MZZVK v Minister for Immigration and Border Protection & Anor

[2017] HCATrans 27

[2017] HCATrans 027

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M111 of 2016

B e t w e e n -

MZZVK

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

Summons

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 15 FEBRUARY 2017, AT 9.46 AM

Copyright in the High Court of Australia

MZZVK appeared in person.

MR G.A. HILL:   Your Honour, I appear for the first defendant, the Minister.  (instructed by Sparke Helmore)

HER HONOUR:   Now, are you the plaintiff MZZVK, sir?

MZZVK:   M111/2016.

HER HONOUR:   M111?

MZZVK:   Yes.

HER HONOUR:   Have a seat please. 

MZZVK:   Thank you.

HER HONOUR:   The man who is sitting to your right is Mr Hill.  He appears for the Minister.

MZZVK:   Yes.

HER HONOUR:   Now, you have an application today?

MZZVK:   Yes, I already submitted an application.

HER HONOUR:   Do you wish to add anything to what you have submitted?

MZZVK:   No.

HER HONOUR:   Do you have a paper and pen?  I will get you one.  So for me – this is the way I find it easy to deal with it.  Mr Hill is going to stand up and he is going to tell me why it is that your application should be dismissed - should be rejected.

MZZVK:   Okay.

HER HONOUR:   I find it easier, rather than just to listen, to write down things that I do not like, things that I might want to say in response, and then when he is finished you will have an opportunity to tell me those things.

MZZVK:   Sure.

HER HONOUR:   Do you understand?

MZZVK:   Yes, I do.

HER HONOUR:   If you can do it without writing it down, good luck to you - I cannot.  That is why I am giving you the paper and a pen.

MZZVK:   Sure.

HER HONOUR:   All right.  Mr Hill.

MR HILL:   Thank you, your Honour.  Could I check – does the Court have the Minister’s submissions?

HER HONOUR:   I do and I have read them, thank you.

MR HILL:   Thank you.  Would your Honour mind if I checked that the plaintiff has the Minister’s submissions?

HER HONOUR:   Certainly, good idea.

MR HILL:   Your Honour, the background is set out in Part B, point 1.  Could I just emphasise some short points which your Honour will already appreciate?

HER HONOUR:   Yes, please.

MR HILL:   It is a protection visa application which has been refused by the delegate and then a tribunal and your Honour will have seen the plaintiff has challenged that refused decision in both the Federal Circuit Court, then the Federal Court. 

HER HONOUR:   Yes.

MR HILL:   In the Federal Circuit Court there was refusal to extend time because the application was without merit and in the Federal Court initially there was a dismissal for non‑appearance and then Justice McKerracher dismissed an application to reinstate the proceedings.  Now, if your Honour has the application to show cause, which is dated 24 August 2016, on page 2 of that document the relief refers to the second defendant’s decision which is the Tribunal, and the grounds refer to errors by the Tribunal, but also at the top of the grounds talk about the decision of the Federal Court having made a jurisdictional error.

HER HONOUR:   Yes.

MR HILL:   So for that reason, in the Minister’s submissions I have addressed both is it possible for the plaintiff to challenge the Tribunal’s decision directly and also is it possible for the plaintiff to challenge the Federal Court’s decision.  Turning to the Tribunal’s decision, this in Part B.2 of the Minister’s submission – the plaintiff needs an extension of time because the application to this Court is almost three years after that initial decision of the Tribunal and the Minister said there are two reasons why the applicant should not get that extension of time:  first, that the plaintiff is merely repeating the arguments that were considered in detail by the courts below.  So if your Honour still has the application to show cause, does your Honour see under “Grounds” it refers to:

The failure of the tribunal to make an express finding that the serious harm to which the applicant might be subjected . . . was for a convention reason –

That is dealt with in great detail by both the Federal Circuit Court and the Federal Court and rejected on the merits, even though those courts both made what you might call procedural decisions.  They have considered fully the merits of that argument.

That is the first reason for not granting an extension of time.  The second reason is a submission that the arguments are without substance and your Honour will have seen both the Federal Circuit Court and the Federal Court said well, on a proper construction of the Tribunal’s reasons it made an interest finding.  So the whole premise of the argument was not made out.  So even if there were some requirement to make a finding, a finding has been made.

Your Honour will have seen the application to show cause has a second argument which is the country information was not applied properly regarding the real chance of harm.  My submission is that is just to attack the merits of the Tribunal’s decision.  So that is the Minister’s reasons why the challenge – any challenge to the Tribunal’s decision has to be rejected because there needs to be an extension of time and there is no good reason to grant an extension of time.

If I could move then, your Honour, to whether the plaintiff can challenge the decision of the Federal Court.  To succeed in that challenge the plaintiff would have to show a jurisdictional error by the Federal Court and the first point is that the application to show cause does not assert any error by the Federal Court that complains about the Tribunal’s decision.  Your Honour, the reason I mention ‑ ‑ ‑

HER HONOUR:   Is that the answer or is it just an abuse?

MR HILL:   I make that argument too, your Honour, that it is an abuse to come to this Court to relitigate the arguments that have already been fully considered by the courts below.  Unless there is anything more that your Honour would be assisted with, that is the Minister’s submissions for why the application should be dismissed.

HER HONOUR:   Thank you.  Sir, do you wish to say anything in response?

MZZVK:   Yes, ma’am.

HER HONOUR:   Yes, please.

MZZVK:   First of all I went to Immigration Department for the refusal visa and they have rejected it without saying anything.  Then I went to RRT.  They have looked into my case properly and I am very thankful for that.  They asked me to relocate the location from north India to south India while I told them everything about India – how I can be found in India with my identity and stuff.  Then they had no idea what to do or not. 

Again, they just gave me a decision of relocation and time was gone and after that I applied for a tribunal court but there was serious gap which I do not think so makes – yes, it could be – makes a difference for the court but I still respect for that but it was only happen because of some calculation about the days and where my colleague Minister is saying about the serious harm so it is not a – it can be or not be but I am not a one who want to be a victim of the future.  There are so many things happening in India in a – in a caste system or in the religion system so we cannot describe that – how it is going to be or not.  That is all.

HER HONOUR:   Thank you very much.  Have a seat.   What I propose to do now is to read out my reasons for decision and then we will give you a copy of the orders.

On 8 January 2013, the plaintiff applied for a Protection (Class XA) visa.  A delegate of the first defendant refused that application.

The plaintiff applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision.  On 27 September 2013, the Tribunal affirmed the delegate’s decision.

On 4 November 2013, the plaintiff applied to the Federal Circuit Court of Australia seeking judicial review of the Tribunal’s decision.  As the plaintiff identified, that application was lodged three days out of time.  The application for an extension was dismissed on 29 August 2014.

On 23 September 2015, the plaintiff applied to the Federal Court of Australia seeking judicial review of the Federal Circuit Court’s decision.  On 20 November 2015, that application was dismissed for non‑appearance.  On 23 December 2015, the plaintiff applied to have that application reinstated, but that application was dismissed on 29 July 2016.

On 25 August 2016, the plaintiff applied to this Court for an order to show cause.  The plaintiff was and remains unrepresented.

The application for an order to show cause seeks:

(1)an order in the nature of the writ of prohibition preventing the first defendant (“the Minister”), his Department or its employees and agents from taking any further steps in reliance on the decision of the Tribunal;

(2)an order in the nature of a writ of certiorari in relation to the Tribunal’s decision;

(3)an order in the nature of the writ of mandamus that the matter be remitted to the Tribunal and the Tribunal give further consideration according to law; and

(4)an enlargement of time.

The plaintiff’s application for an order to show cause faces certain time limits: see section 486A(1) of the Migration Act 1958 (Cth) (“the Migration Act”) and rules 25.06.1 and 25.07.2 of the High Court Rules 2004 (Cth) (“the High Court Rules”). The Court may extend or enlarge these periods of time if it is satisfied that it is necessary in the interests of the administration of justice to do so: see Re The Commonwealth; Ex parte Marks (2000) 75 ALJR 470; 177 ALR 491; [2000] HCA 67 and section 486A(2) of the Migration Act.

The question in this case is whether it is in the interests of justice to extend the time.  Unfortunately, the answer is “no”.

First, the plaintiff has poor prospects of succeeding in his substantive application.

The grounds on which the relief is claimed was that there was jurisdictional error in the decision of the Federal Court as follows:

“a.The failure of the [T]ribunal to make an express finding that the serious harm to which the applicant might be subjected to in his home area was for a convention reason which amounted to error on the part of the [T]ribunal.  The country information was also not applied properly re the real chance of harm.

b.That an extension of time should be granted given the explanation provided in the affidavit and that it would be in the interests of justice that [the plaintiff] be given the opportunity of presenting [the plaintiff’s] case and furthermore, it does not cause any prejudice to any party involved in these proceedings.”

As is self‑evident, the principal complaint is that the Tribunal failed to make an express finding that the serious harm to which he might be subjected in his home area was for a reason covered by the Convention relating to the Status of Refugees 189 UNTS 137, as amended by the Protocol relating to the Status of Refugees 606 UNTS 267, and that the country information was not applied properly in assessing that harm.  The claims now advanced are substantially the same arguments considered and rejected by the Federal Court.  There is no identifiable legal error.

In addition, in relation to the application of the country information, the plaintiff does no more than seek to reargue the merits of the Tribunal’s decision.  That is impermissible:  see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6. Further, the plaintiff’s explanation for the delay in seeking relief in this Court does not assist. The length of the delay is inordinate, almost three years, and the explanation for the delay is inadequate. The plaintiff had a right to apply for judicial review of the decision of the Tribunal. That application was unsuccessful. The plaintiff then applied to the Federal Court. That application was unsuccessful. The fact that those applications were unsuccessful does not justify an order extending the time limit for applying for judicial review in this Court. Further, the grounds for relief raised in the application to show cause in this Court are the same as the grounds of review in the Federal Court. That relitigation is an abuse of process: see Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at 678 [13] – [14]; 297 ALR 560 at 563; [2013] HCA 22.

Having regard to those matters, 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. 

Rule 25.03.3(a) of the High Court Rules provides that, on the hearing of such an application, the Court may dismiss it. As these reasons have sought to identify, the application does not raise an arguable case necessary for the grant of the relief claimed.

The plaintiff’s application for an extension of time under section 486A(2) of the Migration Act is refused. The plaintiff’s application for an order to show cause filed on 25 August 2016 is dismissed with costs.

The orders I make are as follows:

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

2.The plaintiff’s application for an order to show cause is dismissed.

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

Anything else, Mr Hill?

MR HILL:   No, your Honour.

HER HONOUR:   Thank you very much for your appearance.

AT 10.02 AM THE MATTER WAS CONCLUDED