MZZNK v Minister for Immigration and Border Protection & Anor

[2015] HCATrans 247

[2015] HCATrans 247

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M43 of 2015

B e t w e e n -

MZZNK

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 30 SEPTEMBER 2015, AT 9.56 AM

Copyright in the High Court of Australia

MZZNK appeared in person.

MS E. LATIF:   If the Court pleases, I appear for the first defendant.  (instructed by Clayton Utz Lawyers)

NELUM LIYANAGE, sworn as interpreter.

HER HONOUR:   Thank you.  You are the person referred to as MZZNK?

MZZNK:   Yes, your Honour.

HER HONOUR:   Unfortunately, because of the way in which the Act is drafted, I cannot refer to you by your own name, so I will call you “the applicant”.  Is that okay?

MZZNK (through interpreter):   That is okay.

HER HONOUR:   Right.  You have filed an application for an order to show cause?

MZZNK (through interpreter):   Yes.

HER HONOUR:   What do you wish to say to me about that application?

MZZNK (through interpreter):   The application I have handed over?

HER HONOUR:   Do you wish to say anything to me about that application?

MZZNK (through interpreter):   I feel actually I did not receive any justification from the previous court.

HER HONOUR:   Sorry, could you stand up just so I can hear you more clearly.

MZZNK (through interpreter):   Yes.  I feel actually I did not receive any justification from the courts – previous courts, even from the RRT. 

HER HONOUR:   Anything else you wish to say to me?

MZZNK (through interpreter):   My lawyer prepared so many information in my court case but, however, they have not looked at this all information when they give the decision. 

HER HONOUR:   Just so that I am clear, what you are saying to me is you gave a lot of information to your lawyer, the lawyer gave it to the Tribunal and to the court, but the court did not consider it properly.

MZZNK (through interpreter):   Yes, my Honour, RRT not consider about the matters including to my court case. 

HER HONOUR:   This is your opportunity to say anything else you wish to say to me.  Is there anything else you wish to raise?

MZZNK (through interpreter):   I see the incidents about a murder case and however the RRT explain I have not seen that case.  I see from my eyes then how they can pull as I did not see that incident.

HER HONOUR:   Anything else you wish to say?  Interpreter, you will need to interpret what he is saying to me, so let us just take it in bits.

THE INTERPRETER:   Yes.  To be honest, I did not understand what he said then, I just wanted to clarify it.

HER HONOUR:   All right.  The applicant, you will need to speak slowly.  You will need to speak in short sentences so the interpreter can tell me what you are saying.

MZZNK (through interpreter):   I give a report regarding to my cutting of my hand by myself.  I brought this report translated from recognised interpreters from over there.  Then from RRT says actually in the report there are no proper grammar included, so why they not concerning to translate this report again from the translator in this country?  From the beginning of the RRT session actually the person who conducted the case he looked at me as I did the wrong thing, I am not a good person.  From the beginning actually he look at me actually I did the wrong thing.  He or she did not justify everything from the beginning. 

How it could be happen because the RRT it is an independent institute and the Department of Immigration and Border Protection recognised as I enrolled with some political activities but from the RRT they said actually they cannot recognise as I enrolled with some political activities previously.  Then the RRT asked why you did not provide all the details to the Immigration Department, then I thought why I have to provide all the details to the Immigration Department. 

I left my family behind me.  I did not want to go back to my country because of this problem.  I want to stay in this country because I have a threat if I return back to my country.  Someone is waiting to hurt me.  Okay, I respect the Court and I need to request from this honourable Court please let me to appeal again to the RRT regarding this matter, and then RRT not explain about my case clearly in the report.  If you really need you can listen to the case I am involved with RRT then you can understand how they react for me.

HER HONOUR:   All right.  What I am going to do now is I am going to ask Ms Latif, who appears for the Minister, to explain to me what her position is in relation to your application.  Ms Latif is going to speak slowly, she is going to speak in short sentences, and my advice is that you take this pad and pen and you write down as you are going along the things that you wish to say in response to what Ms Latif tells me.  Then when Ms Latif is finished I will ask you what you wish to say in response to her and you can use your notes to recall what you wish to say.

MZZNK (through interpreter):   After the lady explain, then you are going to ask what am I thinking?

HER HONOUR:   Correct, and I find it easier when I am listening to somebody to write down my thoughts as I am going along.  That is why I have given you the pad and pen.  If you do not need it, it is okay.  Thank you.  Ms Latif.  Interpreter, you may sit, thank you.

MS LATIF:   Your Honour, there is one housekeeping matter I need to address you on and, in addition, if the Court believes it will be of assistance, I can provide greater context for my legal submissions to assist the plaintiff in understanding why the first defendant has reached the position that it has, that is, I can identify the legal framework for the grant of visas and challenging decisions about the grant of visas.

Your Honour, in respect of housekeeping, the first defendant makes an application to amend the name of the second defendant to “Administrative Appeals Tribunal”.  For the plaintiff’s benefit, it is the same Tribunal doing the same work but it has experienced a name change and I am instructed to seek leave to amend the name in order that the Court’s file be accurate. 

HER HONOUR:   The applicant, this is a formal matter, because they have changed the name of the Refugee Review Tribunal to the Administrative Appeals Tribunal.  It is just a name change, and so I propose to grant the order which does nothing more than change the name on the piece of paper that you filed from “Refugee Review Tribunal” in respect of the second defendant to the “Administrative Appeals Tribunal”. 

MZZNK (through interpreter):   What is the…..of the name?

HER HONOUR:   What is the what?

MZZNK (through interpreter):   What is the changes of the name?

HER HONOUR:   The name changed from “Refugee Review Tribunal” to “Administrative Appeals Tribunal”. 

MZZNK (through interpreter):   Do you mean did I change my name?

HER HONOUR:   No, no.  The government has made a decision to change the structure and move the Refugee Review Tribunal and merge it with the Administrative Appeals Tribunal, so it has changed its name.  It is a decision by the government.  It is entirely formal and does not affect your case.

MZZNK (through interpreter):   It is not my fault, is it?

HER HONOUR:   No, it is not your fault.  Thank you, the order will be made.  Yes, Ms Latif, let us move to the substance.

MS LATIF:   If the Court pleases.  In response to the application for an extension of time to file an application to show cause, the first defendant is opposed to the grant of an extension of time.  That opposition is a response to the significant delay in bringing the application and the procedural history of the matter, particularly the extent to which the same issues have already been the subject of judicial review.  When I say “issues” I am referring to the grounds for the show cause application identified in the applicant’s materials filed in this Court, and the applicant has touched upon some of those in oral submissions this morning.

MZZNK (through interpreter):   Sorry, I did not understand.

HER HONOUR:   The applicant has addressed, raised some of those issues this morning, being issues raised in the grounds set out in the show cause notice filed in this Court. 

MZZNK (through interpreter):   Please clarify further.

HER HONOUR:   So at the moment Ms Latif has identified two bases or two grounds of opposition.  The first is the significant delay in bringing this application to this Court and the procedural history – that is, the history of the matter from the time of decision all the way through till now.  One part of that procedural history is that the issues that have been raised in the

application to show cause in this Court have already been considered by other courts and some of those matters were addressed or raised this morning by the applicant in his oral submissions.  Do you understand now?

MZZNK (through interpreter):   It means – I am not quite sure, actually I am not quite clear about this statement you explain.

HER HONOUR:   Which bit do you not understand?

MZZNK (through interpreter):   You will understand if you find further information if you really need back from my country, then you can understand my honesty.

HER HONOUR:   I understand.  I want the applicant to listen to the points raised by Ms Latif and address those points because that is what you will need to address and you need to write out, so at the moment there are three points so far that Ms Latif has raised that you may wish to respond to.  Do you want me to go over those three points again?

MZZNK (through interpreter):   Yes, please.

HER HONOUR:   First – you should write these down:  first, significant delay in filing the application in this Court; two, the procedural history of the matter from the time of decision through to this application in this Court, in particular, the issues that are raised in the application to show cause have already been considered and determined against the applicant in other courts.

THE INTERPRETER:   This is in relation to the second point?

HER HONOUR:   The procedural history, correct.

MZZNK (through interpreter):   Yes.

HER HONOUR:   Thank you.  Ms Latif.

MS LATIF:   If the Court pleases.  Alternatively, the first defendant submits the show cause application should be dismissed as an abuse of process because the applicant is seeking to relitigate issues that have already been disposed of in earlier proceedings.  The first defendant relies upon the affidavit of Ms Wilde, affirmed on 8 July 2015 and filed with this Court on the same day. 

The first defendant identifies for the Court’s ease of reference that the Refugee Review Tribunal decision has been summarised in some detail in the Federal Court of Australia decision which appears at page 182 of Ms Wilde’s affidavit.  The first defendant further relies upon his written submissions dated 17 September and filed with this Court.  If I can take the Court to the affidavit of Ms Wilde, we have on at least two occasions served a copy on the applicant but in the event he does not have it with him today I have a copy to hand over so that he can follow the submissions.

MZZNK (through interpreter):   I have got them.

MS LATIF:   Your Honour, the procedural history that the first defendant relies upon is set out at paragraphs 3 to 10 of Ms Wilde’s affidavit, and it is that procedural history that the first defendant relies upon as one of its bases for opposing the grant of an extension of time.  Exhibit 4 which is identified at page 97 of the affidavit is the application for an order to show cause and supporting affidavit filed in the Federal Circuit Court.

I take the Court to these materials to make good the proposition that the procedural history supports a refusal of an extension of time.  I identify that at page 102 of the affidavit.  Would the Court like me to move on?  It may be of some benefit for the plaintiff to have – the applicant to have this context but I acknowledge that all these matters are set out in our written submission.

HER HONOUR:   Well, I understand that the point is that the procedural history demonstrates that the same issues are being raised again, but is there anything else you seek to get out of this procedural history?

MS LATIF:   The procedural history is relevant to demonstrating that the interests of justice would not be served by the grant of an extension of time.

HER HONOUR:   But that is a conclusion. 

MS LATIF:   Yes.

HER HONOUR:   What are the facts that you rely upon from that procedural history or you would seek to identify in that procedural history which is to support two propositions, as I understand it:  first, not in the interests of justice; second, already had the issues heard and determined.

MS LATIF:   We say that ‑ ‑ ‑

HER HONOUR:   That is to be interpreted, hang on, Ms Latif.

MS LATIF:   I beg your pardon.  The facts that we say that procedural history as evidenced by exhibits 4 to exhibit 8, or exhibit 7, supports findings that the Tribunal decision has been the subject of judicial review in the Federal Circuit Court.  The Federal Circuit Court decision was appealed in the Federal Court.  The grounds of review the applicant seeks to agitate in his show cause application are the same or substantively the same as those considered by the Federal Circuit Court and the Federal Court, and exhibit 8 demonstrates that the first defendant put the applicant on notice of the procedural and substantive issues arising in respect of his show cause application and identified that an application for special leave to appeal would procedurally be the most appropriate means of continuing to agitate disagreement with the decision which the applicant has elected not to take up.  We say they are findings that those aspects of the affidavit support.

In terms of legal submissions, the first defendant identifies that two timeframes apply. That is set by section 486A of the Migration Act which is reproduced in our book of authorities at tab 1, and that is set by the High Court Rules in respect of applications for certiorari and mandamus, and those Rules appear behind tab 2 of our book of authorities. I will hand a copy of the book of authorities to the applicant now.

The timeframes and how they apply are set out in paragraph 18 of the first defendant’s written submissions and the first defendant submits the delay in this case is significant.  The show cause application is one year and eight months out of time, the application for certiorari is one year and three months out of time, and the application for mandamus is one year and seven months out of time.

The principles for enlarging time under the Migration Act are addressed at paragraph 16 of the first defendant’s written submissions.  Essentially, the Court must be satisfied it is necessary in the interests of justice for time to be enlarged.  The principles for enlarging time under the Rules are set out at paragraphs 19 and 20 of the first defendant’s written submissions and the first defendant has adopted those factors as relevant to the exercise of discretion to enlarge time under the Rules as a convenient framework for analysis.

In essence, the first defendant submits that the length of delay is significant and, because the applicant has already had the Tribunal’s reasons for decision scrutinised by the Federal Circuit Court and the Federal Court of Australia, a strict application of the Rules limiting the time for seeking relief will not work an injustice in this case.  The first defendant further submits that a strict application of the Rules is in fact necessary to advance the interests of justice and identifies the relevant interests of justice as being the interest in finality of litigation, addressing Ex parte Marks behind tab 4 of the book of authorities at paragraph 15, and the public policy promoted by estoppel is addressed in Jackson v Goldsmith at tab 5 of the authorities by Justice Fullagar at page 466.

The first defendant further identifies the interests of justice in maintaining the integrity of the Court hierarchy and appeal process and submits in this case the applicant has exhausted his judicial review options and has elected not to pursue his appeal options. 

Given the extent of the scrutiny the Tribunal decision has already received, the interests of justice are not served by an extension of time and the refusal of an extension of time will not work an injustice and the first defendant otherwise relies upon its written submissions and the affidavit of Ms Wilde.  Subject to any questions from the Court, that is the basis upon which the first defendant is opposed to the grant of an extension of time.

HER HONOUR:   Thank you, Ms Latif.  The applicant, the Court’s powers, i.e. my powers, are limited.  As Ms Latif identified, you have two problems at least.  Problems you need to address – that is, the problems you need to talk to me about – are first, why there is such a delay in filing the application in this Court; second, why it is that the issues raised here in this Court should be considered when they have already been heard and determined in other courts; and, thirdly, why it is you chose to file the application for show cause now, so late, and not seek special leave to appeal from the decision of the Federal Court.  Could you please stand up just so I can hear you?

MZZNK (through interpreter):   You ask about it before ‑ ‑ ‑

HER HONOUR:   I am sorry, I did not hear that because someone coughed.  What did you say?

MZZNK (through interpreter):   You asked about the address before, I have not changed my address.

HER HONOUR:   Not address - I asked you about why it was you took so long to file the application in this Court, number one issue; number two issue, why it is that this Court should consider again matters that have already been heard and determined by other courts; and, three, why it is you did not apply for special leave to appeal from the decision of the Federal Court.  Now, that is a summary of the three issues that are principally put against you by the Minister.

MZZNK (through interpreter):   I came to this place looking after the justification for my case.  The case before – before took it because like in RRT they always not considered about my case.  I have given some evidences but however they not included in my case.  The evidences should be attached to my case, then how can I consider about this matter whether I got a correct justification for my case.

HER HONOUR:   Anything else you wish to say?

MZZNK (through interpreter):   I request from this Court please grant me another extension then I can explain everything again to the RRT.

HER HONOUR:   Anything else that you wish to say?

MZZNK (through interpreter):   That is all I want to tell but however I want to stay here because I am scared of my life and also there is a threat for my life.

HER HONOUR:   Have a seat please.  I propose to deliver some reasons for decision.  I will deliver them slowly and you will interpret them for the applicant. 

On 26 March 2015, the plaintiff, a Sri Lankan national, filed an application for an order to show cause seeking constitutional writs and related relief.  The plaintiff was and remains unrepresented.  The application for an order to show cause seeks writs of certiorari, prohibition and mandamus in respect of a decision of the second defendant, the Administrative Appeals Tribunal which was then known as the Refugee Review Tribunal, which I will define as “the Tribunal”.

The Tribunal affirmed a decision made by a delegate of the first defendant, which I will define as “the Minister”, not to grant the plaintiff a Protection (Class XA) visa under the Migration Act 1958 (Cth), which I will define as “the Act”. The plaintiff had applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. That application was dismissed by Judge Riley on 7 October 2014; see MZZNK v Minister for Immigration and Border Protection [2014] FCCA 2282. The plaintiff then filed a notice of appeal in the Federal Court of Australia from that decision.

On 13 March 2015, Justice Beach of the Federal Court dismissed that appeal; see MZZNK v Minister for Immigration and Border Protection [2015] FCA 217. The plaintiff did not make an application for special leave to appeal in this Court from the decision of Justice Beach. Instead, the plaintiff filed this application for an order to show cause seeking constitutional writs and related relief.

Section 486A(1) of the Act requires that an application to this Court for a remedy to be granted in the exercise of this Court’s original jurisdiction in relation to a migration decision be made to this Court within 35 days of the date of the migration decision. The Tribunal decision was made some 20 months before the present application to show cause was filed. The application for certiorari was one year and three months out of time, and the application for mandamus was one year and seven months out of time. The application to show cause was also filed outside the time for the filing of the application under the High Court Rules 2004. The plaintiff therefore requires an enlargement of time under section 486A(2) of the Migration Act and rule 4.02 of the High Court Rules.

In respect of an application for an enlargement of time to commence applications for constitutional relief, Justice McHugh in Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 at page 473 to 474 at paragraph 13 stated that in addition to considering the plaintiff’s prospects of success in the substantive application, the explanation for the delay was a relevant consideration and that a case would need to be exceptional before the time for commencing proceedings was enlarged by many months. In respect of delays of greater than one year, as in this case, his Honour stated:

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 proceedings in this Court. 

It is therefore convenient that I consider the plaintiff’s prospects of succeeding in his substantive application.  The plaintiff claims that the Tribunal’s decision and the decision of the Federal Court was made without jurisdiction or is affected by jurisdictional error.  In general terms, the plaintiff’s complaint is that the Federal Court erred in affirming the decisions of the Federal Circuit Court and the Tribunal in circumstances where the Tribunal allegedly failed to consider relevant considerations or materials, attached too much weight or insufficient weight to other considerations or materials, denied the plaintiff procedural fairness and questioned the plaintiff in a manner giving rise to an apprehension of bias. 

Each of the matters set out in the application to show cause repeats a complaint he made to the Federal Court which was considered and rejected by Justice Beach.  I have reviewed that decision and cannot identify any error.  In those circumstances, the plaintiff cannot establish an arguable case necessary for the grant of the relief he now seeks.  The grounds of review that have been raised in earlier proceedings that are now raised in the application to show cause proceedings have already been determined against him.

Even if, contrary to the view I have formed, the plaintiff has an arguable case for grant of the relief he seeks in this Court, which he does not, the plaintiff has not provided any good reason why the application for an extension of time to file the application to show cause should be granted, therefore given the scrutiny that the decision of the Tribunal has already received, adverse to the plaintiff, and the importance of finality in litigation, it is not in the interests of the administration of justice to make an order extending the time for the filing of the application to show cause. 

The orders I therefore make are:

1.The plaintiff’s application for an extension of time under section 486A(2) of the Migration Act is refused

2.The plaintiff is to pay the first defendant’s costs of the application.

Anything else, Ms Latif?

MS LATIF:   No, your Honour.

HER HONOUR:   Anything else from the applicant?

MZZNK (through interpreter):   I do know about the law but I request again please consider about my matter for the extension.

HER HONOUR:   I have considered it and I have issued my reasons for decision and they are final.  Thank you.

AT 11.02 AM THE MATTER WAS CONCLUDED