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

[2013] HCATrans 293

[2013] HCATrans 293

Office of the Registry
  Melbourne   No M128 of 2013

B e t w e e n -

MZZCB

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 2.13 PM

Copyright in the High Court of Australia

MZZCB appeared in person.

MR J.D. BROWN:   Good afternoon, your Honour, I appear on behalf of the Minister.  (instructed by Australian Government Solicitor)

GRACE ADDAKULA, affirmed as interpreter.

HER HONOUR:   Yes, Mr Brown.  It is your summons, Mr Brown?

MR BROWN:   Yes, your Honour.  Your Honour, this summons has been filed in response to an application for an order to show cause that was filed by the plaintiff.  The Minister’s contention is that the application is an abuse of process as the applicant has already sought review of the Tribunal decision that he is seeking to impugn through the Federal Circuit Court and then on appeal to the Federal Court.

HER HONOUR:   Madam Interpreter, have you had an opportunity to translate what has just been said.

THE INTERPRETER:   I am interpreting now, your Honour.

HER HONOUR:   All right.  Let us know if you need to have any extra time.

THE INTERPRETER:   Sure, your Honour.

HER HONOUR:   Thank you.  Yes, Mr Brown, take it slowly, I think.

MR BROWN:   So, your Honour, given that this application has been brought in the original jurisdiction of the Court rather than being an application for special leave to appeal from the decision of Justice Dodds‑Streeton in the Federal Court ‑ ‑ ‑

THE INTERPRETER:   Sorry, would you repeat that one more time, Mr Brown?

MR BROWN:   As this proceeding has been brought in the original jurisdiction of the High Court rather than an application seeking special leave to appeal from the decision of Justice Dodds‑Streeton in the Federal Court, it is the first defendant’s contention, particularly in the light of the grounds identified by the plaintiff in his application, that this matter has already been determined by the Federal Circuit Court within the same

jurisdiction as is enjoyed by this Court.  That decision, in turn, was affirmed on appeal to the Federal Court where the plaintiff sought to argue essentially the same arguments that he now seeks to raise in this proceeding.  So that is the fundamental basis for the first defendant’s case that the matter should be dismissed.

HER HONOUR:   I have read the written outline of submissions and the exhibits which have been provided by both parties.

MR BROWN:   Thank you for that indication, your Honour.  If there is anything we can assist you with further, your Honour.

HER HONOUR:   It would be appropriate for you to sit down and I will invite the plaintiff to make whatever submissions, through his interpreter, the plaintiff may wish to make.

MR BROWN:   Thank you, your Honour.

HER HONOUR:   Yes.

MZZCB:   Your Honour, actually with the submissions what I made in the Federal Court and in the Federal Circuit Court also I informed them that the proceedings were not in the way they had to be – the video conferencing.  I asked – requested the judge to listen to the recording wherein they can understand that there are frequent lags in the conversation and wherein the RRT member has addressed that I have been taking a lot of pauses and I have been prompted to tell the right answer.

I informed that in the High Court but cannot find in the findings what she has made here that the delay in the process, like according to the RRT member is because he wanted to write down the notes up there.  I have also given you a list report wherein they clearly have some general UNHCR wherein like interrupting me is like I cannot be conveying my message properly where he finds there is nothing.

When it comes to the credibility of the case, the RRT member has addressed that whatever injuries I have faced he does not find them genuine but whereas if he would have been in front – and the reason why I think he said that was if he was in front of me I could show him in a physical way that here you can have a look here or you can like a – but I do not think in a video conferencing it would be genuine of me lifting up my leg and showing him what injuries I am really suffering from despite of – because he was interrupting me constantly for noting down – he has also told them in between that I have to make notes so please slow down.  So he was not only slowing down my procedure, like according to them they mean he has to be taking down only the main points, not every point I tell.  He was interrupting me and saying slow down, slow down, thus violating the basic rights which I should be getting, having my flow.

Even after requesting the Federal Court and the Federal Circuit Court to listen to the recording so they understand whether there is a lag in what I am saying or I have been prompted or the reason why there is a delay in my conversation, they have not listened to any recording or have not even considered - just taken the case just based on whatever was written.  They have not listened to me.

As I see here, like I got a letter from Mr David Brown that this is an abuse of the process because I have been submitting the same documents again.  In the Federal Circuit Court when I tried to submit new documents, the judge would not accept them.  He said you cannot be submitting new documents and I thought the same so I cannot be putting forward any new things in my case.  That is the reason why I explained in the federal High Court as well that that is the reason why in my submissions there is not anything because I thought it should be the same thing, whatever is in the previous thing, the same should be here.

So that is the reason why I could not make a new submission but I could only provide evidence of the reports wherein the standard basic process according to UNHCR, the steps, nothing of them, not even 70 per cent of them were followed – it was just 40 per cent of it.  Even after me telling them that I am not familiar with the video conferencing facility, I sent them a letter stating that.  Even after me denying to that they have still wanted and pressurised me into video conferencing without giving me much time or time to think about it – nothing like that.  It is just like they gave me a date.  I have sent them a request denying and wanted it in person – they did not agree to that.  They just told it should be done.

According to the – and some of the things which I told in the Federal Court were that they have actually taken like when it comes to basis of credibility they have told in the RRT hearing that there was no fights or any civil wars in the state where I am from which was completely false as I told them.  According to the Federal Circuit Court they state that the decision is to be taken on the basis of the most recent information and I tried to show in the Federal Circuit Court which was talking about a new ground, like why that one is wrong because according to the latest date and according to the previous date as per my submission there was a real fight in that country but according to the RRT they said there was nothing they could find of that state, which was completely a misleading thing.

I also told in the Federal Court that I have not used the interpreter because if the video conferencing would actually the interpreter been sitting with me I would have a much more chance in speaking to the interpreter and get – it is like the interpreter is sitting somewhere far away and I have to communicate with him which is very difficult and also annoying for the interpreter as well as for me which is also written in the reports.

Basically the main changes to be made and whatever information I have given to the RRT member at the hearing he has never given any sign of not willingness or any doubts he got regarding the information I have provided like – how do you say?

THE INTERPRETER:   Evidence.

MZZCB:   Whatever evidence I have given him I have asked him if he needs any more further evidence.  He has never requested for any further evidence but has totally - every single word that I have told he has just told that is like – that cannot be true, which is like not even a single thing in my case was told like all right this is right, this is wrong.  Even after taking so much oaths and everything at least it is basic that a person who is taking – the member should at least show some sign of positiveness to me that I can tell him anything.  But at the end of the decision whatever he gives he has never told me any disbelief in whatever statements I have made while telling to him.

For example, I was telling in the meeting - I was actually telling the interpreter that they have taken pics of me and I told – because I was not using the interpreter I just told – he asked me why did they take – it was a straightforward question, closed content question when he asked why did they take photos of you.  I told them that my cousins have come to visit me and they have just taken it as – because they are children, they have just taken it for fun.  So he was like “For fun?” like because usually when someone comes to visit someone they just take it like small people – small children just take it in a normal way but he was like “For fun?” and that was like – it is a closed thing to me wherein I cannot tell, without using any interpretation and without any support from my side and when I told – tried to explain to the member the amount of injuries I suffered he asked me how I was beaten.  I told him I was beaten for two to three days and I told him like when they hit – when one of the party member attacked me it was the violence he has shown on me is like a personal grudge even though I do not identify him.

He has totally told in the hearing that you mean it is a personal grudge wherein I told him that well I cannot identify him and I do not know him.  So he – the word – just because there was no interpretation like I could not – I was trying to be telling whatever I can so that he can understand straight away not using an interpretation, whatever small words I have used he has created a big emphasis.  That is all, your Honour, that is all I ‑ ‑ ‑

HER HONOUR:   Thank you.  Thank you very much.  Do you have submissions in reply, Mr Brown?

MR BROWN:   No, thank you.

THE INTERPRETER:   Excuse me, your Honour, he would like to say a few more things he said.

HER HONOUR:   Okay.

MZZCB:   I just wanted to ask you a quick question, your Honour.  Like with the references I have provided do I need to tell you what, according to me, I feel like – you have gone through everything.  Do I need to point – because I have seen their submissions, they have taken – they have chosen the ‑ ‑ ‑

HER HONOUR:   No, I have read all the reasons if that is what you are concerned about.

MZZCB:   No problem, thank you.

HER HONOUR:   Yes, thank you for that.

THE INTERPRETER:   Thank you, your Honour.

HER HONOUR:   On 26 September 2013, the plaintiff, a citizen of India, 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 28 September 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 more than 11 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 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 12 November 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 also contended by the first defendant that the application is an abuse of process and discloses no arguable case.  The first defendant submits that although the Court is empowered to enlarge time, no extension or 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 8 June 2009 as the holder of a Student visa.  A delegate of the first defendant refused the plaintiff’s application for a Protection (Class XA) visa, which refusal was affirmed by the Tribunal on 28 September 2012.  The Tribunal found that the appellant was not a credible witness and had not been truthful in relation to his experiences in India, his reasons for leaving India and his fears about returning to India.  The Tribunal found that the plaintiff would not be at risk upon return to India. 

The plaintiff applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.  On 17 May 2012, Judge Turner of the Federal Circuit Court dismissed the plaintiff’s application.  The plaintiff then appealed to the Federal Court.  On 30 August 2013, after refusing leave to raise new grounds of appeal as they had no reasonable prospects of success, Dodds‑Streeton J dismissed 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, which the Court is empowered to do when it is in the interests of justice to do so. In deciding whether or not to enlarge time, the Court may take into account any explanation for delay and a plaintiff’s prospect of success in the proceedings. The delay has been explained as the result of pursuing proceedings in courts below. Such an explanation is reason for refusing to enlarge time to permit the same cause of action to be relitigated in this Court.

The arguments advanced by the plaintiff in the application for an order to show cause are essentially the same as those advanced and dismissed in the courts below.  In oral submissions the plaintiff complained that he was unable to convey his message properly to the Tribunal because the hearing was by video conference, and advanced numerous complaints respecting the merits, including challenging the Tribunal’s findings about injuries and credibility.  The plaintiff also complained that the Tribunal failed to inform him of adverse findings, thus denying him an opportunity to respond.  These complaints were addressed, both in the Federal Circuit Court and in the Federal Court. 

The jurisdiction of the Federal Circuit Court to review Tribunal decisions is identical to the jurisdiction now sought to be invoked under s 476(1) of the Act. The grounds of review raised there are raised again in the current proceedings. Further, the present proceedings raise again the grounds advanced, heard and determined in the Federal Court. Accordingly, the plaintiff’s current application in the original jurisdiction of this Court to relitigate matters determined in courts below would be an abuse of process and liable to dismissal pursuant to r 27.09.4(c) of the Rules if it were to commence and continue.

It is not 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 resort to the judicial power of the Commonwealth and has not succeeded.  There is nothing in either the application or in oral submissions made today to suggest that the plaintiff plans to advance some novel or different basis for review beyond the grounds advanced, heard and dismissed in the courts below.

Now, Mr Brown, do you require an order to amend the title of the proceedings?

MR BROWN:   Thank you, your Honour, yes, please.

HER HONOUR:   So that it reads the first defendant is the Minister for Immigration and Border Protection.

MR BROWN:   That is right, your Honour, thank you.

HER HONOUR:   Thank you.  The orders of the Court are:

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

2.The plaintiff’s application for an order to show cause filed on 26 September 2013 is dismissed with costs.

Adjourn the Court.

AT 2.42 PM THE MATTER WAS CONCLUDED