MZXGE & Ors v MIMIA & Anor

[2006] HCATrans 445

[2006] HCATrans 445

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M20 of 2006

B e t w e e n -

MZXGE, MZXGF AND MZXGG

Plaintiffs

and

THE HONOURABLE AMANDA VANSTONE, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

MR PETER KATSAMBANIS IN HIS CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Defendant

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 AUGUST 2006, AT 9.36 AM

Copyright in the High Court of Australia

MR C.J. HORAN:   If the Court pleases, I appear for the first defendant.  (instructed by Phillips Fox)

HIS HONOUR:   Do you know whether the applicant is present in Court?  We were notified that the applicant would be present and that the applicant would require a Sinhalese interpreter.

MR HORAN:   Yes, I have no updated information that is relevant to the presence of the plaintiff.

HIS HONOUR:   Given that the applicant made arrangements for an interpreter, I just wonder whether we may be safer to stand it down in the list just in case the applicant has been delayed.  Melbourne traffic comes to a grinding halt if somebody empties a bucket on the road. 

AT 9.37 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.16 PM:

MZXGE appeared in person.

MR C.J. HORAN:   Your Honour, I appear for the first defendant.  (instructed by Phillips Fox)

HIS HONOUR:   One of the plaintiffs appears in person.  I think we need the services of an interpreter, so perhaps if the interpreter could be sworn or affirmed, please.

SARATH WICKRAMASINGHE, affirmed as interpreter:

HIS HONOUR:   Thank you very much, Mr Interpreter.  Would you be good enough to take a seat at the Bar table with the plaintiff and if you could give a summary of what is said as we go along to him.  If you come

forward, sir, will you, and take a seat next to the interpreter and we can go from there.  Yes, Mr Horan.

MR HORAN:   Your Honour, there is a summons of the first defendant dated 20 July 2006 and an affidavit of Bryan Wee sworn on 19 July 2006.  The decision under review is a decision of the Refugee Review Tribunal dated 21 November 2005 and the present application was filed in this Court on 1 March 2006.  In the intervening period the applicant had brought proceedings in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision and those proceedings were dismissed by Federal Magistrate O’Dwyer on 8 February 2006 and the ex tempore judgment of his Honour appears at exhibit BCJW3 to the affidavit of Bryan Wee.

HIS HONOUR:   Yes, I have that.

MR HORAN: Now, your Honour will see that the basis on which the dismissal was made was under rule 44.12 of the Federal Magistrates Court Rules which effectively, on the hearing of the application for an order to show cause, the court may dismiss the application if not satisfied that the application has raised an arguable case. So that there was a hearing on that issue and the Magistrate concluded that there was not an arguable case for the relief claimed and dismissed the application on that basis after hearing submissions from the applicant. I am told he was represented by a solicitor at that hearing, as appears on the second page of the exhibit.

The application is outside the 84‑day period under section 486A and apart from any issues arising under that section, in my submission, the present application seeks to re‑agitate matters that were the subject of the Federal Magistrates Court proceeding which was dismissed by Federal Magistrate O’Dwyer.  The plaintiff has not attempted to appeal or seek leave to appeal from that decision and in those circumstances to bring a fresh proceeding in this Court is, in my submission, an abuse of process and the appropriate course, if any, would be for the plaintiff to seek to issue an appeal from the orders made by the Federal Magistrates Court.

HIS HONOUR:   That would now be out of time, so it would be application for leave out of time, would it not?

MR HORAN:   Yes.

HIS HONOUR:   But it would be open, would it, in those circumstances to make application for leave out of time showing, if there be one, a good arguable case?

MR HORAN:   Certainly.

HIS HONOUR:   If there is not one, there is not one.

MR HORAN:   It may also be necessary to explain the period of time that has elapsed, but that would, in part, be explained by the present application.

HIS HONOUR:   Yes, and without wanting to foreclose the position which would be revealed by evidence and argument directed more specifically to the question, it may be that the institution of the proceedings in this Court would be a matter that would bear upon whether leave out of time should be granted.

MR HORAN:   Yes, but, as your Honour has observed, the plaintiff would certainly have to demonstrate an arguable case.

HIS HONOUR:   Yes.

MR HORAN:   But, in essence, that is the issue which was resolved against him in the Federal Magistrates Court as a reason for dismissing the application.

HIS HONOUR:   Yes.  Well, Mr Interpreter, would you mind coming to the central lectern and bringing the plaintiff with you?

THE INTERPRETER:   Yes, sir.

HIS HONOUR:   The Minister is asking me to dismiss the application today.  The Minister says that if the plaintiff wanted to challenge the Federal Magistrate’s decision he had to appeal and he cannot, so the Minister says instead of appealing, come here.  His time for appealing from the Federal Magistrate has expired.  You can always apply for permission to appeal after the time has expired, but one thing the courts look for, if you do that, is whether you have got a good case.  Now, if he has an appeal, it is an appeal to the Federal Court of Australia and what the Minister says is he cannot come straight here, he should have gone to the Federal Court.  Now, as I say, the Minister wants me to dismiss the proceeding.  Now is his chance to tell me what he wants to say against that.

MZXGE (through interpreter):   Your Honour, the solicitor who represented me on the last occasion has instructed me, if the case is dismissed, the only place that I can come is the High Court, not the Federal Court.  That is why I lodged my application here.  I have no knowledge about the laws in Australia, so I did not get the opportunity to come to the correct place in correct time.  The application I lodge here, your Honour, I have submitted all the documents which are relevant to my case. 

HIS HONOUR:   Yes, is there anything else that he would want to tell me about?

MZXGE (through interpreter):   If I get a chance, your Honour, I can submit my papers properly and I can support my case with the relevant document.

HIS HONOUR:   Yes, is there anything else?

MZXGE (through interpreter):   I have nothing else to say.

HIS HONOUR:   Thank you very much, do sit down. 

There are three plaintiffs in this proceeding:  husband, wife and nephew.  They came to Australia from Sri Lanka arriving in December 2004.  They sought protection visas and a delegate of the Minister refused to grant them those visas.  They then applied to the Refugee Review Tribunal for review of the delegate’s decision.  On 1 December 2005 the Tribunal handed down its decision dated 21 November 2005 affirming the decision of the Minister’s delegate not to grant protection visas.

The plaintiffs applied to the Federal Magistrates Court for review of the decision of the Refugee Review Tribunal.  At the hearing of the proceedings in the Federal Magistrates Court the plaintiffs were represented by a legally‑qualified migration agent.  The Federal Magistrates Court, acting under powers given it by its Rules, addressed the question of whether, as framed, the plaintiffs’ application had no reasonable prospect of success.  It would seem from the Magistrate’s reasons that the person appearing on behalf of the applicants on the hearing of that application expressed his own doubts about the merit of the application that the plaintiffs had made but, be that as it may, the Magistrate formed the view that the application raised no arguable case for the relief claimed and, accordingly, dismissed the application.

The plaintiffs did not seek to appeal against those orders; rather, on 1 March 2006 they filed an application for an order to show cause in this Court directed to the Minister and to the Tribunal seeking to challenge the Tribunal’s decision.  The Minister now moves for summary termination of the proceeding in this Court on the basis that its maintenance is an abuse of process, as well also upon other grounds which it is not necessary to consider.

The plaintiffs having instituted proceedings in the Federal Magistrates Court and failed there to obtain the relief they sought, it was, of course, open to the plaintiffs to challenge that failure by way of appeal to the Federal Court of Australia.  To institute proceedings in this Court, instead of pursuing whatever rights of appeal they may have had in the Federal Court of Australia, at least in circumstances like the present where they raise no separate or different ground from grounds of the kind advanced in the Federal Magistrates Court, is, in my opinion, an abuse of process.

It would follow that the proceedings in this Court should stand dismissed. 

Before parting with the case, however, it is important that I say that dismissing the proceeding in this Court is not to be taken as expressing any view one way or the other upon what fate should befall any belated application for leave to appeal out of time against the orders made in the Federal Magistrates Court.  Any application for leave to appeal out of time would, no doubt, have to confront, among other things, whether it was possible to demonstrate an arguable case and also whether the failure to apply within time was satisfactorily explained.  Those are matters that would have to be determined according to the evidence and arguments advanced in any proceeding seeking leave to appeal out of time.  I express no view upon them.  It is, however, important to emphasise that the conclusion which I reach in these proceedings, namely, that these proceedings should stand dismissed, is not to be taken as expressing any view one way or the other about what should be done in the context of an application for leave to appeal out of time. 

The orders will be proceeding dismissed. 

Do you seek costs, Mr Horan?

MR HORAN:   I seek costs, your Honour.

HIS HONOUR:   The plaintiffs must pay the Minister’s costs.

AT 2.35 PM THE MATTER WAS CONCLUDED