MZXSW v MIAC

[2008] HCATrans 329

[2008] HCATrans 329

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M47 of 2008

B e t w e e n -

MZXSW

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for Order to Show Cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 18 SEPTEMBER 2008, AT 9.41 AM

Copyright in the High Court of Australia

MZXSW appeared in person.

MR W.S. MOSLEY:   If it please the Court, I appear for the first respondent.  (instructed by Australian Government Solicitor)

HER HONOUR:   A submitting appearance has been filed on behalf of the second respondent.  Yes, you may address the Court and make the points you wish to make.

MZXSW:   Yes, honourable Judge, I would like to have a review on my application.  I applied in the Department of Immigration and then I appealed to RRT and also Federal Magistrates Court and I would like to have a review on that count to have the right decision made on behalf of me.

HER HONOUR:   All right.  Let me just explain to you that the Minister has brought on a summons and is making an application today and I will ask you to listen to what the Minister has to say, that is to say, the counsel appearing for the Minister, and I will give you an opportunity, after you have listened, to respond to whatever the Minister has said.  Do you understand that?

MZXSW:   Yes, I do.

HER HONOUR:   Okay.  Yes, Mr Mosley.

MR MOSLEY: Thank you, your Honour. As your Honour indicated to the plaintiff, the first defendant by a summons dated 12 September 2008 seeks orders that his application for an order to show cause be refused and that be on a number of bases, that there is either no arguable case for the grant of constitutional relief or the application is an abuse of process or it is outside the relevant time limits prescribed by the High Court Rules and/or is prevented by the estoppel arguments. Now, your Honour should have the first defendant’s summons, together with an affidavit of Maria Ngo sworn 12 September 2008 which relevantly sets out the background.

HER HONOUR:   Yes, I have read that.  Thank you, Mr Mosley.

MR MOSLEY:   Your Honour will see that the decision of the Tribunal was made on 3 September of last year and handed down on 20 September.  That is exhibit MN1 to Ms Ngo’s affidavit.  That was subject to a review in the Federal Magistrates Court in an application brought by the applicant.  On 11 June 2008, Federal Magistrate Burchardt dismissed that application.  That is MN4 to the affidavit of Ms Ngo.

HER HONOUR:   Yes, I have read that.

MR MOSLEY:   Now, no appeal was sought to be made from the decision of the Federal Magistrate.  As far as the application in this Court is concerned for an order to show cause, it is our submission and is self‑evident that the plaintiff’s claims, as reflected in that document and as reflected also in his summons and affidavit in support sworn 7 July of this year, are grounds of unparticularised generality and your Honour will see that they encompass a breach of the rules of natural justice, error of law, improper exercise of power, no evidence and procedures were not observed in connection with the making of the decision.

HER HONOUR:   How far out of time is the relief sought?  Is it four months out of time in the case of certiorari and some eight months out of time in respect of mandamus?

MR MOSLEY:   Yes, I think that is right, your Honour.  The Tribunal decision being handed down on 20 September, this application – my copy is not dated, but it was made in July 2008 which would be 10 months after the handing down.  So it would, as your Honour as observed, as far as certiorari is concerned, be four months out of time and eight months in respect of mandamus.  The applicant’s affidavit gives no explanation for the delay and, as I submitted to your Honour, the grounds articulated are formulaic and there is no basis at present before the Court at all, in my submission, demonstrating any basis upon which time ought be enlarged.  There is nothing exceptional about this case that would justify the enlargement of time and I would rely on the authorities that I have referred to in our written submissions, which your Honour has, in relation to matters relevant to the enlargement of time on that matter.

HER HONOUR:   Yes, I have read those.

MR MOSLEY:   We would further submit that this application, your Honour, apart from being out of time, is an abuse of process.  The applicant has, as your Honour is aware, already had resort to judicial power of the Commonwealth in terms of the application to the Federal Magistrates Court and your Honour will have noted in the exhibit, in the decision from Federal Magistrate Burchardt, that in paragraph [19] he said:

I regret to say that the application is without merit and must be dismissed with costs.

HER HONOUR:   Yes, I have read that.

MR MOSLEY:   Yes.  As I indicated to your Honour, there was no appeal.  In our submission, and your Honour will have also seen that in the exhibit to Ms Ngo’s affidavit, the applicant was written to by my instructing

solicitor advising him that the appropriate course was to seek leave to appeal out of time in respect of the decision of Federal Magistrate Burchardt rather than pursue an application in this Court.  In relation to the abuse of process argument, I would rely on the authorities that I have cited there, in particular Walton v Gardiner, and then, of course, there are the estoppel‑type arguments as well.  Does your Honour wish me to expand on those further at this stage?

HER HONOUR:   I do not think it is necessary, Mr Mosley.  I have read your submissions and they were quite detailed on these issues.

MR MOSLEY:   As your Honour pleases.

HER HONOUR:   Yes, come up to the rostrum, if you wish, and if you would tell me anything you wish to say in response to those points.

MZXSW:   Yes, honourable Judge, I will speak in my words because I do not know the language of law in your words.

HER HONOUR:   That is perfectly all right.

MZXSW:   But in my understanding, I made an application to Department of Immigration for a protection visa and it has been refused and then I made appeal to RRT and it has been refused, so I look for judicial review in the Federal Magistrates Court and it has been unsuccessful.  So I am trying to seek my legal rights in High Court and I do not think it is legal abuse.  I am looking for my legal rights.  Now, if they can call it abuse, I think they have been abusing me for over and over.  So I do not know what you call as abuse.  I have to pay the cost of Federal Magistrates Court $5,000 and if I lose today, that is another $5,000 and I do not where I am going to get it from, but I have to do that. 

I am just here to find out my rights, that what have I done wrong to them and every time they just try to like hide the fact that what I claim – and they can assume that I will not be in danger when I go back.  How can you assume which you do not know for a fact?  I know for a fact because I – and they are also making assumptions and they are trying to stick behind it that everything they are saying is correct.

HER HONOUR:   Do you want to make any submissions to me in relation to the point which has been made against you which is that there are no grounds to grant an extension of time in relation to this matter?

MZXSW:   About the time I would like to say, because I have followed the process and I have applied to RRT and then I went to Federal Magistrates Court and after I came to High Court.  Now, they said I have to do it within 10 months time.  How can I go to Federal Magistrates Court and High Court at the same time?  So I went there and they said, according to law there was no error made, but according to Mr Burchardt in the Federal Magistrates Court the proper – like, you know, the decision has to be made from RRT and the judge has to make the right decision.  Now, if he said that this is not black, this is dark blue, it is up to your decision, but if you have to ‑ ‑ ‑

HER HONOUR:   May I ask you, did you appear for yourself in the Federal Magistrates Court or did you have a legal representative appearing for you?

MZXSW:   No, myself.

HER HONOUR:   Thank you.

MZXSW:   So all I want is you to have a look in the file and see that where do I stand.

HER HONOUR:   Anything else you wish to say?

MZXSW:   Yes, my honourable Judge, I would like to say that the system, the way it works, it is not fair because it is not fair like the words they put - it is too complicated.  I mean, English is my second language but I learn – I have been here for so long, you know, I adopted this culture and I am like now pushed in a corner and it is very difficult to understand the legal terms.  I am here in the High Court of Australia which I have complete faith on your High Court, that I believe that I will get justice from here and all I want is you have a good look in the case that what has been really done, that it is not the law, it is not the fact, it is what has been presented and, after all – also I have presented some letters to Federal Magistrates Court because it is out of the timeframe, so it cannot be considered. 

Also, some things were mentioned earlier and they said that they have taken the report from US States Government report that the actual situation in the country, Bangladesh, how it is going over there.  Now, the report made by a third country – and also it has been mentioned before that, you know, I have no right to comment on it, but also comment that a report made by a third country, which they are wrong in.....in the past.  The war has been fought around the world, people have died, and my life is in danger.  So all I want is a protection for my life and to be secure.  Unless they all push me to a corner, then I have to be unlawful and run away and I do not want to do that.  I want to live with dignity and I want a chance to live with my dignity.

So all I want is, you know, to have you look in the case and have the files and find out, your Honour, where the mistake was done and what was the error that was done, because the error was done and I do not know what sort of error, but it was against me and this is going to put my life in danger.  That is all I have to say.

HER HONOUR:   Thank you very much.  Mr Mosley, do you wish to respond?

MR MOSLEY:   No, your Honour, save in response to your Honour’s question, the only explanation for the delay was that he could not proceed in the High Court and the Federal Magistrates Court at the same time, but having said that, of course, he has had since the handing down of that decision on 11 June 2008 to take some steps in this Court.

HER HONOUR: On 7 July 2008 the plaintiff, a national of Bangladesh, filed an application for an order to show cause, seeking writs of certiorari, mandamus and prohibition under section 75(v) of the Constitution and injunction or declaration and an extension of time within which to file his application in respect of a decision of the Refugee Review Tribunal.

The Tribunal affirmed a decision of the delegate of the Minister to refuse to grant the applicant a protection (Class XA) visa by a decision dated 3 September 2007 which was handed down on 20 September 2007.

The plaintiff arrived in Australia from Bangladesh on 16 May 1995 on a student visa subclass 560.  Between 1996 and 2007 the plaintiff had remained lawfully in Australia variously on a student visa subclass 560 and a Partner (Temporary) (Class UK) visa subclass 820.  The plaintiff applied for a protection (Class XA) visa on 19 February 2007 which was refused on 9 May 2007 by a delegate of the Minister. 

The plaintiff unsuccessfully applied for review to the Tribunal.  The plaintiff’s case before the Tribunal included a claim that he had acquired a new attitude and lifestyle over the 12 years he has spent in Australia and he expected to fear persecution in Bangladesh as a result of this.  In concluding that the plaintiff was not a person to whom Australia owed protection obligations, the Tribunal noted that the plaintiff had travelled to Bangladesh three times since 1999, most recently in 2006, and had claimed that he had suffered no interference of any kind.

On 8 October 2007 the plaintiff then applied to the Federal Magistrates Court for relief pursuant to section 39B of the Judiciary Act 1903 (Cth) asserting, amongst other things, that the Tribunal was biased and had not considered all the facts put forward by the plaintiff. On 11 June 2008 Federal Magistrate Burchardt considered that the application was without merit and dismissed it. (MZXSW v Minister for Immigration and Citizenship & Anor [2008] FMCA 708).

The plaintiff did not seek to appeal against the decision of the Federal Magistrate to the Federal Court of Australia.  Instead he commenced these proceedings in the original jurisdiction of this Court on 7 July 2008.  He submits that this proceeding can be remitted to the Federal Magistrates Court.

The application to this Court is made outside the times fixed by the Rules of Court for making application for certiorari and mandamus; Rules 25.06.01 and 25.07.02 of the High Court Rules 2004. There is a general power to enlarge time: Rule 4.02 of the High Court Rules 2004.

On 12 September 2008 the first defendant filed a summons seeking that the plaintiff’s application for an order to show cause be dismissed for want of an arguable case or as an abuse of process or because it is outside the prescribed time limits, or on the basis of res judicata and/or issue estoppel.  The plaintiff’s grounds for relief are expressed in a formulaic way.  He contends that the Tribunal breached the rules of natural justice, made an error of law and failed to observe required procedures, improperly exercised its powers and acted on the basis of no evidence.

Relief by way of writs under section 75(v) of the Constitution is sought some four months out of time in the case of certiorari and some eight months out of time in respect of mandamus. Public interest requires that there be an end to litigation about the efficiency of the acts or decisions of public bodies or officials. (Re Commonwealth and Another; Ex parte Marks (2000) 117 ALR 495, paragraph [15] per Justice McHugh).

The delay must be assessed in the context that the plaintiff has already resorted to the judicial power of the Commonwealth in relation to his application to the Federal Magistrates Court for the same relief he would seek in this Court if an extension of time be granted.  There is no material before me which shows any exceptional aspect of this case and no specific grounds are advanced to justify an enlargement of time for the bringing of the application save that the applicant states he could not deal with proceedings in two courts at once, which I understand to be a reference to the Federal Magistrates Court and this Court.

The proceeding in the Federal Magistrates Court was determined on its merits and not challenged by any subsequent appeal.  As that decision still stands, it would be an inappropriate exercise of the discretion to extend the time within which proceedings in this Court might be brought.  Furthermore, on the materials before me there is no support for the proposition that the Tribunal fell into jurisdictional error.  To the extent that factual errors are alleged, such errors are within the jurisdiction of the Tribunal to make.  However, having regard to the circumstances which are relevant to enlarging time, it is unnecessary to consider in any more detail submissions concerning abuse of process, res judicata and/or issue estoppel.

The relief which the Minister seeks by summons filed 21 September 2008 should be granted.

Mr Mosley, do you press the application for costs?

MR MOSLEY:   Yes, we do, your Honour.

HER HONOUR:   Yes, very well.  Do you have anything to say in relation to that?  You will understand that the order which will be made is that your proceeding will be dismissed.  An application has been made by the Minister that it be dismissed with costs.  Do you wish to address me on that?

MZXSW:   Yes.  I do not agree with that, but it is your decision as the final word, but I do not agree with the decision.  I believe that I have got a fair chance and that I did not get a proper look in my case and my application.  I still have a fear and it was not processed accordingly.  They have not read the lines.  They just read between the lines.  They have to look at the lines and read what is my real circumstance.  I put evidence from newspapers, medias, articles, people’s letters and nothing was considered.  Only thing that was considered is, you know, what they think is right.  It is like I am some sort of product, that I will be processed offshore in some other ‑ ‑ ‑

HER HONOUR:   I am just asking at the moment about costs.  That is the only issue.

MZXSW:   Yes, I do not agree to pay any costs.

HER HONOUR:   Very well.  Thank you. 

An order should be made that the proceeding is dismissed with costs.  The order I pronounce now, this proceeding is dismissed with costs.  Thank you.  Thank you, Mr Mosley.

AT 10.02 AM THE MATTER WAS CONCLUDED