Plaintiff C5/2015 v Minister for Immigration and Border Protection & Anor

[2015] HCATrans 200

[2015] HCATrans 200

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C5 of 2015

B e t w e e n -

PLAINTIFF C5/2015

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE SECRETARY, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Defendant

Directions hearing

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

AT PERTH BY VIDEO LINK TO CANBERRA

ON TUESDAY, 18 AUGUST 2015, AT 12.30 PM (WST)

Copyright in the High Court of Australia

MS M. BARLOW:   I appear for the plaintiff.  (instructed by the plaintiff)

MS T.L. WONG:   I appear for the first and second defendants.  (instructed by Clayton Utz Lawyers)

HIS HONOUR:   Yes.  Now, Ms Barlow, some orders have been proposed by the defendants.  What course do you wish to take?

MS BARLOW:   Your Honour, the representative for the defendants and I have been discussing the consent orders for over a few days now.  We have been unable to agree.  The main contention between us is that I am of the view that the Court has before it sufficient information to decide whether to accept the application out of time.  Counsel for the other side would prefer, according to the document that was filed today, to set down dates for hearing over an extended period of time but only on the question of whether an extension of time will be granted.

HIS HONOUR:   Yes.  Well, I think one way of dealing with that is to take the approach, which I think Justice Hayne took in Plaintiff M13, and that is to hear the application for the extension of time but hear all the argument that you would make on the substantive application, in any event, at the same time.

MS BARLOW:   That has been foreshadowed to me by the counsel for the other side today, your Honour.  However, we would perhaps ask whether you – if that were to be the case, whether you would be inclined, the Court would be inclined, to make an interlocutory order.  Our plaintiff is in very dire circumstances.  He does not have a bridging visa.  He is unlawful.  If there is going to be an extension of time for the hearings to be heard may the Court make an interlocutory order to provide him with a bridging visa for that period?

HIS HONOUR:   I do not think I can direct the Minister to issue a bridging visa for that period but, on the other hand, we can try and make sure that the hearing comes on fairly quickly.  But in the meantime I do think – looking at the actual show cause application, it really does not specify the jurisdictional errors which you say would warrant the grant of the relief which you are seeking and I think some attention will have to be paid to that in order to crystallise the matters before the Court.  We are not – and I have looked at your submissions and we are not here, of course, just to review factual findings or the approaches to the evidence taken by the delegate.  The question is one, at least in a formal sense, you recognise, of the identification of jurisdictional error.

MS BARLOW:   Your Honour, we have made submissions on the point of jurisdictional error.  We are aware that a lot turns on that.  Is the Court asking for a more substantial submission on those jurisdictional errors?

HIS HONOUR:   No, I am asking you to specify the grounds on which relief is sought by reference to asserted jurisdictional error.  In the application itself, which was filed on 20 May, we just have a statement of “The grounds on which relief is claimed are”, and then there is some irrelevant reference to the Refugee Review Tribunal.  As I understand it, the basis upon which – having regard to your written submissions – the matter is brought to this Court is that you are seeking a decision to quash that of the delegate so that you can, in effect, have a fresh consideration by a delegate and, if you are unsuccessful before the delegate, then applying for review, merits review, by the Refugee Review Tribunal, or I think that has now been folded into the AAT.

MS BARLOW:   Yes, your Honour.

HIS HONOUR:   That is the plan, is it not?

MS BARLOW:   Yes, that is the plan.

HIS HONOUR:   Well, it depends critically upon your identifying jurisdictional error on the part of the delegate.

MS BARLOW:   Yes.  We have made such a submission already, your Honour, but what I am asking is is that not therefore what the – the affidavit that we have provided, outlining jurisdictional error, is that not sufficient for the Court?

HIS HONOUR:   I want you to crystallise the jurisdictional errors that you assert and to put them into your application as the grounds of the application.  That is what I am suggesting that you need to do.  There is a rather discursive five paragraphs under the heading “The grounds on which relief is claimed are”.  Now, the grounds on which relief is claimed, as I understand it, are intended to be that the delegate’s decision was vitiated by certain jurisdictional errors.

MS BARLOW:   Yes, your Honour.

HIS HONOUR:   What I want you to do is to crystallise, with precision, the jurisdictional errors which you assert because they are the grounds on which you are claiming relief and to ‑ ‑ ‑

MS BARLOW:   Yes, your Honour.  I thought I had already done that.

HIS HONOUR:   Not in the application.

MS BARLOW:   I see.

HIS HONOUR:   If you see the decision record that purported to refuse the protection visa contains significant and multiple jurisdictional errors.

MS BARLOW:   Yes.  One that I can think of just, you know, by example, is that the complementary protection questions were not correct and the conclusions on complementary protection were not correct.

HIS HONOUR:   Yes.  Well, I am not asking you to formulate them on your feet now.  What I will do is give you a certain amount of time, maybe seven or 14 days, whatever you require, to file an amended application for an order to show cause, and the amendment would be under the heading “The grounds on which relief is claimed are”.  What you need to do then is to identify – not to give me a great screed but to identify, with precision, the jurisdictional errors which you assert infected the decision of the delegate because ultimately, as I understand it, that is all we are concerned with here apart from the leave question.

MS BARLOW:   I understand, your Honour.

HIS HONOUR:   Yes.

MS BARLOW:   Yes, thank you very much.  May it please.

HIS HONOUR:   Now, how long would you need to file an amended application?

MS BARLOW:   I should be able to do that very reasonably quickly, your Honour; perhaps one week.

HIS HONOUR:   Seven days sufficient, is it?

MS BARLOW:   Yes, I think so.

HIS HONOUR:   All right.  Now, do you have any difficulty with the second defendant being removed as a defendant to the proceeding?

MS BARLOW:   Yes, your Honour, I do, for reasons that perhaps I have – that I would not have described in my applications or submissions because at that stage I was not aware that the other side would want the second defendant removed.  There are questions that arise as to the relationship between the second defendant and the Refugee Review Tribunal.  There are questions that arise as to the relevance of the second defendant to the migration agent and the Migration Agent’s Assistance Scheme under which the migration agent was working.

HIS HONOUR:   What does any of that have to do with the question whether the delegate’s decision was infected by jurisdictional error?

MS BARLOW:   No, it is a separate aspect, your Honour.  You see, the problem in this case arose because the migration agent failed to apply to the Refugee Review Tribunal with ‑ ‑ ‑

HIS HONOUR:   I understand that, but my understanding is that you are seeking to quash the decision of the delegate refusing the plaintiff’s protection visa application; that is item 1 in the relief claimed.  So the question is what did the delegate decide and was the delegate’s decision infected by jurisdictional error?  What happened in relation to the Refugee Review Tribunal and the migration agent does not seem to have anything to do with that.

MS BARLOW:   Tangentially ‑ ‑ ‑

HIS HONOUR:   I am not interested in tangentially.  It has to be a question which is relevant to whether or not the delegate’s decision was vitiated by jurisdictional error.

MS BARLOW:   The actions of the migration agent had no relationship to the decision that is vitiated by jurisdictional error.

HIS HONOUR:   Yes.

MS BARLOW:   The only responsibility of the migration agent was that he, acting on behalf of the Department, failed to lodge the application in time, thus precluding an opportunity for my client, the plaintiff, to be heard.

HIS HONOUR:   Yes.  Well, that may just go to the question of your extension of time application.  It does not go to the question of the validity of the delegate’s decision.

MS BARLOW:   It does not go to the validity of the delegate’s decision, I agree.  However, my intention was to submit that it goes to the question of natural justice ‑ ‑ ‑

HIS HONOUR:   Affecting what?  Affecting whose decision?

MS BARLOW:   Well, affecting the circumstances for the plaintiff.  Not going to a decision, it is a question of the plaintiff having been denied an opportunity for that decision by the Department to be reviewed.

HIS HONOUR:   Yes, but that is a separate issue from the question whether the delegate’s decision was invalid for want of ‑ ‑ ‑

MS BARLOW:   Yes, your Honour.  Yes, they are two separate issues, but that is the problem with our case.  We have two separate distinct issues.  One ‑ the first issue is the fact that the plaintiff has not been afforded an opportunity to have the decision reviewed.  The second is that the – well, you could put them the other way around, I guess, but two issues.  One is the decision of the delegate has jurisdictional error.  Secondly, the plaintiff has not been afforded an opportunity to have those jurisdictional errors examined, if you will.

HIS HONOUR:   Well, they are not examined by the AAT, are they, or the RRT, because that is merits review.

MS BARLOW:   Okay, let me rephrase that.  The plaintiff, in all of the circumstances, has not had an opportunity to have a review of his protection visa application.

HIS HONOUR:   Well, what part of your relief has any bearing on that contention?

MS BARLOW:   The relief sought is probably not based on that aspect of the plaintiff’s circumstances.  The relief ‑ ‑ ‑

HIS HONOUR:   Well, then it is not before me.

MS BARLOW:   I beg your pardon?

HIS HONOUR:   Then it is not before the Court, and I do not understand what relief you would seek in relation to that matter.  You have come to this Court because no other court has jurisdiction to entertain ‑ ‑ ‑

MS BARLOW:   Exactly.

HIS HONOUR:   ‑ ‑ ‑ an application for jurisdictional error by the primary decision‑maker.  That is the position, as I understand it, and that is what we are here for.

MS BARLOW:   Yes, your Honour, that is correct.  But we seek that decision to be quashed, and/or the decision be revisited, and/or ‑ ‑ ‑

HIS HONOUR:   I understand all of that.  I do not want to be distracted by red herrings about the question of what the migration agent did and whether you missed out on an opportunity thereby to have the decision reviewed by

the RRT.  The reason you are here is because you missed out on that opportunity and you are seeking an extension of time to challenge the decision of the delegate.

MS BARLOW:   That is one way of phrasing it, yes.

HIS HONOUR:   All right.  I have got difficulty seeing any other.  But what I will do, I will give you time to consider your position and just look at the application itself in terms of the grounds.  Now, if you can see that there is some way other than relevance to the extension application itself of the decision, or the failure of the migration agent to lodge with the Refugee Review Tribunal within the relevant date, or that may be a matter going to the extension of time and I think it is in your affidavit material in support of your application, is it not?

MS BARLOW:   Yes, your Honour.

HIS HONOUR:   But it does not go to the merits of the delegate’s decision; that is something which is anterior ‑ ‑ ‑

MS BARLOW:   No, no, it does not.  There are two separate views.  There are two separate issues.

HIS HONOUR:   Well, you can say that until the cows come home, but the fact is that there is no relief which is relevant to that contention sought on your application.  So, I want you to think carefully about that aspect of it – maybe get some other advice because otherwise you may be wasting everybody’s time.

MS BARLOW:   I do not wish to waste the Court’s time, your Honour.

HIS HONOUR:   Okay.

MS BARLOW:   We are here because there was no other option open to us.

HIS HONOUR:   I understand that, and that is what I am trying to focus on.  All right, now, I will hear from Ms Wong just in terms of the orders I should make.  Ms Wong?

MS WONG:   Your Honour, the first and second defendants seek that the matter be set down for the hearing of the extension of time application and at that point it will be appropriate, of course ‑ ‑ ‑

HIS HONOUR:   Why should we bifurcate the extension of time and the actual merits?

MS WONG:   The merits will be considered as part of the extension of time application, your Honour, in accordance with the test set down for that type of relief.  I have had regard to the decision that your Honour referred to of Justice Hayne in Plaintiff M13 of 2011 and in that case his Honour saw fit to consider the extension of time application and then, if appropriate, grant the relief sought by the plaintiff in that matter.  We would be content for that approach to be adopted in this proceeding as well.

HIS HONOUR:   All right, so the matter will therefore proceed as though it were a hearing but with the question of the extension of time to be wrapped up in the general determination?

MS WONG:   Yes, that would be a suitable course, your Honour.

HIS HONOUR:   Yes.

MS WONG:   Aside from that, the orders sought are for a proper timetable to be put in place to ensure that the matter is ready to proceed on that date.  The first and second defendants would agree that it would be appropriate for an order to be made for the plaintiff to file an amended application within seven days.  If that order was made the first order in the orders proposed by the defendants could stand, namely, that the first defendant file and serve any evidence and written submissions on or before 15 December 2015.  We would not seek any further extension of that time.

Aside from that, I have heard what your Honour has had to say regarding the second order, that the second defendant be removed as a defendant to the proceeding, and we do not press that order at this time.

HIS HONOUR:   Yes.  It might be best to see just what comes out of Ms Barlow’s reconsideration of the application.

MS WONG:   Most certainly, your Honour.

HIS HONOUR:   All right, let me just formulate some orders now.

MS WONG:   Your Honour, I am hesitant to interrupt, however, it has occurred to me that if the plaintiff is to file an amended application it might be appropriate for submissions to be put on at that time as well by the plaintiff.

HIS HONOUR:   I am putting that into the order already, Ms Wong.

MS WONG:   Perfect.  Sorry, your Honour.

HIS HONOUR:   It occurred to me, actually, that I should give Ms Barlow until 1 September.  I just want to make sure that she has adequate time to consider the issues that I have raised.  Ms Barlow, if I do that then the question I just want to get from Ms Wong is as to whether or not that makes any difference to the proposed time limit for her filing and serving evidence.

MS WONG:   I believe it does, your Honour.

HIS HONOUR:   Well, you would want the 22nd then.

MS WONG:   Yes.  Well, there is a period of absence that I have after the 15th for a week, so we would then, regrettably, request an additional two weeks.  We would not be certain what the volume of the ‑ how many grounds would be raised in the amended application.  It may be time consuming to respond.

HIS HONOUR:   Well, are you the only one on the case?

MS WONG:   Well, I do have an instructing solicitor, your Honour, but, yes, I am the only barrister briefed.

HIS HONOUR:   The orders will be as follows:

1.The plaintiff is to file and serve any amended application and any further written submissions by 1 September 2015.

2.The first defendant is to file and serve any affidavit evidence and written submissions on or before 29 September 2015.

3.The hearing of the plaintiff’s application for an extension of time be expedited and be set down on a date to be fixed by the Court and argued as to the merits on the substantive application.

4.Costs of today in the cause.

Now, Ms Barlow and Ms Wong, what I suggest you do, when I have risen, in the next few days, one of you – probably you, Ms Barlow, I think – initially should make contact with the Court, perhaps initially with Mr Hanna, my associate, or he can let you know who to contact, with a view to exploring a date on which the matter can be heard and we will try and make that as early as possible in October, subject to the other sittings of the Court.  Is there anything further?

MS BARLOW:   Just a question as to whether you would provide for the plaintiff to prepare submissions in reply to the defendants.

HIS HONOUR:   Yes, you can do that, and I would suggest you do that within seven days.  So we will insert another order ‑ any written submissions in reply – that will be order number ‑ we will make 2, 2.1, and this can be 2.2 – any written submissions in reply to be filed and served by ‑ ‑ ‑

MS BARLOW:   7 October?

HIS HONOUR:   No, I was thinking seven days after – we do not want to delay this.  That is why I am trying to get it on.  If we look at 29 September – yes, the next – so that will be 6 October, I think.

MS BARLOW:   6 October.  That looks right.

HIS HONOUR:   Thank you.  That will be by the 6th – yes.

MS BARLOW:   6 October.  There is just one more thing, if the Court will permit me to ask.  Is there anything at all that can be done today to assist the plaintiff by way of interlocutory order?

HIS HONOUR:   Well, there has been no application for an interlocutory order and I am not sure on what basis an interlocutory order would be made.  You would have to make that application.  The problem is that at the moment, as I understand it, the plaintiff is in immigration detention.  Is that right?

MS BARLOW:   No, the client is living in the community - the plaintiff.  He has no income and no Medicare assistance.  He lives on ‑ ‑ ‑

HIS HONOUR:   I see.  So you want to change his class of bridging visa?

MS BARLOW:   Well, the – yes, exactly.  The applicant – well, he has no bridging visa at all.  He is unlawful in the community and he is very much at risk, and he has no income and his friends are covering the rent for him.  He has Red Cross vouchers on a monthly basis and Companion House provides moral support and food vouchers for him.  Now, the interesting thing is that there is an application ‑ ‑ ‑

HIS HONOUR:   Well, hang on – just a minute, Ms Barlow.  This is not a matter which the Court can get into.  It seems to me it is a matter that you should take up with Ms Wong and that maybe, having regard to the directions I have given, the Department may be in a position to do something, but that is a matter for them.  It is not a matter on which I can make an order at this stage.  Okay?

MS BARLOW:   Thank you.  Yes, may it please the Court.

HIS HONOUR:   All right, the Court will now adjourn.

AT 12.58 PM THE MATTER WAS ADJOURNED