MZZZZ v Minister for Immigration and Border Protection & Anor

[2015] HCATrans 306

[2015] HCATrans 306

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M198 of 2015

B e t w e e n -

MZZZZ

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 24 NOVEMBER 2015, AT 9.38 AM

Copyright in the High Court of Australia

MR R.C. KNOWLES:   Your Honour, if it pleases the Court, I appear for the first defendant in this matter.  (instructed by Clayton Utz Lawyers)

HER HONOUR:   Could the matter be called outside please?  Could I have the interpreter sworn please?  Mr Interpreter, could you just explain to the applicant what I am doing please.

ARIYANAYAGAM AMIRTHANESAN, affirmed as interpreter.

HER HONOUR:   Are you the applicant referred to as MZZZZ in this matter?

MZZZZ (through interpreter):   Yes.

HER HONOUR:   Do you mind if I call you the applicant?

MZZZZ (through interpreter):   Yes.

HER HONOUR:   Thank you.  Now, this is your application?

MZZZZ (through interpreter):   Yes.

HER HONOUR:   You have seen the materials that have been filed by the Minister?

MZZZZ (through interpreter):   Yes.

HER HONOUR:   What is it you wish to say to me about your application?

MZZZZ (through interpreter):   My case has been rejected by the RRT, so after that I tried to organise a lawyer, a private lawyer ‑ in the Legal Aid.  So they advised me in May that they could not help me, they advised me to find another lawyer.  I do not remember exactly when, about two months ago they told me this.  After that it was very difficult for me to organise a lawyer.  After that there was no need for me to apply for a case, they postponed the case.  So after that I could not go to my case to the court and they rejected it. 

Later they stopped my work rights, so after that I could not afford to find a lawyer privately.  So after that through a Tamil associate and help I applied this case.  I expected that to be good and deliver a good judgment.  I

ask for a lot, that was true, but here they do not believe me.  Sri Lankan Government is not going to give any orders to that effect.  So this is my last attempt to obtain a good judgment.

HER HONOUR:   All right, what I am going to do is I am going to ask Mr Knowles, who appears for the Minister, to explain to me why your application should not succeed.  I will give you a piece of paper and a pen and I want you to write down the things that you wish to say in response to Mr Knowles.  Mr Knowles is going to speak slowly, and after Mr Knowles is finished you will have an opportunity to respond.  I find it is easier to write down the things that I want to say in response as I go along.  Your memory may be better than mine, so it is a matter for you.  But after Mr Knowles has finished you will have an opportunity to respond.  Do you have any questions?

MZZZZ (through interpreter):   He says he is unable to write in English.

HER HONOUR:   No, he can write in his own language and then he can tell you what is on the page and you can interpret back to me.

MZZZZ (through interpreter):   He wants me to write.

HER HONOUR:   All right.  Mr Knowles.

MR KNOWLES:   Thank you, your Honour.  Your Honour should have the Minister’s outline of submissions dated 18 November this year, as well as an affidavit of Mr Vincenzo Murano dated 10 November this year.

HER HONOUR:   Do you have those?

MZZZZ (through interpreter):   Yes.

HER HONOUR:   Thank you.

MR KNOWLES:   May I take the affidavit as read, your Honour?

HER HONOUR:   Yes.

MR KNOWLES:   Thank you, your Honour.

HER HONOUR:   Just one moment.  You will have to interpret please.

MR KNOWLES:   Your Honour, the plaintiff is a Sri Lankan citizen who applied for a protection visa and that application was refused by a delegate of the Minister.  He then applied to the Refugee Review Tribunal for review of the delegate’s decision and the Tribunal affirmed the delegate’s decision to refuse to grant a protection visa to the plaintiff.  He then sought judicial review before the Federal Circuit Court of the Tribunal’s decision.  In that proceeding he advanced arguments which were similar to those which are now put before this Court.  The Federal Circuit Court dismissed the application and found that there was no jurisdictional error affecting the Tribunal’s decision.

The plaintiff then sought to appeal from the judgment of the Federal Circuit Court but was out of time and so needed to apply for an extension of time to the Federal Court in which to bring that appeal.  The Federal Court refused to grant an extension of time and in doing so found that the Federal Circuit Court was correct to dismiss the judicial review application.  Like the Federal Circuit Court, the Federal Court considered arguments which are similar to those which the plaintiff now puts to the High Court.

Perhaps if I can go to those arguments, which are set out in the application for an order to show cause - there are two broad grounds advanced in support of the relief sought.  The first ground is directed to the Federal Court and alleges that the Federal Court’s judgment was made without jurisdiction.  When one has regard to the particulars to that ground, however, it is apparent that in substance the complaints seem mostly directed to the conduct of the Tribunal.  Insofar as it might be said that the Federal Court was obliged to deal with an integer of a claim to be owed protection obligations that was, in truth, the function of the Refugee Review Tribunal to assess claims in respect of those obligations and not the role of the Federal Court. 

Insofar as it is alleged that the Tribunal failed to deal with claims put forward by the plaintiff to be owed protection obligations, those claims have been considered by the Tribunal and the reviewing courts have found that they were addressed by the Tribunal.  In particular, exhibited to the plaintiff’s affidavit at exhibit TT‑4 are the reasons for judgment delivered by Justice Logan of the Federal Court.  At paragraph 15 to 16 of those reasons Justice Logan considered the same argument and rejected the argument.  For instance, at paragraph 15 it was stated that:

The difficulty about this proposed appeal ground is that, as was recognised by the Federal Circuit Court, the Tribunal has comprehensively dealt with each of the integers.

A similar finding appears in paragraph 16.  In the Minister’s submission no error attends those findings of the Federal Court.  That is the first ground that appears in the application for an order to show cause.

In the second ground, the plaintiff alleges that the Tribunal denied him procedural fairness.  The substance of the complaint is that the Tribunal

failed to put to him for comment general country information.  It is not conceded that the Tribunal did not put country information to the plaintiff but, in any event, as was found in the Federal Circuit Court and the Federal Court, it did not have an obligation to do so. 

In this regard, section 424A of the Migration Act 1958 deals with the provision of adverse information for comment, but subsection (3) of that provision expressly provides that section 424A does not apply to information in the nature of general country information. Again, returning to the reasons for judgment of Justice Logan, that was, in essence, what was found at paragraph 13. In particular, then at 14, the court there stated that:

information which is generic or which was provided by the applicant during the course of the hearing of his visa application is not information which needs later to be put to an applicant by the Tribunal.

In these circumstances, the Minister submits, firstly, that this proceeding has no reasonable prospect of success and ought to be dismissed pursuant to section 25A of the Judiciary Act 1903. That provision relevantly provides that the High Court may give summary judgment where it is satisfied that the plaintiff in this case has no reasonable prospect of successfully prosecuting the proceeding.

Further, and insofar as the application seeks judicial review of the Tribunal’s decision, the application is out of time and, in the Minister’s submission, no extension or enlargement of time should be granted.  No proper explanation for the delayed commencement of the proceeding has been given and the proceeding’s prospects of success are, as I have already submitted, poor.

Finally, and in any event, the Minister submits that the application constitutes an abuse of process because, in essence, the plaintiff seeks to relitigate claims that were made in earlier proceedings before the Federal Circuit Court and the Federal Court.  For those reasons, the Minister submits that the application for an order to show cause should be dismissed and the proceedings should otherwise be dismissed with costs.  Unless there is anything further, your Honour.

HER HONOUR:   Thank you, Mr Knowles.  You have heard what Mr Knowles has said.  Is there anything you wish to say in response to those matters?

MZZZZ (through interpreter):   Yes.  They rejected the reasons I first gave.  Later I gave more affidavit documents more, more documents about how I was affected.  All those were original documents.  We are Tamil

people.  The government there is Sinhalese, so Sinhalese Government does not do documents for us.  So documents we cannot get there easily.  If you get forged document then that is not good…..issues. 

I suffered a lot.  My dad suffered in 1990.  I gave the documents about 1995.  My dad was kidnapped by unidentified people.  In 1990 during the disturbances the military kidnapped our relatives and they took them and burnt; my uncle saw those things.  Then RRT accepted that, then later I was in Colombo in hiding.  RRT says they did not believe that.  In those times I could not get documents.  I, myself, was under fear, hiding, hiding, then how can I find documents?

So the thing is, lawyers they speak high legal matters.  I do not understand what the lawyers speak.  I can understand only a few of the things lawyers speak.  One or two only I understand.  I am not a knowledgeable person to argue against the lawyers.  I had my question up to yes or no only.  What I say now, I came to this country.  I did not do any harm, any bad thing.  Totally in…..I did not have opportunity to present my case.  I had made two or three errors after which there was no chance to rectify those things.  So after that they asking for documents, how can I find documents?  I cannot do everything, it is very hard.  Even if I say they do not believe what I say, what can I do?  So I do not know what to say, so you have to make a good judgment.

So what is typed there, I had my immigration…..so I cannot read and understand what is written.  So they write a lot.  To understand this I have to get another person to read and explain me, and even then I could not get the full understanding.  I expect a good judgment from you.  If I go to my country there is no safety for me.  Now I am living here with my friend’s help.  So you are learned, please give me a good decision.

HER HONOUR:   All right.  I shall deliver my reasons now.  I will pronounce them; I will say them slowly, and the interpreter will interpret them for you.  Understand?

MZZZZ (through interpreter):   Yes.

HER HONOUR:   On 2 September 2015, the plaintiff, a citizen of Sri Lanka, filed in this Court an application for an order to show cause seeking constitutional writs and related relief.  The plaintiff was, and remains, unrepresented in relation to that application.  The content of that application is important.  The application for an order to show cause seeks writs of prohibition, certiorari and mandamus in respect of a decision made on 13 January 2014 by the second defendant, then known as the Refugee Review Tribunal, affirming the decision of a delegate of the first defendant made on 28 February 2013 not to grant the plaintiff a Protection (Class XA) visa under the Migration Act 1958 (Cth) (“the Act”).

The application to show cause was filed outside the time for the filing of the application pursuant to section 486A of the Act and rules 25.06.1 and 25.07.2 of the High Court Rules. The plaintiff requires an enlargement of time under both the Act and the Rules. Before turning to that application it is necessary to set out what has occurred since 28 February 2013 when the decision was made by the delegate.

The following facts and matters were set out and recorded in an affidavit filed by the plaintiff and documents exhibited to that affidavit.  The plaintiff applied to the Tribunal for a review of the delegate’s decision.  The plaintiff attended the hearing before the Tribunal on 20 May 2013.  On 13 January 2014 the Tribunal affirmed the delegate’s decision not to grant the plaintiff a Protection (Class XA) visa. 

On 17 February 2014, the plaintiff applied to the Federal Circuit Court to review the decision of the Tribunal.  The plaintiff filed amended grounds for judicial review on 2 October 2014.  Four grounds of review were listed, but two were substantive.  Ground 1 read:  “The decision of the Tribunal is affected by jurisdictional error”.  The plaintiff’s complaints were that the Tribunal and the court failed to deal with an integer of his claim as to whether or not there was a well‑founded fear of persecution based upon his membership of an alleged particular social group, namely, young Tamil male from the north/east of Sri Lanka.  In particular, the plaintiff complained that whilst the Tribunal had considered the heightened risk profile arising from being a Tamil from the east, both his age and gender and the fact that he was a boat person did not receive consideration in the context of him being a member of a particular social group.

The second particular relied upon as a ground for jurisdictional error was that the Tribunal had not properly considered whether there were substantial grounds for believing that as a foreseeable consequence of the plaintiff being removed from Australia to Sri Lanka there is a real risk that the plaintiff or the applicant would suffer significant harm.

I now move to ground 2.  That ground was that the decision of the Tribunal was affected by error as a result of a denial of procedural fairness.  In short, his complaint was that the Tribunal had failed to provide to him particular country information regarding Sri Lanka.  The plaintiff was unrepresented at the hearing before the Federal Circuit Court and on 4 December 2014 the application for judicial review was dismissed by Judge Turner.  In his reasons for judgment Judge Turner found:

the Tribunal did not fail to take into account the plaintiff’s claims to be owed protection obligations on account of his status as a young Tamil male from the east of Sri Lanka –

and, secondly –

the Tribunal did not fail to comply with its obligations to afford the plaintiff procedural fairness.

The plaintiff did not file notices of appeal with the Federal Court of Australia in relation to the decision of the Federal Circuit Court but instead wrote to the first defendant and asked him to exercise his discretion under section 417 of the Act. In April 2015, the first defendant wrote to the plaintiff, informing him that he refused to exercise his discretion.

On 30 April 2015, the plaintiff filed an application in the Federal Court for an extension of time to file a notice of appeal in respect of the orders made by Judge Turner.  On 3 August, the plaintiff’s application for an extension of time to file the notice of appeal was dismissed by Justice Logan of the Federal Court of Australia.  The plaintiff asked for a copy of the decision but was not given one.

On 1 September 2015, the plaintiff attended the Federal Court Registry and obtained a copy of the reasons of decision of Justice Logan dated 21 August 2015 that had been revised from the transcript.  Those reasons for decision stated that in relation to proposed ground 1 dealing with alleged jurisdictional error the matters sought to be raised by the plaintiff on appeal, contrary to the plaintiff’s contentions, were in fact addressed by the Tribunal and, further, were dismissed because the outcome was a conclusion reasonably open to the Tribunal after considering, amongst other things, the credibility of the plaintiff.

In relation to proposed ground 2, alleging a denial of procedural fairness, the reasons for decision stated that the plaintiff’s complaints were contrary to the way in which section 424A of the Act had been construed and that further, contrary to the plaintiff’s contentions, the matters relied upon by the plaintiff had in fact been addressed by the Tribunal.

Finally, as I have noted earlier, on 2 September 2015 the plaintiff filed the application for an order to show cause in this Court.  The plaintiff’s application for an order to show cause faces the certain time limits I have referred to earlier.  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 Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 and section 486A(2) of the Act.

The plaintiff had a right to apply for judicial review of the decision of the Tribunal.  The plaintiff’s application was unsuccessful.  The plaintiff then filed an application for an extension of time to file a notice of appeal in the Federal Court.  The fact that those applications were unsuccessful does not justify an order extending the time limit for applying for judicial review in this Court – see Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at paragraph 13.

There are two further relevant matters ‑ the plaintiff’s prospects of success on the substantive application and the plaintiff’s explanation for the delay in seeking relief in this Court.  In the application to show cause the plaintiff in substance repeats the grounds set out in the amended grounds of review filed in the Federal Circuit Court, to which I have earlier referred, and which were repeated in the Federal Court of Australia.  I have reviewed the plaintiff’s complaints, the delegate’s decision and the decisions of the Tribunal, the Federal Circuit Court and the Federal Court.  There is no identifiable error.  The application does not raise an arguable case necessary for the grant of the relief claimed.

The plaintiff’s challenges to the various decisions do not support the relief claimed.  Moreover, even if contrary to the view just formed the plaintiff has an arguable case, the plaintiff has not provided any good reason why the application for an extension of time to apply for the constitutional writs should be granted.  For those reasons, 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 as follows:

1.The plaintiff’s application for an extension of time under section 486A(2) of the Act and rule 4.02 of the Rules 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 Knowles?

MR KNOWLES:   No, your Honour.

HER HONOUR:   Thank you, you are excused from the Bar table.

AT 10.40 AM THE MATTER WAS CONCLUDED