Plaintiff M18-2006 v MIMIA

[2006] HCATrans 210

[2006] HCATrans 210

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M18 of 2006

B e t w e e n -

PLAINTIFF M18/2006

Plaintiff

and

THE HONOURABLE AMANDA VANSTONE, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 27 APRIL 2006, AT 11.21 AM

Copyright in the High Court of Australia

PLAINTIFF M18/2006 appeared in person.

MR C.J. HORAN:   If the Court pleases, I appear for the Minister.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, Mr Interpreter, I think we have to either swear or affirm you.

MANOJ KUMAR DANDENIYA ARACHCHI, affirmed as interpreter:

HIS HONOUR:   Mr Horan, you have an application to terminate the proceeding summarily, do you not?

MR HORAN:   Yes, your Honour.  The summons is dated 11 April 2006 and there is an affidavit of Bryan Wee sworn on 10 April 2006.

HIS HONOUR:   Yes.  Mr Interpreter, would you be good enough to tell the plaintiff that the Minister is asking for an order that his action be dismissed.

THE INTERPRETER:   Your Honour, he has been in touch with the Asylum Services Centre in the city and he has been advised by them that at this point of time there is no solicitor available for him to be present with him in the courts but there will be somebody available by next month for him to assist in the case if the – in June, because there is another matter in the Federal Magistrates Court – the same matter.  He has another matter in front of the Federal Magistrates Court is my understanding, your Honour, in June.  Because of that, due to that reason, they will not be available to appoint another solicitor for him for the same matter in the High Court today.

HIS HONOUR:   Yes.  Now, Mr Horan, taking that as in effect an application for adjournment, can I go back a stage and understand where we are at.  Do I understand from Mr Wee’s affidavit that there is an application to the Federal Magistrates Court that remains undetermined?

MR HORAN:   Yes, your Honour.  I think that was recently commenced.

HIS HONOUR:   What do you say should happen with this proceeding in this Court while we have this pending proceeding in the Federal Magistrates Court?

MR HORAN:   The difficulty that the plaintiff faces in the Federal Magistrates Court is that each of the applications seeks review of a primary decision which is a delegate’s decision that was merits reviewable by the Refugee Review Tribunal and the Migration Act limits the jurisdiction of the Federal Magistrates Court in relation to primary decisions.  Ordinarily that leaves only this Court with jurisdiction to review those decisions and, in addition, restricts the ability of this Court to remit those proceedings to either the Federal Magistrates Court or the Federal Court.

So the plaintiff has been invited to discontinue the proceedings in the Federal Magistrates Court but those proceedings will not be directly affected by the outcome of today’s application in this Court.  In relation to these proceedings, they should be, in my submission, dealt with on the basis that the Federal Magistrates Court proceedings are beyond jurisdiction so that this is the only forum available to the plaintiff to challenge the decision of the delegate.  Having said that, the plaintiff requires an extension of time, the application having been filed within the 84‑day period under ‑ ‑ ‑

HIS HONOUR:   Just before you come to these time limit issues, do I read Mr Wee’s affidavit aright as disclosing that relief has previously been sought, both in this Court and elsewhere, directed to the Migration Review Tribunal?

MR HORAN:   Yes.

HIS HONOUR:   Now, is that decision, the Tribunal’s decision, a review of the delegate’s decision which is the subject of the present proceeding?

MR HORAN:   No, your Honour.

HIS HONOUR:   That is a different thing?

MR HORAN:   The delegate’s decision was to refuse to grant a protection visa to the plaintiff.

HIS HONOUR:   I see.

MR HORAN:   That was made on 13 August 1997.

HIS HONOUR:   There was a special needs relative application as well?

MR HORAN:   Yes.  So effectively the intervening period of approximately 8½ years has been taken up by the plaintiff’s application for a special need relative visa and his attempts to seek merits review and then judicial review of the refusal of that visa.  Having exhausted that application, he now returns to commence proceedings for the first time to challenge the delegate’s decision.  However, he failed to seek merits review of that decision at the time when it was available and has delayed over eight years before seeking to agitate issues in relation to the delegate’s decision.

HIS HONOUR:   Now, he says the Resource Centre either may or possibly will give him help in the Federal Magistrates Court but, perhaps unsurprisingly, will not give him support for two concurrent proceedings.  Why should I not let the Federal Magistrates Court proceeding go to whatever fate it has – you say it is a fate readily determined and means that he is out of court there – and see then whether the questions about operation of time limits might not be agitated in this Court with both sides represented.

MR HORAN:   Yes, your Honour, only that, as in the previous application, there is no question that the plaintiff requires some form of extension of time on any view.

HIS HONOUR:   But unlike some other applications, the intervening period was rather more focused upon special need relatives visas rather than repeated applications to obtain the protection visa which is the subject of this proceeding, is it not?

MR HORAN:   In my submission, that is certainly no weaker a circumstance calling for refusal of any extension of time that is sought.

HIS HONOUR:   I understand you say it is no weaker, but it is at least different.

MR HORAN:   It is different, but what it reveals is that the plaintiff elected not to pursue his claims to protection and then spent a substantial period of time pursuing another avenue.  Now, of course, being eight years ‑ ‑ ‑

HIS HONOUR:   I hear what you say about notions of election, Mr Horan, but it is open to the view that there might be an air of unreality about saying of people in the position of this plaintiff that he elects between competing remedies.  That is simply a point of view, you understand.

MR HORAN:   Even accepting that, your Honour, given the period that has elapsed, it remains open to the plaintiff to seek the exercise of the Minister’s discretion to allow a further protection visa application to be made if there are substantial matters relating to the Refugees Convention

which remain at the present time rather than seeking to review a decision which was directed to a situation at the time of decision eight years ago.

HIS HONOUR:   Do not answer this if it would for a moment embarrass you or your client – as I say, do not answer it if there is even the hint of it.  My understanding was, at least at one point in the administration of the Act, that such applications would ordinarily be considered only if there were no pending proceedings in the courts.  If you felt able to inform me about the present state of administration in the Act, that may be of assistance but, as I say, do not embark on those waters if you feel you should not.

MR HORAN:   I do not know the answer to that question.  I do not believe there was ever a universal approach, although, as your Honour points out, there was perhaps a tendency towards one particular outcome.  In any event, in my submission, these proceedings have no substantial prospect of success and have no substantial prospect of ever calling for the exercise of a discretion to extend time, given the length of the time and the absence of any serious question being raised by the application as to why it is that the delegate’s decision is said to be beyond jurisdiction.

As I say, the plaintiff has other avenues at an administrative level, rather than by way of judicial proceedings, if he seeks to maintain the claim to protection under the Convention but, in my submission, it is not an appropriate case in which an extension of time would be granted and there is no utility in adjourning this matter off to be dealt with at some subsequent time because nothing is going to change, apart perhaps from the possibility that the plaintiff may obtain some legal assistance but that that would not in the circumstances be of any assistance to the plaintiff, given the lack of any serious prospect of obtaining any relief on this application.

HIS HONOUR:   On 22 February 2006 the plaintiff filed an application for an order to show cause why relief should not be granted in respect of a decision of a delegate of the Minister which it appears was made as long ago as July 1997.  This is, as far as I am able to determine, the first application that the plaintiff has made to a court for judicial review of that decision.  He did not apply for review of the decision by the Refugee Review Tribunal; rather, between July 1998 and November 2005 the plaintiff has been concerned with his application for a change in circumstances (residence) (class AG) subclass 806 visa on the basis of being a special need relative of his brother and subsequent applications he has made first to the Migration Review Tribunal and subsequently for review of that decision.

The plaintiff, in addition to commencing proceedings in this Court, has commenced a proceeding in the Federal Magistrates Court seeking judicial review of the decision of the delegate that was made in 1997.  The Minister would contend that the Federal Magistrates Court has no jurisdiction in that matter and has invited the plaintiff to discontinue it.  This the plaintiff has not done.

The matter comes before me today on application of the Minister for orders summarily dismissing the proceeding on a number of grounds, including a ground that the application for extension of the time in which to apply for an order to show cause should be refused.  The Minister would contend that the relevant time limit is to be found in the Migration Litigation Reform Act 2005 (Cth) as applied to the present proceeding in accordance with the transitional provisions contained in Part 2 of Schedule 1 to that Act, particularly items 41 and 42. The Minister would further contend that the time limits fixed by the Migration Litigation Reform Act 2005 supersede the earlier provision made in the High Court Rules 2004 fixing times within which application may be made for orders to show cause why certiorari or mandamus should not issue.

The plaintiff now seeks the adjournment of the present application.  He seeks an adjournment essentially on the basis that he would wish to obtain legal advice.  He has sought the provision of advice from the Asylum Seekers Resource Centre but that body has indicated to him that it feels unable to provide him with assistance in this matter, at least while his proceeding in the Federal Magistrates Court remains pending.

The issues that arise in considering the Minister’s application for summary dismissal of the proceeding are such as would benefit from their agitation by parties who are represented on both sides of the record.  If it were possible for representation to be made available to the plaintiff, whether through the pro bono systems administered by the Victorian Bar or otherwise, it would be of assistance to the Court in any further consideration of the present matters.

The course of events having taken the unusual path which they have in this matter where the decision which the plaintiff would seek to challenge is very old but the intervening period has been occupied with his pursuit of another visa and remedies connected with that, coupled with the availability of possible administrative steps of the kind outlined by counsel for the Minister in the course of discussion of the matter earlier today, combine to compel the conclusion that the proceedings should stand over for further consideration.

As I say, on that further consideration there would be advantage if the plaintiff were to be represented, for that may lead to a closer joinder of issues between the parties than would be possible where the Minister alone is represented.

The course I would propose to follow is to order that the matter stand out of the list generally to be refixed on either side giving not less than seven days written notice to the opposite party and the costs of today would stand reserved.  My present inclination is that notice to refix the matter would be better not given before the disposition of the proceedings in the Federal Magistrates Court, but that is no more than an indication of the present inclination of my mind and the Minister’s representatives are not to take that as any final determination barring them from relisting the matter for further consideration when the position may be capable of clearer articulation than now it is.

If, of course, those representing the Minister felt able to supply a transcript of today’s proceedings to the plaintiff with a view to his making that available to such pro bono organisations as may be able to provide him with counsel on the relisting of the matter, there would be advantage in doing that.  Again, lest it be misunderstood, I do not give the Minister any direction to that effect.  I simply indicate that there may be advantage to be gained in pursuing that path.  Indeed, were the plaintiff to be represented, it may be that the parties would come to the view that the matter could be relisted sooner than otherwise might be the case.

For the moment the order is that the proceedings stand out of the list generally to be relisted on not less than seven days written notice to the opposite party.  The costs of today will be reserved.

Mr Interpreter, would you be good enough to explain to the plaintiff two things:  (1) I have adjourned this case; (2) I have said it would be a good thing if he can get someone to represent him.  He should get hold of the transcript of today’s proceedings and take that to the organisations that may be able to help him.  They will see what we have said today and that may help him get a representative, but in the meantime the case is adjourned and he will be notified of when it is coming on again.

Mr Horan, is there anything else that you consider I should have the interpreter specifically say to the plaintiff other than those matters I have said?

MR HORAN:   No, your Honour.

HIS HONOUR:   Thank you, Mr Horan.  Yes, thank you for your attendance.

AT 11.49 AM THE MATTER WAS ADJOURNED