MZZAD v Minister for Immigration and Multicultural Affairs and Citizenship and Anor

[2013] HCATrans 292

[2013] HCATrans 292

Office of the Registry
  Melbourne   No M125 of 2013

B e t w e e n -

MZZAD

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 20 NOVEMBER 2013, AT 9.57 AM

Copyright in the High Court of Australia

MR W.S. MOSLEY:   If your Honour pleases, I appear for the first defendant.  (instructed by Sparke Helmore)

HER HONOUR:   Thank you, Mr Mosley.  Mr Mosley, have you been given a copy of a medical certificate which was forwarded to the Court in relation to this matter?

MR MOSLEY:   Yes, your Honour.  I have received a copy of that.

HER HONOUR:   I might just have the matter called outside and then deal with that certificate.

MR MOSLEY:   If your Honour pleases.

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Thank you.  Yes, Mr Mosley.

MR MOSLEY:   Your Honour, we submit with respect to that that on the basis that that purports to be some sort of an application for an adjournment of this application, which is somewhat unclear, I assume that is all that the Court has.  It is what I have, a one page ‑ ‑ ‑

HER HONOUR:   Yes, I can confirm that that is all the Court has.

MR MOSLEY:   Addressed to the Court.  We would submit that that certificate, your Honour, is unacceptable in terms of seeking an adjournment.  The certificate, as your Honour will have noted, refers only to the fact that the plaintiff is suffering from a medical condition, which is unspecified.  It does not identify the nature of that condition and moreover does not explain why it would prevent the plaintiff from participating effectively in the hearing today.  As I submitted, it does not seek an adjournment but only states that he is unfit to attend.  It is our submission, your Honour, that in those circumstances the matter ought proceed today. 

It is his application.  He is not here.  He is not represented and for matters which I would seek to submit to your Honour the application is made out of time in any event.  I would make submissions to your Honour in respect of that that time ought not be extended, either under the Migration Act or under the rules of this Court.  For reasons also, which your Honour heard from my learned friend in the application before your Honour just past, in addition to that, as your Honour will have seen from our written submissions, the matter that is sought to be litigated in this Court is precisely the same grounds as were litigated below in the court on appeal.

So, for those reasons, we would submit to your Honour that there is no application for an adjournment and if it is taken to be such then we would submit that is inadequate to ground such an adjournment today.

HER HONOUR:   Yes, thank you.

MR MOSLEY:   Now, as far as other matters are concerned, in terms of our general submissions, your Honour will have seen our outline of submissions.

HER HONOUR:   Yes, thank you, I have read that.

MR MOSLEY:   In essence, the plaintiff, by the show cause application, seeks constitutional writ relief in respect of the Refugee Review Tribunal’s decision of 24 July 2012.  Does your Honour wish me to refer to the history of the matter?

HER HONOUR:   No, that will not be necessary.

MR MOSLEY:   The plaintiff, of course, requires and seeks an extension of time.  So much appears, I think, in his application for a show cause in relief ground 4.  He seeks an extension of time for filing of the application and there is a further reference in his affidavit sworn 19 September 2013 to the reasons why he seeks an extension of time.  That is on the last page of that document at item l.

HER HONOUR:   Yes.

MR MOSLEY:   Fundamentally, the reasons are ‑ ‑ ‑

HER HONOUR:   The reasons are he was proceeding elsewhere.

MR MOSLEY: Proceeding elsewhere and that is the only reason he gives. He says on the basis of that “explanation provided above” it would be in the interests of justice that he should be entitled to present his case and the time ought to be extended. As far as the enlargement of time is concerned, as your Honour has heard from my learned friend in the previous matter, section 486A(1) of the Migration Act provides that an application to this Court in relation to a migration decision as defined must be made within 35 days of the date of the decision.  In this case that is the date of the written statement and that date was 24 July 2012.  By 486A(2) the Court may extend that 35‑day period if an application is made in writing and, secondly, it is necessary in the interests of the administration of justice to make such an order.

Now, as far as time is concerned, specifically as far as enlargement of time under the Migration Act is concerned, the plaintiff is more than 12 months late in making this application and as far as the High Court Rules are concerned in that he seeks certiorari and mandamus, the application for a writ of certiorari is some eight months out of time and for mandamus some 12 months out of time. There is of course a general power to enlarge time in High Court Rules, rule 4.02.

Your Honour, in the previous matter, referred to the decision of Justice McHugh in Re Commonwealth; Ex parte Marks and his Honour there in an oft‑quoted passage referred – and I have cited this in our written submissions:

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 the proceedings in this court.

As far as then the explanation for the delay is concerned, I have taken your Honour to the plaintiff’s affidavit of 19 September at paragraph l.  The reason given is that he was proceeding in the Federal Magistrates Court and on appeal in the Federal Court.  It is our submission that that is not an acceptable explanation and in fact the institution of those proceedings tells against the extension of time.  In support of that proposition, your Honour, I would refer your Honour to the decision which I have referred to in our written submission – but I think we have a copy if it would assist, your Honour.

HER HONOUR:   That will not be necessary.

MR MOSLEY:   The decision of Justice Hayne in Applicants M31/2004 and which I have referred to the substance of that at footnote 6.  Does your Honour wish me to take you to that?

HER HONOUR:   No, thank you.

MR MOSLEY:   As his Honour said, the plaintiffs already had resort to the judicial power of the Commonwealth.  The same relief as sought here and the commencement of disposition of those proceedings are sufficient reasons to refuse to extend time.  Similarly, I would refer your Honour to the decision of Justice Gageler in this Court in Plaintiff S3/2013 v The Minister, which I have also referred to in our written submissions at paragraph 20.  Again, I think we have a copy of that if that would assist your Honour, but I have set out the relevant paragraphs, 13 and 14, where his Honour said, reading in part from paragraph 13:

To permit an unsuccessful applicant for review in the Federal Magistrates Court simply to start again in the original jurisdiction of the High Court would be inconsistent with the nature of the power already exercised by the Federal Magistrates Court. It would be subversive of the processes that exist for appeal under statute from that Court to the Federal Court and ultimately, by special leave, to the High Court under s 73 of the Constitution.

14. The plaintiff’s application in the original jurisdiction of the High Court seeks to re‑litigate claims that either were made or could and should have been made in the earlier proceeding she brought in the Federal Magistrates Court and which she took on appeal to the Federal Court. Her application is an abuse of the process of the High Court and will be dismissed accordingly pursuant to r 27.09.4(c) of the High Court Rules 2004.

The proper course for the applicant to have pursued in this place, should he have sought to do so, was to make an application for special leave which the plaintiff could have done instead of making this application.  Now, I think I have covered, your Honour – we submit in relation to the extension of time that time ought not to be extended for the reasons given and in particular we would submit on the basis of those authorities that the application is an abuse of process because recourse has already been had to the judicial power of the Commonwealth. 

The relief is of the same kind.  The grounds are identical, save as I have identified in our written submissions.  A couple of particulars that are added to ground 3 have been altered in the application to show cause, although in the applicant’s affidavit the grounds and particulars are identical to those agitated in the Federal Court before Justice Dodds‑Streeton and so much is evident from Justice Dodds‑Streeton’s decision which is an exhibit to one of the affidavits I will take your Honour to in paragraph 46.

HER HONOUR:   Was this also a case in which there was an attempt to enlarge the grounds before Justice ‑ ‑ ‑

MR MOSLEY:   Yes, it was, your Honour.  I think it is grounds 1 – I did not do the matter below, but I think grounds 1 and 2 were fresh grounds although I think they in some ways touched upon matters that had been agitated before the federal magistrate, as he then was, but her Honour determined that leave would not be granted, I think, at paragraph 82 in the conclusion:

Leave to raise grounds 1 and 2 is refused and ground 3 of the appeal is not established –

although her Honour did consider not only that leave ought not be given for reasons that they were not agitated below but that there was no reasonable prospect of success of those grounds and her Honour did consider them, as your Honour will see from the decision of Justice Dodds‑Streeton.  Now, does your Honour have that decision?  It is an exhibit to the affidavit.

HER HONOUR:   Yes.  Yes, I was indeed just looking at it.

MR MOSLEY:   The two affidavits in this case.

HER HONOUR:   Did you wish to take me to a particular page of it?

MR MOSLEY:   Yes, I am sorry, your Honour.  In terms of the grounds it is paragraph 46 of Justice Dodds‑Streeton’s decision where her Honour sets out the grounds in the notice of appeal dated 6 June 2013.

HER HONOUR:   Yes.

MR MOSLEY:   Those grounds are identical to the grounds that are referred to in the plaintiff’s affidavit.

HER HONOUR:   Sworn on 23 September 2013.

MR MOSLEY:   Yes, sworn on 19 September 2013.

HER HONOUR:   Sorry, I beg your pardon.

MR MOSLEY:   But identical but for a couple of particulars in his application for an order to show cause on the issue of relocation I think.  But your Honour will see that her Honour considered the amended grounds 1 and 2 or the grounds which were sought to be raised as grounds 1 and 2 and considered them - her Honour says, for instance, at 60:

Not only did the appellant fail adequately to explain why the relevant ground was not raised below –

This is in relation to proposed ground 1 –

but more importantly, it has no reasonable prospects of success.

The same criticism was made in relation to ground 2, proposed ground 2 and ground 3 was dealt with on the basis that that was a ground agitated below and dismissed.  That was the relocation finding.  Your Honour, it is

our submission fundamentally that time ought not be enlarged for the reasons given and we rely on the balance of our written submissions in relation to the other matters, res judicata, Anshun estoppel, et cetera, if that were necessary but we simply submit that time ought not be enlarged fundamentally for the reasons that I have orally put to you.

HER HONOUR:   You would need leave to amend the name of the first defendant.

MR MOSLEY:   We would, your Honour, to ‑ ‑ ‑

HER HONOUR:   To the extent that leave is necessary.

MR MOSLEY:   To the extent that leave is necessary to Minister for Immigration ‑ ‑ ‑

HER HONOUR:   To read “Minister for Immigration and Border Protection”.  Yes.  Thank you, Mr Mosley.

MR MOSLEY:   Thank you, your Honour.

HER HONOUR:   Yes, thank you, Mr Mosley.

On 23 September 2013, the plaintiff, a citizen of Pakistan, filed an application for an order to show cause seeking constitutional writs and related relief in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 24 July 2012. The plaintiff made this application more than 12 months outside of the 35‑day time limit for applications to the High Court imposed by s 486A(1) of the Migration Act 1958 (Cth) (“the Act”). The application has also been made well outside of the time limit 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 Tribunal, has filed an appearance submitting to any order the Court may make save as to costs.

On 18 November 2013, the Court received a medical certificate from the Coburg Medical Centre completed on 16 November 2013 which stated that the plaintiff is unfit to attend the Court today because he is suffering from a medical condition.  The plaintiff has not otherwise communicated any request for an adjournment of today’s proceedings.  The first defendant opposes such a course on the basis that the medical certificate advances no explanation as to why the plaintiff cannot appear at today’s hearing.  In all the circumstances, there is insufficient material before the Court to warrant the grant of an adjournment of the hearing of summonses returnable today.

The first defendant acknowledges in written submissions that this Court has the power to enlarge the time under both the Act and the Rules, but submits that no enlargement should be granted where, as in this case, the plaintiff has come to the High Court only after first seeking judicial review in the Federal Circuit Court of Australia and the Federal Court of Australia.

The plaintiff arrived in Australia on 12 July 2008 as the holder of a Student visa.  A delegate of the first defendant refused the plaintiff’s application for a Protection (Class XA) visa on 3 January 2012.  The plaintiff applied to the Federal Circuit Court for judicial review of the Tribunal’s decision and, on 16 May 2013, Judge Burchardt of the Federal Circuit Court dismissed the plaintiff’s application on the basis that the plaintiff was essentially seeking merits review of the Tribunal’s findings in respect of the plaintiff’s possible relocation in Pakistan.  The plaintiff then appealed to the Federal Court.  On 30 August 2013, Dodds‑Streeton J dismissed the plaintiff’s appeal.  Her Honour refused to allow the plaintiff to add additional grounds of appeal because there was no explanation of why they had not been raised below and in her Honour’s opinion the additional grounds had no reasonable prospects of success.  Her Honour also found there was nothing to suggest that the Tribunal misunderstood or misapplied the relocation test relevant to the plaintiff, which was the central issue on the appeal.

In Re Commonwealth; Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67, McHugh J stated the principles applicable to applications for an enlargement of time. Periods within which applications may be made for certiorari and mandamus are such that only exceptional circumstances would justify enlarging those times. In deciding whether or not to enlarge time the Court may take into account the explanation for delay and a plaintiff’s prospects of success in the proceedings. The plaintiff’s explanations for delay are that he was proceeding elsewhere.

As observed by Hayne J in Applicants M31/2004; Ex parte Minister for Immigration, Multicultural and Indigenous Affairs and Anor [2004] HCATrans 318, on 24 August 2004, the institution and disposition of proceedings elsewhere constitutes reason to refuse the enlargement of time which would be a necessary condition precedent to making the claims sought to be made in this Court.

Furthermore, the arguments advanced by the plaintiff in his affidavit sworn on 19 September 2013 in support of his application for an order to show cause are the same as those considered and rejected by the Federal Circuit Court and the Federal Court, despite attempts to recast and enlarge them in the Federal Court.  Some additional particulars set out in the application to show cause do not alter the substance of the cause of action advanced, heard and dismissed below, and sought to be advanced in this Court.

The plaintiff’s application in the original jurisdiction of this Court to relitigate matters determined in the courts below would be an abuse of process which would be liable to dismissal pursuant to r 27.09.4(c) of the Rules if it were to proceed.

Accordingly, it would not be in the interest of justice, either generally or in this particular case, to grant any enlargement of time for the commencement and continuation of these proceedings.  The plaintiff has had resort to the judicial power of the Commonwealth and has not succeeded.  There is nothing of substance to suggest that the plaintiff plans to advance some new or different basis of challenge beyond the grounds heard and disposed of in the Federal Circuit Court and the Federal Court.

The orders of the Court are:

1.Leave as necessary be granted to the first defendant to amend the name of the first defendant in the proceedings to read “Minister for Immigration and Border Protection”.

2.The plaintiff’s application for an order to show cause filed on 23 September 2013 is dismissed with costs.

MR MOSLEY:   As your Honour pleases.

HER HONOUR:   Nothing further, Mr Mosley.

MR MOSLEY:   No, nothing, your Honour.  Thank you.

HER HONOUR:   Adjourn the Court.

AT 10.22 AM THE MATTER WAS CONCLUDED