:   No, that is perfectly all right.

MR KNOWLES:   Yes. 

HER HONOUR:   The gist of it, in a sense, is that there has been a partial success today.  I mean, one possibility is to make no order as to costs in relation to the extension of time application and to otherwise order that the costs of the proceedings to date be costs in the application generally.

MR KNOWLES:   There is that difficulty, perhaps highlighted by my earlier submission in relation to the interlinking between the extension of time application and the ‑ ‑ ‑

HER HONOUR:   The main reason for the extension of time, in a sense, is the delinquency in relation to the migration agents which cannot impinge too much on the reservation of your position in relation to summary dismissal.  So that is a reason, as far as I can discern, for proper – the differences in the forum of disposition.

MR KNOWLES:   The correspondence refers to the summons being dismissed with costs.

HER HONOUR:   Yes.

MR KNOWLES:   That summons is the summons that remains on foot, so ‑ ‑ ‑

HER HONOUR:   That is what I am saying.  The letter is only relevant to a partial success today.  I mean, in a sense, you have both partially succeeded, which may mean that the appropriate order for today is no order as to costs and otherwise the usual order to be made on a remitter.

MR KNOWLES:   Certainly the first defendant would oppose any submission that it ought to pay the costs associated with the application for an extension of time.  As to the first defendant’s position, it is submitted that the appropriate course would be simply to have costs being in the course, but if that were not acceptable to your Honour, then what your Honour has just proposed by way of an order, such that there be no order as to costs in relation to the application ‑ ‑ ‑

HER HONOUR:   To today’s application.

MR KNOWLES:   Yes – would be acceptable to the first defendant.

HER HONOUR:   Reflecting the partial success of each party.

MR KNOWLES:   Yes.

HER HONOUR:   I think that is an appropriate order, Mr Star.  You have really achieved your main aim, which is to have the matter remitted.

MR STAR:   If the Court pleases.

HER HONOUR:   There has been partial success in relation to the fact that I have heard concurrent applications, being the summons for summary dismissal and the extension of time application.  So if your minutes could reflect no orders as to costs in relation to today’s applications, and otherwise the usual order in relation to costs on a remitter.

MR STAR:   If the Court pleases.

MR KNOWLES:   If your Honour pleases.

HER HONOUR:   I thank counsel for their assistance.  Adjourn the Court.

AT 12.01 PM THE MATTER WAS CONCLUDED