MZXJQ v MIMA & Anor

[2007] HCATrans 115

[2007] HCATrans 115

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M13 of 2007

B e t w e e n -

MZXJQ

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Defendant

JANET DUCKMANTON IN HER CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Defendant

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 20 MARCH 2007, AT 10.04 AM

Copyright in the High Court of Australia

MR J.C. WEERAKOON:   I appear on behalf of the applicant, your Honour, on a pro bono basis.  (instructed by the applicant)

MR W.S. MOSLEY:   If your Honour pleases, I appear for the first respondent.  (instructed by DLA Phillips Fox)

HIS HONOUR:   Yes, thank you.  Again, as in the earlier matter, the second defendant filed a certificate of appearance.  Again, Mr Mosley, am I correct in understanding that you move on the summons of 7 March 2007?

MR MOSLEY:   Yes, 7 March, and the affidavit of Stella Koya sworn in support thereof and the exhibits thereto.

HIS HONOUR:   Yes.  Do you read that affidavit?

MR MOSLEY:   I do so, your Honour.

HIS HONOUR:   Yes.  Is there any objection to my receiving the affidavit, Mr Weerakoon?

MR WEERAKOON:   Not at all, your Honour.

HIS HONOUR:   Yes.  There is also an affidavit of service, but again we need trouble with that.  Yes, Mr Mosley.

MR MOSLEY:   Yes.  The applicant, your Honour, is a Sri Lankan citizen of Singhalese ethnicity.  He feared persecution due to his involvement in a political party, the UNP Party in Sri Lanka, therefore he relied on a Convention ground of political opinion.  He arrived in Australia on 23 May 2004 and made a protection visa application on 21 June.  That was dealt with by the delegate on 10 June 2005.  He then sought review in the Refugee Review Tribunal and the Refugee Review Tribunal dismissed that review application on 4 April 2006.

On 27 April he made application to the Federal Magistrates Court for review.  An amended application was filed on 30 June and then a further amended application was filed at the hearing of the matter before the Federal Magistrate.  On 31 August 2006 Federal Magistrate O’Sullivan dismissed the application.  He then, on 21 September 2006, filed a notice of appeal.  A letter re the listing of that appeal was issued by the Federal Court to the parties for a hearing on 23 February 2007, but on 18 January 2007 the applicant, or the appellant then, filed a notice of discontinuance, together with an affidavit and in that affidavit he says, effectively, that he could not afford to run the proceeding.

Then, some three weeks later, on 9 February 2007 he made application for an order to show cause in this Court.  So, that is the background to the matter, your Honour.  As far as certiorari is concerned, the application is more than four months out of time and mandamus more than eight months out of time.  I rely, your Honour, on the matters, as it were, submitted in respect of the previous application and this is the second resort to the judicial power of the Commonwealth.

The matters that were the subject of the application before Federal Magistrate O’Sullivan are the subject of his Honour’s decision which is exhibit SK3 to the affidavit of Stella Koya and your Honour will see that there were a number of matters agitated by Mr Krohn of counsel on behalf of the applicant on a further amended application that was filed at the hearing and the grounds of that further amended application are set out in paragraph 10 of his Honour’s judgment.

If your Honour will be assisted, I have a copy of that further amended application but it is set out there in full.  His Honour dealt with those matters and dismissed the application.  The applicant, as I said, then sought to appeal but discontinued that appeal for the reasons that I put to your Honour and that notice of discontinuance and the relevant affidavit are SK5 and SK6 to the affidavit.

HIS HONOUR:   Just one moment.  SK5 is the letter?

MR MOSLEY:   SK5 is the notice of listing, I beg your pardon?

HIS HONOUR:   Yes.  SK6 is discontinuance, plus affidavit.

MR MOSLEY:   SK6 is the notice of discontinuance.  Yes, and the affidavit does not get a separate – but it is paragraph 4 where he says that he is unable to continue due to financial difficulties encountered.

HIS HONOUR:   Yes.

MR MOSLEY:   So, he then discontinued and then, as I put to your Honour, some three weeks later filed application or made application in this Court.

HIS HONOUR:   Was he represented?  He was represented by Mr Krohn in the Magistrates Court?

MR MOSLEY:   Yes, he was, your Honour.

HIS HONOUR:   Yes.

MR MOSLEY:   The outline of submissions which he has filed in support of this application, your Honour will have those, dated 9 February.

HIS HONOUR:   Just one moment.  Yes, I have.

MR MOSLEY:   Does your Honour have the first page of that document, (i)?

HIS HONOUR:   Yes.

MR MOSLEY:   The allegation there made is the subject.  If one then keeps one’s finger in SK3, so to speak, your Honour will see that is the Federal Magistrates Court decision.

HIS HONOUR:   Yes.

MR MOSLEY:   Your Honour will see the matter, the subject of the first complaint, in the outline of submissions is the subject of paragraph 10, the first matter dealt with: 

The Tribunal fell into jurisdictional error in that it denied procedural fairness to the applicant.

The next one is given as a particular: 

The Tribunal failed to give the applicant an opportunity to know and deal with the possibility that the whole of his claim to have suffered persecution was a complete fabrication.

That is (ii) in his outline of submissions.

HIS HONOUR:   What is the purpose of this comparison?  Do you say that they are simply identical?

MR MOSLEY:   Yes, save, your Honour, for v and vi which were the subject of the – v and vi, I think, in the previous application your Honour dealt with.

HIS HONOUR:   The 424A complaint.

MR MOSLEY:   It is a 424A and a use of independent evidence.

HIS HONOUR:   Yes.

MR MOSLEY:   But save for that, in my submission, the matters sought to be agitated again are the same, according to the outline of submissions.

HIS HONOUR:   What follows from that fact, do you say?  Assume that to be so, what follows?

MR MOSLEY:   In our submission, your Honour, it is an abuse and the application ought be dismissed.

HIS HONOUR:   Again, do you want me to go off into these difficult waters about public law remedies?

MR MOSLEY:   I am sorry, your Honour.  That is one of the bases upon which we put it, but we would say time ought not be extended for certiorari and mandamus.  The applicant could have pursued the remedy in the Federal Court, the appeal, and could presumably still seek to have that appeal reinstated.  As he is pursing an application in this Court, presumably he could pursue an application for reinstatement out of time if he so desired.

HIS HONOUR:   Does the Minister express any view on what would happen with such an application or do you say nothing?

MR MOSLEY:   Do you mean in terms of the Minister’s position?

HIS HONOUR:   Do you express any view?  I am not saying you should, but I simply ask whether you are expressing any view?

MR MOSLEY:   No, your Honour, we are not, but it would seem that the matters were comprehensively articulated before the Federal Magistrate by learned experienced counsel on a third further amended application and those matters are simply sought to be ‑ ‑ ‑

HIS HONOUR:   The fact that it takes a couple of additions to get there does not really ring my withers much, Mr Mosley, but there we are.

MR MOSLEY:   No, your Honour.  They would be the matters that we would seek to put to the Court, your Honour.

HIS HONOUR:   Yes, thank you.  Yes, Mr Weerakoon.

MR WEERAKOON:   Yes, your Honour.  I concur with the outline of submissions presented to this Court by Mr Mosley.  Your Honour, as you can see, like in the previous case, this person is a person who has been subject to persecution in his own country for political opinion and he has valid reasons to make that application for a protection visa.  It was refused by the review to the Minister and affirmed by the Refugee Review Tribunal and then he prosecuted proceedings in the Federal Magistrates Court at which he was well represented by counsel, Mr Krohn.

Mr Krohn, of course, made provisional arguments before the Federal Magistrates Court and it failed, but my submission is that he proceeded further before the Federal Court but again due to his financial constraints and difficulties he encountered in prosecuting that case, your Honour, he had to discontinue his proceedings but it does not mean that his application for a.....in the form of relief as.....  He is still an aggrieved party and his instructions are that he be granted extension of time to explain his position, your Honour, because his complaint was that he was not given a reasonable opportunity to explain some of the inconsistencies that was found by the Tribunal although he had submitted material to that effect and he has some real substantial material to substantiate his claim for refugee status.  It was not taken into consideration by the Tribunal.

The Tribunal had not given any consideration to the documents and material submitted by him in support of his claim, your Honour.  However, this issue was not given adequate consideration and he still is of the view that his claim for refugee status is a substantive matter that needs to be addressed by your Honour’s Court and that he for the simple reason that he has not been given sufficient opportunity or adequate opportunity to explain and his grievance is that the Tribunal has not given due consideration and adequately not reviewed the material that is submitted in support of his claim, your Honour.

HIS HONOUR:   But is there any matter that he has raised in the proceedings in this Court that could not have been ventilated and argued about in the Federal Magistrates Court or on appeal in the Federal Magistrates Court to the Federal Court?

MR WEERAKOON:   Yes.  In relation to his substantial claim of – yes, your Honour.

HIS HONOUR:   The bottom line is this, Mr Weerakoon.  The plaintiff complains that his case has not been dealt with fairly.  That is the essence of his claim, is it not?

MR WEERAKOON:   Yes, it is.

HIS HONOUR:   Is there any aspect of his complaint that he makes in this Court that he could not have made in the Federal Magistrates Court?  It is not apparent to me that there could be, but if you can point one out to me, I would be assisted.

MR WEERAKOON:   The only thing that I think he could not proceed with was the fact that the material that he wanted the Federal Magistrates Court or the Federal Court to review has not been taken into consideration

and that it be further reviewed by the High Court for the purpose of granting the relief sought.  His.....is, your Honour, that in the Magistrates Court and in the Federal Court, of course, in which he did not proceed, he was financially constrained.  As a result, he was denied the opportunity of having the Federal Court to peruse those claims but he is questioning that the Federal Magistrates Court is quite – notwithstanding that he was well represented by a learned counsel the certain matters that should have been taken into consideration by the Federal Magistrates Court has not been given due consideration, therefore, so, he requests your Honour’s Court to grant extension of time to proceed with this matter further.  Thank you.

HIS HONOUR:   Yes, thank you, Mr Weerakoon.  Mr Mosley.

MR MOSLEY:   No, I do not think there is anything further to add, your Honour, save in looking at the decision of the Tribunal, the Tribunal concluded that the applicant’s claims were, as it were,  “a complete fabrication”, so they found in summary.

HIS HONOUR:   His complaint is that he was not dealt with fairly and the difficulty is that the courts are called to pass upon the legality of what has been done, not the correctness of what has been done.

MR MOSLEY:   As your Honour pleases.

HIS HONOUR:   The plaintiff, a Sri Lankan national of Singhalese ethnicity, came to Australia on 23 May 2004.  He sought a protection visa on the ground of persecution on account of his political opinions.  On 10 June 2005 a delegate of the Minister refused to grant the protection visa that the plaintiff sought.  The plaintiff sought review of that decision of the delegate by the Refugee Review Tribunal and the Tribunal by a decision dated 24 March 2006 which it published on 4 April 2006 affirmed the decision of the Minister’s delegate, not to grant a protection visa.

Being dissatisfied with that decision, the plaintiff sought relief under section 39B of the Judiciary Act 1903 (Cth) in the Federal Magistrates Court of Australia, but on 31 August 2006 Federal Magistrate O’Sullivan dismissed the plaintiff’s application for relief.

The plaintiff filed a notice of appeal seeking to appeal to the Federal Court of Australia against the decision of the Federal Magistrate.  On 18 January 2007 the plaintiff discontinued that appeal stating at that time that he discontinued the proceedings on account of his personal circumstances and financial difficulties.  In particular, he swore in support of his application for leave to discontinue the proceedings that he was unable to continue the matter “due to the financial difficulties encountered by me and in view of the present circumstances”.

Notwithstanding the discontinuance of the proceedings in the Federal Court of Australia on 18 January 2007, the plaintiff on 9 February 2007 filed an application in this Court for an order to show cause.  The relief which the plaintiff sought included leave to commence the proceedings out of time.  The substantive relief which the plaintiff sought included certiorari to quash the decisions of the Minister and the Tribunal, coupled with mandamus directed presumably to the Tribunal to hear and determine the plaintiff’s application for review in accordance with law and prohibition directed to the Minister precluding the Minister from proceeding further with the matter and acting on the Tribunal’s decision.

The central relief which the plaintiff must obtain in this Court if he is to achieve the purposes he seeks to achieve is certiorari to quash the decision of the Tribunal. Absent certiorari to quash the decision of the Tribunal, the other relief which he seeks will not go. As his application recognises, the application for certiorari is made out of time. Rule 25.06.1 of the High Court Rules 2004 prescribes the time within which application may be made for certiorari as, “six months after the date of the judgment, order, conviction or other proceeding” which it is sought to have quashed. That time had long expired by the time that the plaintiff commenced the proceeding in this Court.

Again, the plaintiff prays in aid his financial constraints and other personal circumstances in support of his application for an extension of the time within which the proceedings in this Court may be commenced.  Against that, however, must be put the fact that the plaintiff had applied for relief of identical kind on grounds substantially identical to those now advanced when he made his application to the Federal Magistrates Court.  His dissatisfaction with that decision was evidenced by his filing the notice of appeal against it.  The fact that he subsequently discontinued that appeal is a factor pointing away from the grant of the extension of time which now he needs.

In my opinion, no sufficient basis has been advanced for granting the extension of time which the plaintiff needs to commence the proceedings which he has commenced in this Court and that being so, the proceedings commenced in this Court must fail.  Whether, as counsel for the Minister suggested, application may be made to reinstate the appeal which has been discontinued in the Federal Court is a matter about which I express no view.  In particular, I express no view if such an application may be made about what should be the fate of that application.  I simply note that the plaintiff remains dissatisfied with the procedures that have been followed in the Tribunal in dealing with his claim to protection. 

For these reasons it follows that the application for an order to show cause must be dismissed.

Mr Mosely?

MR MOSELY:   I would seek an order for costs, your Honour.

HIS HONOUR:   Mr Weerakoon?

MR WEERAKOON:   Yes, your Honour.  My instructions are that at the moment he is not gainfully employed, your Honour, and he does not get any substantial income and therefore his plea to your Honour is that because of his present personal and financial circumstances in determining whether or not he should be made to pay the costs requested, your Honour, and took the view.....consideration to the fact of the financial difficulties.  Thank you, your Honour.

HIS HONOUR:   Yes, thank you, Mr Weerakoon.

The Minister seeks an order for payment of his costs.  The plaintiff resists that order on the ground that the plaintiff is unable to meet any order for costs.  In my opinion, costs must follow the event.  In addition to the order that the application for an order to show cause is dismissed there is an order that the plaintiff pay the Minister’s costs.

AT 10.29 AM THE MATTER WAS CONCLUDED