MZZFZ v Minister for Immigration and Border Protection and Anor

[2014] HCATrans 222

[2014] HCATrans 222

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M47 of 2014

B e t w e e n -

MZZFZ

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for an order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 OCTOBER 2014, AT 9.43 AM

Copyright in the High Court of Australia

MZZFZ appeared in person.

MR B. PETRIE:   If the Court pleases, I appear for the first defendant.  (instructed by Clayton Utz Lawyers)

HER HONOUR:   Yes.  Well, now you have filed an application for an order to show cause seeking constitutional writs and you have asked for an extension of time.  Would you like to address me now in relation to your application?

MZZFZ:   Sure.

HER HONOUR:   You may come up to the rostrum so that your voice is amplified.

MZZFZ:   Thank you.

HER HONOUR:   Thank you.

MZZFZ:   I am sorry for my English, but I will try to speak as much as I can.  The reason why I did not put in an interpreter because she was not delivering the message what I was about to tell - the beginning itself.  She just conveyed like 60 per cent of the message.  She did not go through everything.  That is the reason I said no, I do not want to get an interpreter, but I am trying to speak myself.

HER HONOUR:   Yes.

MZZFZ:   So please try to understand my English.  I am sorry.

HER HONOUR:   Yes.

MZZFZ:   Okay, the first thing.  When it comes to RRT, I filed the application about my safety and, to be honest, RRT member, he just scared me in the beginning itself and he confused me in the beginning itself, so I could not explain, I could not express my feeling, what I was actually going through, and when I was about to show everything I did not know anything about this.  After RRT I thought maybe I can explain to the further courts, but even further courts they were asking me – it is about only for RRT, it is not about your matter, it is not about my protection and everything.

So the first thing, I am so scared of the questions, whatever RRT member is going to ask me, and they made me nervous with all the questions, whatever the member asked, and the questions I felt like which are not even related to my application and my problem.  The first question he asked me about the politics and I said, like, I am one of the members ‑ I am one of the supporters of BJP, which is the National Party in India, and he said ‑ like he asked me, “On what date was it exactly you have elections?”  I clearly mentioned, I specifically said, I am not into the politics, but I am a supporter of BJP Party. 

The reason is my brother‑in‑law.  He is a member of that party, so that is the reason why I am interested in that, I mean, I supported the BJP.  But he asked me, “What is the date exactly?”  I said, “I do not know the dates, I am not really sure about it because I am not into politics.”  But he clearly said that, “When you do not know the date and everything how can you say that you are a supporter of BJP?”, which is – I felt like there is no meaning in that thing, because everyone can support a party, but you do not have to be a member or you do not have to be exactly specific – specifically you do not have to know the dates and everything. 

I felt it is not fair for me, I felt it is unfair for me.  On that day itself when he asked me that question, that is when he confused me.  I was in deep depression.  The other thing, when he said, “Why did you apply this protection visa now, why did you not do that when you were here since five years?”  I also specifically mentioned about this.

I came with a student visa and I have gone through everything legally.  I have certificates, I studied, and something happened, something did not go really well from my side.  That is the reason I lodged this application, because now if I go back I am scared of my life and there is a big threat for me so I cannot go. 

When I said ‑ he did not listen to me clearly when I said like, “This is the reason why I lodged this after six years”.  He did not listen to my things.  He said, “No, this application I cannot accept”.  I also showed there is some proofs, some like physical proofs, and I asked him some time to give me to show that I can give some evidence, like copies for those and everything.  But he did not let me.  He did not even give me any time.  That is one of the reasons.

I could not get a chance to explain anything from my side, and the other thing is when I said I do not have a safety - when he asked me a question about, “Why do not you stay in some other place in India, because India has got 24 states - why do not stay in some other state?” I also mentioned I do not speak Hindi because I cannot – I can understand but I cannot speak.  Moreover, in India, the national language is Hindi, but I belong to a place which is just a local language, language is Telugu, where no other state speaks that language.

Also I specifically mentioned, if I go to some other place I could not get a job, I could not survive anywhere, even I still have a threat because my own brother, when he was living in – out of the state in Chennai, which is…..state, he got a problem with that as well because he has got a problem where he was scared and he got some prank calls from the people who have threat. 

So I specifically mentioned, no, I cannot stay anywhere because the first thing is, like, the language barrier, and the other problem is though I can stay somewhere, Muslims are everywhere in India.  It is not only one place like where I stayed, but India is totally dominated or occupied with a lot of Muslims and I cannot stay any other place.  He did not listen to that thing as well.

And the other thing is that was the first time when I appealed to the courts.  I have never been to courts any time and I do not have any advocates or lawyers from my side.  I was in a deep depression with my visa, my condition and everything, but still at the time itself when he questioned me in a different scenario, in a different confusing way, I was totally confused and I could not get a chance to talk. 

I just request you, if I get a chance again, I can explain.  I can give evidence and everything.  My brother‑in‑law is still living here.  He was a doctor.  He is living in Brisbane.  If you want I can give some evidence through him as well.

HER HONOUR:   Did you appear in front of Justice Tracey of the Federal Court as you are now appearing in front of me?

MZZFZ:   Yes, ma’am.

HER HONOUR:   Did you tell Justice Tracey what you are now telling me?

MZZFZ:   No, that is what I am saying.  It is because this is the first time – that was the first time and I was literally nervous to go in front of the courts to speak in front of member like you, but now I do not know.  This is the last option I have.  That is the reason I am talking.  Even the last previous courts, in front of a magistrate, in front of the courts, which I have gone through, I did not give anything because I was scared.  I could not talk at all.  But now this is the only opportunity I have, I can talk. 

That is the reason I believe in this.  I came forward and I am talking everything.  That is the reason I did not even ask for an interpreter.  I am so scared because she is not delivering the message.  Though I say something she was – on the date so far when I was going in front of the magistrate, the second courts, I said in front of magistrate, you are not delivering the message.  You are saying something which is not what I am expecting. 

Also I have been here since two and a half – three years with this visa, with this protection visa.  I did not have work rights.  I am still surviving.  There is only one thing I want to mention.  I am still surviving without any money, without any work rights and depending on my friends and my family.  I know how much – and you can understand that it is not easy to survive here, affording and living – surviving, depending on someone.  Still I am surviving because I am so scared to go back to India.  I still have a threat.  That is what I want to say, ma’am.

HER HONOUR:   Is that all you want to say?

MZZFZ:   Two more points, ma’am.  Sorry.  I just want to ask one more question to RRT member.  Under what grounds he said there is no convenient reason, and it is at part B, is the harm feared for a Convention reason.  He said he did not find any credible evidence.  When I asked him literally, I want to show some evidence, I need some time, and he said I could not find any evidence that you have threat in India.  So this thing I cannot accept.  It shows in part B assessment of protection obligations.

The other thing is is the fear well founded?  This is one more question I want to ask RRT member.  When you do not know about India - he just simply followed internet data, whatever he got through, but that is not reality.  I told him, this is not the thing.  You have just seen this internet stuff where anyone can upload or download things but this is not the true thing because I know what I am facing threat.  But he did not listen to that thing either.  That is all, your Honour.

HER HONOUR:   Thank you very much.  Yes, Mr Petrie.

MR PETRIE:   Your Honour, the first defendant opposes the application for an order to show cause and seeks that it be dismissed with costs.  The bases on which those orders are sought are set out in the first defendant’s written submissions.  Those submissions should be read with an affidavit sworn by me, dated 25 September 2014.  Perhaps, just as a preliminary matter, your Honour, I note at paragraph 10 of my affidavit, there is a statement there which says:

The Plaintiff did not appear –

before Justice Tracey in the Federal Court proceedings.  That statement should be struck out, your Honour, because that is not correct.

HER HONOUR:   So you want to amend that affidavit by deleting that?

MR PETRIE:   Yes, your Honour.

HER HONOUR:   Yes, thank you. 

MR PETRIE:   Put simply, your Honour, the plaintiff requires an extension of time to make the application to this Court under section 486A of the Migration Act, and under rules 25.06.1 and 25.07.2 of the High Court Rules. In my submission, he has not demonstrated a sufficient reason for the granting of any enlargement of time.

The plaintiff has already had resort to the judicial power of the Commonwealth unsuccessfully before the Federal Circuit Court and the Federal Court.  The grounds raised by the applicant in the application to this Court are precisely the same as those that were determined by the Federal Circuit Court and the Federal Court, with the exception of the plaintiff’s statement today that he felt confused and overwhelmed during the hearing before the Refugee Review Tribunal.  The plaintiff’s allegation may be taken to be one perhaps of apprehended bias on the part of the Tribunal.  Beyond that ground, in my submission, the plaintiff is essentially seeking impermissible merits review of the basis of the Tribunal’s decision.

In response to the plaintiff raising, as I articulate, possibly a ground of apprehended bias today, I refer your Honour to the principle of Anshun estoppel which was articulated in this Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. A copy of that decision is behind tab 7, your Honour, of the authorities which have been provided.

In my submission, your Honour, to the extent the plaintiff is alleging today that the Tribunal’s decision was affected by apprehended bias, such a ground was properly the subject matter of the proceedings that were before the Federal Circuit Court and/or the Federal Court.  The plaintiff had the opportunity to raise those grounds on those occasions but he did not do so.

It is a discretionary consideration for this Court as to whether or not he now be permitted to raise that ground but, as I have said, the plaintiff has not, in my submission, made out a case as to why he should be allowed to do so now.  Beyond any questions your Honour may have, I rely on the written submissions of the first defendant and seek an order that the application be dismissed with costs.

HER HONOUR:   Yes, thank you, Mr Petrie.  Just give me a moment.

On 10 June 2014, the plaintiff, a citizen of India, 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 18 January 2013. The application included an application for the necessary extension of time within which to file the application. The plaintiff made his application more than a year outside of the 35‑day time limit for applications to the High Court imposed by section 486A(1) of the Migration Act 1958 (Cth) (“the Act”). The application was also made outside of the time limit for applications for certiorari and mandamus imposed by rules 25.06.1 and 25.07.2 of the High Court Rules 2004 (Cth) (“the Rules”).

On the material filed in this Court it appears the delay in filing this application relates to the time it took for the applicant to seek judicial review in the courts below.  The first defendant opposes the application and asks that it be dismissed with costs.  The second defendant, the Tribunal, has filed an appearance submitting to any order the Court may make, save as to costs. 

The first defendant acknowledges that this Court has the power to grant an extension of time under both the Act and the Rules, but submits that no extension should be granted where, as in this case, the plaintiff seeks to invoke the original jurisdiction of the High Court in respect of a decision after already seeking judicial review in the Federal Circuit Court of Australia and the Federal Court of Australia.

The plaintiff represented himself this morning.  He said that he was confused before the Tribunal and could not express his feelings and explain himself properly.  He also said he suffered depression at the time.  He claimed that the Tribunal did not listen to him, most particularly in respect of the issue of relocation and stated that the Tribunal does not know the reality of India. 

The plaintiff applied to the Federal Circuit Court for judicial review of the Tribunal’s decision on 11 February 2013.  On 22 October 2013, Judge Burchardt dismissed the plaintiff’s application.  The plaintiff appealed to the Federal Court on 6 February 2014 and appeared before Tracey J on the hearing of that appeal.  On 15 May 2014, Tracey J dismissed the plaintiff’s appeal.  The plaintiff made no application to this Court for special leave to appeal from that decision. 

Subject to one exception 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.  In essence, the plaintiff again seeks to ventilate merits issues in respect of the Tribunal’s decision.  The one exception is that today the plaintiff has raised complaints about not being listened to by the Tribunal, although this matter is not mentioned in the written materials filed before the Court.  As the plaintiff has represented himself, perhaps this should be taken as a complaint about apprehended bias.

The Tribunal’s reasons are comprehensive.  No persuasive reason has been given by the plaintiff as to why the complaint he makes today was not raised in either of the appeals below.  The plaintiff suggested he was confused and/or intimidated by legal proceedings.  However, today he presented his complaints about the merits of the Tribunal’s decision confidently and fluently.  To the extent that it is unreasonable for the plaintiff to have refrained from raising this issue, and as there is nothing in the Tribunal’s comprehensive reasons which supports the complaint, the plaintiff is estopped from raising the complaint now:  Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

There is nothing in the materials filed before this Court to suggest that the plaintiff plans to advance some new or different basis of challenge beyond the grounds heard and determined in the Federal Circuit Court and in the Federal Court and the plaintiff’s oral submissions of complaints reiterate, substantially, complaints about the merits, especially in respect of relocation.

In all the circumstances, it is appropriate to dismiss the plaintiff’s application.  The order of the Court is the plaintiff’s application for an order to show cause filed on 10 June 2014 is dismissed with costs.

You are excused from further attendance.

AT 10.18 AM THE MATTER WAS CONCLUDED