MZYXP v Minister for Immigration and Border Protection and Anor

[2014] HCATrans 62

[2014] HCATrans 062

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M152 of 2013

B e t w e e n -

MZYXP

Plaintiff

and

THE MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Directions hearing

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 25 MARCH 2014, AT 12.08 PM

Copyright in the High Court of Australia

MZYXP appeared in person.

MS C.L. SYMONS:   If the Court pleases, I appear on behalf of the first defendant.  (instructed by Clayton Utz Lawyers)

ROKHAN AKBAR affirmed as interpreter.

HER HONOUR:   I have read the material filed on behalf of the plaintiff.  Does the plaintiff wish to say anything further in respect of his application?

MZYXP (through interpreter):   No.

HER HONOUR:   Thank you.  Yes, Ms Symons.

MS SYMONS:   Thank you, your Honour.  Your Honour would have seen the written submissions on behalf of the first defendant.

HER HONOUR:   Yes, you can proceed on the basis I have read those written submissions.

MS SYMONS:   Thank you, your Honour.  That being the case then I will just briefly set out the position of the first defendant and the reason why we say that the extension of time required should not be granted in this occasion.  Your Honour, the application is well out of time.  It has been filed approximately 20 months outside the time limit on applications imposed under the Migration Act.  It has been filed approximately 15 months outside the time limit provided by rule 25.06.1 of this Court’s Rules in relation to an application for a writ of certiorari and it has been filed approximately 19 months outside the time limit provided by rule 25.07.2 of this Court’s Rules. 

The plaintiff requires or needs to demonstrate an exceptional case to provide the basis upon which this Court can enlarge time.  The difficulty which the plaintiff needs to contend with is that the grounds upon which the application for orders in this Court are made replicate completely, or entirely, the grounds which were before the Federal Court and also comprehends and extends to the grounds that were before the Federal Circuit Court before it went to the Federal Court.

The Federal Magistrates Court dealt with the application and the Federal Magistrate, as he then was, found that there was no jurisdictional

error in relation to the 11 grounds that were advanced in that particular application.  Those 11 grounds were then reduced to nine in the notice of appeal that was filed in the Federal Court and those nine grounds were dealt with, in my submission, comprehensively by her Honour Justice Kenny.  Her Honour dealt with those nine grounds and rejected each one of them and gave comprehensive reasons in setting out the reason why she formed the view that her Honour ultimately did.

Her Honour also, in the running of that proceeding, gave the plaintiff the opportunity to produce material directed at a new ground which alleged, in essence, a ground of fraud committed or imputed to the Tribunal related to an alleged failure by his representative to provide the Tribunal with a psychological report.  Her Honour Justice Kenny found that there was no jurisdictional error in relation to this proposed ground.

The plaintiff relies on, in his application, the same nine grounds that were before Justice Kenny and he has not given any indication today to the Court that he wishes to enlarge upon those grounds or to introduce anything that was not before either the Federal Circuit Court or the Federal Court.  In those circumstances, your Honour, the submission is that the very same matters that were agitated and dealt with in the Federal Circuit Court and the Federal Court in turn would be before the High Court should the plaintiff be successful in his application for an extension of time.  The conclusion that follows, your Honour, is that the proceeding would be liable to dismissal as constituting an abuse of process.

The submission, your Honour, is that the application for an extension of time should be refused.  The order that the first defendant seeks is that the application to show cause be dismissed and that costs in this case should follow the event - that there is nothing in the public interest which takes this case out of the ordinary, that the costs should follow the event and that rule should not be disturbed.

HER HONOUR:   Thank you, Ms Symons.  Does the plaintiff wish to say anything further?

MZYXP (through interpreter):   Yes.  Yes, there was a mention of new grounds or new reasons in the – that was said.  Actually in my second time when I attended the court, the Federal Court, I presented new grounds, new reasons but I was told that the decision would be made on the information already provided and they did not consider any new information that I was going to give them because what I was required to provide a medical report or a report from a psychiatrist or psychologist and I was given three conditions.  I fulfilled those conditions as well when I attended the second time to court, the Federal Court, so I am not sure why they are saying that I

have not provided new reasons or new information as I obtained a medical report from my doctor.

HER HONOUR:   Thank you.

On 24 December 2013, the plaintiff, a citizen of Pakistan, filed an application for an order to show cause seeking declaratory and related relief in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 February 2012 affirming the decision of a delegate of the first defendant to refuse to grant the plaintiff a Protection (Class XA) visa.

The plaintiff made his application more than 20 months outside of the 35 day time limit for applications to the High Court imposed by s 486(1) of the Migration Act 1958 (Cth) (“the Act”). The application was also made outside of the time limits for applications for certiorari and mandamus imposed by rr 25.06.1 and 25.07.2 of the High Court Rules 2004 (Cth) (“the Rules”). The second defendant, the Refugee Review Tribunal, has filed an appearance submitting to any order the Court may make, save as to costs.

In seeking summary dismissal the first defendant, the Minister for Immigration and Border Protection, acknowledges that this Court has the power to grant an extension of time under both the Act and the Rules but submits, inter alia, that no extension should be granted where, as in this case, the plaintiff has come to the High Court only after first commencing proceedings seeking to challenge the same Tribunal decision in the Federal Magistrates Court of Australia, as it was then known, and the Federal Court of Australia. It is contended that the doctrines of res judicata and estoppel operate to preclude the plaintiff from raising the same grounds of review which have been heard and determined in the Federal Magistrates Court and on appeal to the Federal Court of Australia.

The plaintiff filed an application for an order to show cause in relation to the Tribunal’s decision on 30 April 2012.  On 31 October 2012, Turner FM dismissed the plaintiff’s application.  The plaintiff filed a notice of appeal to the Federal Court of Australia on 19 November 2012.  On 12 December 2013, the Federal Court (Kenny J) dismissed the plaintiff’s appeal with costs. 

In the application for an order to show cause the plaintiff relies on nine grounds to advance an allegation that the decision of the Tribunal was affected by jurisdictional error.  The grounds now sought to be raised are in substance the same grounds as the grounds raised in the Federal Magistrates Court and are identical to the nine particulars of sub‑grounds of the single ground of appeal set out in the notice of appeal filed in the Federal Court.  Her Honour, Kenny J, dismissed the plaintiff’s appeal before her on the basis that the plaintiff’s grounds of appeal, including a new ground, disclosed no jurisdictional error.

It is sufficient for present purposes that in all the circumstances the plaintiff’s application in the original jurisdiction of this Court, which seeks to relitigate matters already disposed of in the courts below, would be an abuse of process. The application would accordingly be liable to dismissal pursuant to r 27.09.4(c) of the Rules if it were to proceed.[1]  It would not be in the interests of justice, either generally or in this particular case, to grant an extension of time for the commencement of these proceedings.  The plaintiff has had recourse to the judicial power of the Commonwealth and has not succeeded. 

[1] Walton v Gardiner (1993) 177 CLR 378 at 393.

Submissions made orally today appear to challenge the merits of the decision made in the Federal Court in respect of a new ground of appeal.  However, nothing else was said and there is nothing in the written materials to suggest that the plaintiff plans to advance some new or different basis of challenge beyond the grounds heard and already disposed of in the Federal Magistrates Court and in the Federal Court.  For these reasons, the grounds set out in the plaintiff’s application cannot be made out.  The order of the Court is:  the plaintiff’s application for an order to show cause, filed on 24 December 2013, is dismissed with costs.

Adjourn the Court.

AT 12.35 PM THE MATTER WAS CONCLUDED