MZZZJ & Anor v Minister for Immigration and Border Protection & Ors

[2015] HCATrans 42

[2015] HCATrans 042

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M129 of 2014

B e t w e e n -

MZZZJ

First Plaintiff

MZZZK

Second Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

Application for order to show cause

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 25 FEBRUARY 2015, AT 9.53 AM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   Would you call the matter outside please, Madam Registrar, thank you.

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Thank you, Madam Registrar.

MR R.C. KNOWLES:   Your Honour, if it pleases the Court, I appear for the first defendant in that matter as well.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you, Mr Knowles.  I do have the outline and affidavit, thank you.

MR KNOWLES:   Yes, thank you, your Honour.  The Minister relies on the outline in pursuit of the Minister’s position that the matter ought to be dismissed with costs on the basis that, among other things, it discloses no reasonable prospect of success.  I do not know whether your Honour wishes me to elaborate on any of the matters in the outline.  I am happy to do so if it would be of assistance.

HIS HONOUR:   All that is sought in this application, as it appears, is certiorari to quash Justice Middleton’s order, am I correct?

MR KNOWLES:   The application – that is so – only goes to the decision, as it is called, of the Federal Court and, yes, your Honour is correct in that regard.

HIS HONOUR:   Which was an order refusing an extension of time?

MR KNOWLES:   That is so, although I do note – sorry, your Honour – that the fourth paragraph under the relief claimed in the application does refer to an order in the nature of mandamus requiring the Tribunal to review according to law the decision of the delegate of the Minister to refuse a protection visa.  So I stand corrected actually, in addition to seeking certiorari to quash the order of Justice Middleton, there is also an application for an order in the nature of mandamus in respect of the Refugee Review Tribunal’s conduct of its review.

HIS HONOUR:   I see, thank you very much, Mr Knowles.

This is an application for an order to show cause by which the plaintiff seeks certiorari to quash an order of the Federal Court of Australia, constituted by his Honour Justice Middleton on 11 November 2014, whereby he dismissed an application for extension of time to apply for review of the orders of the Federal Circuit Court, in turn dismissing an application for review of the Tribunal which confirmed the Minister’s decision to refuse the plaintiff’s application for a protection visa.  The application also seeks an order in the nature of mandamus requiring the Tribunal to review, according to law, the decision of the Minister’s delegate to refuse the protection visa on 17 July 2013.

His Honour Justice Middleton dismissed the application before him under section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 due to the applicant’s failure to appear. The Minister, however, on this occasion seeks that the matter be dealt with on the merits rather than simply upon the basis that the applicant has also failed to appear before me. As appears from the reasons of the delegate and from the reasons of the review tribunal, the Minister refused the application because there was no evidence at all to support the applicant’s claim for apprehended persecution.

There were also discrepancies in the applicant’s evidence, including that when he applied for a Subclass 676 visa he answered that he had travelled outside India to Germany, Italy and France and said that he held a Bachelor of Commerce degree and had been proprietor of a valve business.  Later, however, in the course of this application he said that he held a Bachelor of Arts degree, not a Bachelor of Commerce, that he was skilled in ceramics and not valves and had never travelled outside of India.

The Federal Circuit Court gave as its reasons for dismissing the application for review that neither of the two claimed bases for judicial review were tenable.  They were, first, that the applicant wanted to adduce further evidence as to the merits, that evidence being unspecified, and such he said that he would need further time to obtain it from India; and, secondly, that he did not get a letter inviting him to appear before the Tribunal.  The Federal Circuit Court held on the evidence that notice had been given.

On application to Justice Middleton, it was contended that the Federal Circuit Court had erred by having regard to adverse information not disclosed to the applicant but nothing was offered in support of that contention. The result, it seems to me now, as it appeared to both the Minister’s delegate and to the review tribunal, as well as to the Federal Circuit Court, is that these applications for review and, in particular, this application to this Court have no reasonable prospects of success. Accordingly, the application will be dismissed pursuant to section 25A(2) of the Judiciary Act 1903 with costs.

AT 10.00 AM THE MATTER WAS CONCLUDED