MZZAT v Minister for Immigration Multicultural Affairs and Citizenship and Anor

[2013] HCATrans 291

[2013] HCATrans 291

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M109 of 2013

B e t w e e n -

MZZAT

Plaintiff

and

MINISTER FOR IMMIGRATION 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 9.30 AM

Copyright in the High Court of Australia

MZZAT appeared in person.

MS S.A. BURCHELL:   If it pleases the Court, your Honour, I appear on behalf of the first defendant.  (instructed by Clayton Utz Lawyers)

CHANDIKA LIYONAWADAGE affirmed as interpreter.

HER HONOUR:   Yes, thank you.  Mr Interpreter, if there is any difficulty with the pace or speed with which the proceedings are being conducted, would you please tell us.  Thank you.  Yes, Ms Burchell.

MS BURCHELL:   Your Honour, this is the return of summons dated 3 September 2013.

HER HONOUR:   I might just get you to slow down so that what you are saying can be interpreted.

MS BURCHELL:   Yes.  As I was saying this is the return of the plaintiff’s summons dated 3 September 2013 and the plaintiff seeks an order in the nature of a writ of prohibition, writ of certiorari, writ of mandamus and an extension of time. 

HER HONOUR:   Yes.

MS BURCHELL:   The plaintiff has also filed an outline of submissions of the same date and it is noted that in paragraph (a) in answer to why the matter should be remitted to another court, the plaintiff notes that this matter should not be remitted to another court as the Federal Circuit Court of Australia has already dealt with the matter and given their decision.

HER HONOUR:   Yes.

MS BURCHELL:   Further, in the affidavit in support of the applicant, filed on 3 September 2013, he quite properly notes that the Refugee Review Tribunal made a decision on 24 August 2012 and one notes that is more than a year ago.  That is found at paragraph (c) of the affidavit and a copy of that decision is exhibited at WW‑1 to that affidavit.  The plaintiff then also quite properly notes that he applied to the Federal Circuit Court for review of that ‑ ‑ ‑

HER HONOUR:   You started by saying that the plaintiff filed a summons.  The plaintiff filed an application for an order to show cause.

MS BURCHELL:   That is correct.

HER HONOUR:   Was there a summons with that, was there?

MS BURCHELL:   There was also a summons filed with that on the same date.

HER HONOUR:   Yes, on 3 September also.

MS BURCHELL:   That is correct, your Honour.

HER HONOUR:   Thank you.

MS BURCHELL:   The plaintiff then noted that on 17 May 2013 his application to the Federal Circuit Court was dismissed.

HER HONOUR:   Yes.

MS BURCHELL:   That is exhibited at WW‑2 to his affidavit.

HER HONOUR:   Yes.

MS BURCHELL:   He then notes at paragraph (e) to his affidavit that he applied to the Federal Court of Australia on appeal of that decision of Judge Hartnett and on 9 August 2013 his appeal was dismissed by Justice Dodds‑Streeton and her Honour’s decision is found at WW‑3 to the exhibits.

HER HONOUR:   Yes.  I have read those decisions.

MS BURCHELL:   Your Honour will then note that in support of the Minister’s summons dated 18 September 2013 there is an affidavit of Christopher Edward Andrew Hibbard and Mr Hibbard exhibits the protection visa application made on 11 March 2011.

HER HONOUR:   Yes.

MS BURCHELL:   That is found at exhibit CH‑1.  It has the delegate’s refusal exhibited at CH‑2.  It refers to the Refugee Review Tribunal decision which is exhibited in the plaintiff’s affidavit at WW‑1.

HER HONOUR:   Yes.  Now, just looking at that for a moment that is the decision that you are referring to as having been made on 28 August?

MS BURCHELL:   It was made on 24 August 2012, but sent to the applicant by letter.

HER HONOUR:   Yes, right.

MS BURCHELL:   On 27 August 2012.

HER HONOUR:   Thank you.  So made on 24 August?

MS BURCHELL:   Yes, that is correct.  That affirms the delegate’s decision.

HER HONOUR:   Yes.

MS BURCHELL:   Then on 20 September 2012 the plaintiff filed an application for an order to show cause in relation to the Tribunal’s decision in the then Federal Magistrates Court and your Honour will find that application at exhibit CH‑3.

HER HONOUR:   Yes, thank you.

MS BURCHELL:   Then the notice of appeal, which basically reiterates the same grounds as that agitated before the Federal Circuit Court, is found at CH‑4 dated 4 June 2013.  Your Honour, then the summons filed by the Minister seeks that the application for leave for an extension and the application for the writs be refused.  There are a number of grounds that are set out in that summons.

HER HONOUR:   Yes.  I have your amended outline of submissions.

MS BURCHELL:   Yes, thank you, your Honour.

HER HONOUR:   Dated 15 November 2013.

MS BURCHELL:   Yes, that is correct.  The Minister relies on that written outline of submissions.

HER HONOUR:   Yes, I have read those.  Now, what is the purport of paragraph 3?  There does not seem to be any indication in the papers that it is necessary to address that issue.

MS BURCHELL:   Yes, it perhaps does pre‑empt if that may be an application made by the plaintiff simply because - given that the plaintiff has conceded that exactly the same grounds that are sought to be raised before this Court has been dealt with ‑ ‑ ‑

HER HONOUR:   That is the point of it, is it?

MS BURCHELL:   Yes, so it is just in case he wishes to make an argument for special leave that when one looks at the merits – in any event this Court needs to look at the merits of the argument as to whether or not the Court will exercise its discretion in favour of the plaintiff.

HER HONOUR:   In any event, that is a response to all the concessions made about the fact that the grounds of review which are advanced in this Court have already been dealt with in courts below?

MS BURCHELL:   That is correct, your Honour, yes.

HER HONOUR:   Thank you.  I will just let the interpreter catch up.  Yes, thank you.

MS BURCHELL:   Thank you, your Honour.  Your Honour, it is submitted that the simplest way to deal with the application before this Court is to simply not extend the time limits for the relief sought by the plaintiff.  It is submitted that on the material before the Court the plaintiff has not proven that he has an exceptional case.  Further, for the reasons outlined in the written submissions and in light of the Federal Circuit Court decision and the appeal in the Federal Court, the applicant has no prospects of success. 

In relation to an extension of time under section 486A of the Migration Act, it is submitted that the plaintiff has not shown that it is in the interests of the administration of justice for an extension of time to be granted.  If your Honour is with me in relation to that argument it is submitted that that is a neat answer to the current application before the Court.  In the alternative, it is submitted that the current application made by the plaintiff is an abuse of process and that is because, on the plaintiff’s own material, he seeks to relitigate questions already decided by a competent court. 

Further, and in the alternative, one then turns to the principles of preclusion and it is submitted there is no arguable case made by the plaintiff because of the principles of res judicata because the plaintiff seeks to launch exactly the same action in this Court as that below in the Federal Court.  He is also precluded under issue estoppel because the arguments sought to be raised in this Court have already been raised below and even if the plaintiff could show that there is a new issue that he wishes to raise in this Court, and it is submitted that there is nothing that is apparent on the material currently filed, that Anshun estoppel would also preclude this application because those matters should have been raised below.

In relation to the doctrine of Anshun estoppel there is a residual discretion for this Court and it is submitted that there is no special circumstance which has been shown by the plaintiff to allow this Court to exercise its discretion in his favour. 

Finally, your Honour, it is noted that prohibition has also been sought by the plaintiff and it is submitted that prohibition is inappropriate in this subject matter.  There are no special features in this case to allow special leave to be granted. 

In those circumstances, it is submitted that the appropriate orders that ought to be made are first, that the name of the first defendant be amended to the “Minister for Immigration and Border Protection” - there was that change of name as of 18 September of this year; second, that the plaintiff’s application be refused; and, third, that the plaintiff pay the first defendant’s costs of the application.  Your Honour, unless there are any further questions, those are the submissions for the Minister.

HER HONOUR:   Thank you.  Yes, would you like to come forward and say whatever you wish to say?

MZZAT:   Yes, your Honour.  I just ask you to just put my case back into RRT, that is my decision.  That is what I am just asking your Honour here.

HER HONOUR:   Is that all you wish to say?

MZZAT:   Yes.

HER HONOUR:   All right, thank you.

MZZAT:   No worries.

HER HONOUR:   Thank you.

On 3 September 2013, the plaintiff, a citizen of Sri Lanka, filed a summons and 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 August 2012.  The second defendant, the Tribunal, has filed an appearance submitting to any order the Court may make save as to costs.

The plaintiff made his application for an order to show cause 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”). In seeking an extension in respect of that time limit the plaintiff needs to show it is in the interests of justice to grant such an extension. 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 first defendant filed a summons on 18 September 2013 seeking to have the plaintiff’s application summarily dismissed on the basis that it was made out of time and in circumstances where the necessary extension or enlargement of time should be refused. It is further contended by the first defendant that the application is an abuse of process.

The Court has the power to enlarge time both under the Act and the Rules, but here 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 30 September 2007 as the holder of a Student visa.  The plaintiff’s subsequent application for a Protection (Class XA) visa was refused by a delegate of the first defendant, which refusal was affirmed by the Tribunal on 24 August 2012.

Ms Burchell, which is the exhibit of the decision of the Federal Court of Australia?

MS BURCHELL:   That is found in the plaintiff’s material.  It is found at WW‑3 – Justice Dodds‑Streeton’s judgment of 6 August 2013.

HER HONOUR:   Yes, thank you.  I will just take a moment to consider that further.

The Tribunal found the plaintiff’s evidence to be scant and lacking in detail and observed that there were significant inaccuracies and inconsistencies in his evidence which detracted from the plausibility of his claims and his overall credibility.  The Tribunal found that the plaintiff would not be at risk upon return to Sri Lanka.  The plaintiff applied to the Federal Circuit Court for judicial review of the Tribunal’s decision and on 17 May 2013 Judge Hartnett of the Federal Circuit Court dismissed that application.  The plaintiff then appealed to the Federal Court on 4 June 2013 and on 9 August 2013 Dodds‑Streeton J, sitting in the appellate jurisdiction, dismissed the plaintiff’s appeal.  In doing so, her Honour refused leave to raise new grounds of appeal not advanced below which had no prospects of success.

The arguments advanced by the plaintiff in 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. The plaintiff’s application in the original jurisdiction of this Court to relitigate the same cause of action, in substance already 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 commence.

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 which the Court is empowered to make, particularly where the plaintiff makes out an exceptional case for such an extension. The grant of an enlargement of time is not automatic. In deciding whether or not to enlarge time, the Court may take into account a plaintiff’s prospects of success in the proceedings. Delay caused by instituting other proceedings in which the same cause of action is disposed of is not a sufficient reason to grant an extension of time as such delay is neither an exceptional or special circumstance.

In all of the circumstances described above, 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 and continuation of these proceedings.  The plaintiff has had resort to the judicial power of the Commonwealth and has not succeeded.  There is nothing in the material filed by the plaintiff in support of the application or said today in oral submissions to indicate that the plaintiff plans to advance some new or different basis of challenge beyond the grounds already heard and determined in the Federal Circuit Court and in the Federal Court.

The orders of the Court are:

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

2.The plaintiff’s application for an order to show cause filed on 3 September 2013 is refused.

3.The plaintiff pay the first defendant’s costs.

MS BURCHELL:   If it please the Court.

AT 9.57 AM THE MATTER WAS CONCLUDED