MZYJF v Minister for Immigration and Citizenship & Anor

[2011] HCATrans 315

[2011] HCATrans 315

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M60 of 2011

B e t w e e n -

MZYJF

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 10 NOVEMBER 2011, AT 9.43 AM

Copyright in the High Court of Australia

MZYJF appeared in person.

SURINDER MUDHER, affirmed as interpreter:

HIS HONOUR:   Mr Interpreter, thank you.  If you would be good enough to sit next to the plaintiff and if you would, first, explain to the plaintiff that I am required not to use his name and that I intend no discourtesy to him because I am unable to address him by name.

MR R.C. KNOWLES:   May it please the Court, I appear for the first respondent.  (instructed by Clayton Utz)

HIS HONOUR:   There is a submitting appearance for the second respondent.  Mr Knowles, you move, do you, on a summons of 7 October?

MR KNOWLES:   That is correct, your Honour.

HIS HONOUR:   In support of that you rely on the affidavit of Natasha Bosnjak, is that right, affirmed on 5 October?

MR KNOWLES:   Yes, that is correct, your Honour.

HIS HONOUR:   And you read that affidavit?

MR KNOWLES:   Yes, your Honour.

HIS HONOUR:   Mr Interpreter, would you be good enough to explain to the plaintiff that the Minister is asking for orders that the plaintiff’s case be dismissed and that after I have heard what the Minister’s counsel wants to say to me I will ask the plaintiff what he wants to say in answer.  So that he should listen to your interpretation of what the Minister’s counsel says and he will then be asked what he wants to say in answer to what the Minister has said.  Thank you, Mr Interpreter.  Yes, Mr Knowles.

MR KNOWLES:   Thank you, your Honour.  In addition to the affidavit of my instructor, Ms Bosnjak, your Honour should also have the affidavit filed and served by the plaintiff in this matter.  Does your Honour have that?

HIS HONOUR:   Yes, I do.

MR KNOWLES:   Thank you, your Honour.

HIS HONOUR:   That is the affidavit ‑ ‑ ‑

MR KNOWLES:   Sworn on 1 July this year.

HIS HONOUR:   Yes.

MR KNOWLES:   Thank you, your Honour.  I may come back to that in due course because that affidavit has exhibited to it the Tribunal’s decision and then subsequent decisions of the Federal Magistrates Court, the Federal Court and the High Court.

HIS HONOUR:   Yes.

MR KNOWLES:   In terms of the history of this matter, your Honour will have seen that the plaintiff is a citizen of India and there was a decision handed down by the Refugee Review Tribunal on 1 July 2010.  In that decision the Tribunal affirmed a previous decision of a delegate of the Minister refusing to grant a protection visa to the plaintiff.  There then followed judicial review proceedings, your Honour, in the Federal Magistrates Court.  Those proceedings were unsuccessful for the plaintiff, being dismissed on 22 November 2010.  An appeal to the Federal Court was subsequently dismissed on 16 February 2011 and an application for special leave to appeal from the judgment of the Federal Court was dismissed on 9 June 2011.  Then the present application in this Court was made on 1 July 2011. 

In this case, the present application before the Court relates to the same decision of the Refugee Review Tribunal which was the subject of the previous proceedings before the Federal Magistrates Court, the Federal Court and the High Court in respect of the special leave application. The application before the Court today was initiated one year after the date of the Tribunal’s decision, the subject of this application. As such, the application has been made out of time when one has regard to section 486A of the Migration Act 1958 and although no formal application has been made for an extension or enlargement of time in the application for an order to show cause, the application is informally referred to at paragraph 29 of the plaintiff’s affidavit.

I mentioned a moment ago section 486A of the Migration Act, your Honour. That prescribes a 35–day time limit in which to apply to this Court for judicial review of a decision, the 35 days running from the date of the decision the subject of the application. Section 486A does, however, provide for the Court to make orders extending that time limit where the Court is satisfied that it is necessary in the interests of the administration of justice to do so.

In this case, your Honour, where the Tribunal’s decision was made at the beginning of July 2010, the 35‑day period expired in August 2010 and, as such, the application is over 10 months out of time in being made to this Court. I note, your Honour, for the sake of completeness that even if, for some reason, section 486A were not to apply and the time limits in the High Court Rules applied instead, this application would still be out of time. Those rules, of course, provide for the Court to make orders to enlarge time, specifically pursuant to rule 4.02. That power is to be exercised in order to do justice between the parties.

In the first defendant’s submission, your Honour, whether this power to extend time requires consideration of the interests of administration of justice pursuant to section 486A of the Migration Act or doing of justice between the parties pursuant to the High Court Rules, either way it is submitted that this Court should not make an order extending or enlarging time in the circumstances of the present case.

It is submitted that the plaintiff has not shown any circumstances which properly justify the delay, which is in excess of 10 months if one has regard to the time imposed by section 486A. In this respect, the previous judicial review proceedings, it is submitted, do not provide justification for the length and extent of delay.

In addition to that, your Honour, some of the arguments that were the subject of the previous proceedings are now sought to be agitated and now it is sought that they be agitated again in this proceeding. I refer specifically to arguments concerned with the operation of section 424 of the Migration Act. 

HIS HONOUR:   Do the proceedings in this Court raise any ground that has not been dealt with in the earlier proceedings?

MR KNOWLES: As far as I can make out, your Honour, yes, and in particular there are three grounds raised, your Honour, in the application for an order to show cause. Of those three grounds, the second and third grounds do not appear to have been raised in the previous proceedings before the Federal Magistrates Court or the Federal Court or then in the special leave application to the High Court. So the remaining ground is a ground directed to the section 424A issue which, in my submission, has been previously dealt with but, in any event, is without merit.

The reason I say that it is without merit, your Honour, is when one has regard to the particular paragraphs in the Tribunal’s decision that are referred to in the particulars to that ground, it is quite clear that the information relied upon by the Tribunal was either information supplied by

the plaintiff himself or, alternatively, general country information and, in those respects, section 424A did not apply.

HIS HONOUR:   Well, do I understand your case to be that no reason is shown for extending times to permit the application to be made?

MR KNOWLES:   That is so, your Honour, and just for the sake of completeness I should add that the second and third grounds, albeit not raised previously, are, in my submission, without merit and, in any event, there is no indication why those grounds could not have been raised earlier.  The second ground goes to a purported failure by the Tribunal to consider the applicant’s claims concerning his religious beliefs and association with a group known as the Catholic ‑ ‑ ‑

HIS HONOUR:   I think that if your application has strength, its strength comes from the fact that there have been earlier proceedings and those proceedings have been determined.

MR KNOWLES:   Yes.  Well, it is submitted in any event that those two grounds do not have merit and beyond that, your Honour, we do not make any further submissions.

HIS HONOUR:   Yes, thank you.  Now, Mr Interpreter, as I indicated, this will be the opportunity for the plaintiff to say what he wants to say in answer.

MZYJF (through interpreter):   The issue which was the time period I did not know anyone – I did not have any sources here.  I was very much new here and I could not get proper guidance.  Whatever the issue was with me, whatever happened to me in India, I have given all the reasons and I have provided all the documents.  There was nobody there to guide me.  Nobody was telling me what to do so you should help me.  What decision you are going to take in my case now, your Honour?

HIS HONOUR:   Is there anything else he wants to say to me before I get to that point?

MZYJF (through interpreter):   Not, your Honour.

HIS HONOUR:   Thank you, perhaps if you both sit down.  Thank you, Mr Intepreter.  Mr Knowles, I need not, I think, trouble you in reply.

The plaintiff is a citizen of India.  He arrived in Australia on 9 July 2008 on a tourist visa for the purposes of his attending World Youth Day.  A little more than a year after he had arrived in Australia he applied for a Protection Class XA visa.  On 13 August 2009, a delegate of the Minister refused the plaintiff’s application.  The plaintiff applied to the Refugee Review Tribunal for review of the delegate’s decision but on 30 June 2010 or 1 July 2010 the Tribunal affirmed the delegate’s decision.

The plaintiff sought judicial review of that decision of the Tribunal and on 22 July 2010 filed an application in the Federal Magistrates Court seeking relief under section 39B of the Judiciary Act 1903 (Cth) and associated relief. On 22 November 2010, Federal Magistrate Turner dismissed the plaintiff’s application. The plaintiff gave notice of appeal against the Magistrate’s order and, on 16 February 2011, a single judge of the Full Court of Australia, exercising the appellate jurisdiction of that court, dismissed the plaintiff’s appeal.

On 1 March 2011, the plaintiff sought special leave to appeal to this Court against the orders made by the Federal Court of Australia.  On 9 June 2011, Justices Gummow and Kiefel directed the Registrar to draw up, sign and seal an order dismissing the application for special leave to appeal and the application was dismissed.

On 1 July 2011, the plaintiff filed an application for an order to show cause in relation to the decision of the Tribunal that had been made on 30 June 2010.  The application which the plaintiff filed was, therefore, an application seeking to challenge the decision which he had sought unsuccessfully to challenge by his earlier proceedings. 

The application for an order to show cause is made well outside time. It is made beyond the times fixed by section 486A of the Migration Act (Cth). It is made beyond the longer period fixed by rule 25.06.1 of the High Court Rules 2004. It is convenient to proceed on the assumption, favourable to the plaintiff, that the applicable time limit is that fixed by the Rules. On that assumption a question would arise about whether some extension of time should be granted to him, but no extension of time should be granted unless it was in the interests of justice to do so.

By his application for an order to show cause the plaintiff seeks various relief.  He seeks declaration, certiorari, prohibition and mandamus, but essential to his achieving effective relief is his application for an order for certiorari quashing or setting aside the Tribunal’s decision.  In Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67 Justice McHugh said at page 495, paragraph [15] that:

An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties.  That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension.  Where an applicant seeks the issue of the constitutional of prerogative writs, a further factor must be considered.  Those writs are 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.

As Justice McHugh continued at page 496, paragraph [16]:

The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court.  In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.

Those principles are engaged in this particular case.  They are engaged with special force having regard to the fact that the period between the decision which the plaintiff seeks to challenge and the commencement of proceedings in this Court has been occupied by the plaintiff’s unsuccessful attempts by other forms of procedure to obtain the result which he now seeks by the institution of proceedings outside the time which is fixed for their commencement. 

In my opinion, no extension of time could or should be granted to the plaintiff in this case for his applying for certiorari or mandamus.  Without the grant of certiorari, no other relief of the kind which the plaintiff seeks would be available.  No other relief would be available because the decision to affirm the refusal to grant him a Protection Class XA visa would stand unaffected.  Because no extension of time could or should be granted in this case for the application for certiorari, the proceedings generally are proceedings which must fail.  Accordingly, there should be an order that the proceedings stand dismissed.  Mr Knowles.

MR KNOWLES:   Your Honour, the Minister would seek the usual order in respect of costs, that they follow the event.

HIS HONOUR:   Yes.  Is there anything the plaintiff can say against there being an order for costs?

MZYJF (through interpreter):   Is it necessity – if you can help me, I do not do much work.

HIS HONOUR:   I understand that, yes.  Thank you, Mr Interpreter.  The application must stand dismissed with costs. 

Mr Interpreter, thank you for your assistance.  I am indebted to you.

AT 10.18 AM THE MATTER WAS CONCLUDED