Plaintiff M28/2014 v Minister for Immigration and Border Protection & Anor

[2014] HCATrans 223

[2014] HCATrans 223

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M28 of 2014

B e t w e e n -

PLAINTIFF M28/2014

Plaintiff

and

THE HONOURABLE SCOTT MORRISON MINISTER FOR IMMIGRATION AND BORDER PROTECTION OF THE COMMONWEALTH OF AUSTRALIA

First Defendant

CHRISTOPHER SMOLICZ SITTING AS THE REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for an order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 OCTOBER 2014, AT 10.18 AM

Copyright in the High Court of Australia

MR B. PETRIE:   May it please the Court, I appear for the first defendant.  (instructed by Clayton Utz Lawyers)

HER HONOUR:   Thank you, Mr Petrie.

MR PETRIE: Your Honour, notwithstanding the plaintiff’s non‑appearance today, the first defendant does seek to proceed pursuant to rule 13.03.02 of the High Court Rules.

HER HONOUR:   Yes.

MR PETRIE: In particular, the first defendant seeks orders that the application for an order to show cause be dismissed with costs. In support of the application for those orders, the first defendant has filed an affidavit affirmed by Mr Vincenzo Murano on 8 July 2014 and filed with the Court. In essence, your Honour, the plaintiff seeks to challenge the decision of the Refugee Review Tribunal made on 16 August 2012. It is, therefore, significantly out of time for the purposes of an application for an order to show cause to this Court. Although the plaintiff has not sought an extension of time he, nevertheless, requires one under section 486A of the Migration Act and 25.06.1 and 25.07.2 of the Rules.

In my submission, your Honour, the plaintiff has not demonstrated, and has not attempted to demonstrate, why time should be enlarged.  There is nothing exceptional, in my submission, about the matter such that the Court could be satisfied that an extension is warranted.  With the exception perhaps of grounds 1 and 5 of the application for an order to show cause, I submit that the substance of the plaintiff’s grounds were considered by both the Federal Circuit Court and the Federal Court in other proceedings that are set out in the affidavit of Mr Murano.

In respect of ground 1 of the application for an order to show cause to this Court, I refer your Honour to exhibit VM‑5 of the affidavit of Mr Murano which contains a copy of the delegate’s decision that the plaintiff complains of, and I note, your Honour, that there is, in fact, no part B to the delegate’s decision and my submission, therefore, is that this ground is essentially nonsensical.

In relation to ground 5, the plaintiff complains of unreasonableness, although he has not provided any particulars of why he says the Tribunal’s decision is so unreasonable that no reasonable decision‑maker could have arrived at the same conclusion.  To the extent he does raise that ground before this Court, your Honour, I submit that it was, in any event, properly the subject matter of the proceedings before the Federal Circuit Court and the Federal Court and is, therefore, captured by the doctrine of Anshun

estoppel as articulated by this Court in Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589.

Further, I would submit, your Honour, that to the extent he does now seek to raise that additional ground, this application would constitute an abuse of process having already had the opportunity to raise these grounds before the Federal Circuit Court and the Federal Court.  For these reasons, your Honour, and the reasons that are elaborated upon in the first defendant’s written submissions, the Minister seeks that the application be dismissed with costs.

HER HONOUR:   Thank you.  Just one question, Mr Petrie.  Is there anywhere in these materials any particulars given of the grounds 1 and 5?  I mean, I have not been able to locate any so I am checking with you whether you have been able to locate any.

MR PETRIE:   No, your Honour, I have not.  The only place in which it appears, that I am aware of, is in the application for an order to show cause.

HER HONOUR:   Yes, thank you. 

On 22 April 2014, the plaintiff, a citizen of India, filed an application for an order to show cause seeking constitutional writs and related relief in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 August 2012.  By that decision, the Tribunal affirmed a decision of the delegate of the first defendant not to grant the applicant a Protection (Class XA) visa.

The plaintiff made his application to this Court more than a year outside of the 35‑day time limit for applications to the High Court imposed by section 486A(1) of the Migration Act 1958 (Cth) (“the Act”). The application was also made outside of the time limit for applications for certiorari imposed by rule 25.06.1 of the High Court Rules 2004 (Cth) (“the Rules”). The Court has jurisdiction to enlarge time under section 486A(2) of the Act. The plaintiff makes no necessary application in his written material filed with the Court.

The first defendant submits that the application should be dismissed today with costs.  There was no appearance by the plaintiff when the matter was called on for hearing.  The second defendant, the Tribunal, has filed an appearance submitting to any order the Court may make save as to costs.

The first defendant acknowledges that this Court has the power to grant an extension of time under both the Act and the Rules, but submits that no extension should be granted where, as in this case, the plaintiff has come to the High Court after first seeking judicial review in the Federal Circuit Court of Australia and the Federal Court of Australia, and the plaintiff has not provided any proper explanation for the delay in commencing proceedings in this Court.

The first defendant relies on the statement of relevant principles by McHugh J in Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470; 177 ALR 491 and submits that there is nothing exceptional about the plaintiff’s case such as might justify the enlargement of time needed to proceed.

The plaintiff applied to the Federal Circuit Court for judicial review of the Tribunal’s findings on 17 September 2012.  On 2 May 2013, in the plaintiff’s absence, Judge Whelan dismissed the plaintiff’s application.  The plaintiff appealed to the Federal Court on 19 July 2013.  On 26 November 2013, North J dismissed the plaintiff’s appeal.  The plaintiff has not sought to appeal from that decision.

Although the plaintiff now advances grounds of complaint asserting a lack of procedural fairness, those grounds are presented in a pro forma manner and there are no real particulars provided.  Further, the plaintiff has not appeared to explain this aspect of his complaint.  Otherwise, the arguments advanced by the plaintiff in his application for an order to show cause seem to be essentially the same as those considered and rejected by the Federal Circuit Court and the Federal Court.

Given that the plaintiff is unrepresented and despite the plaintiff’s non‑appearance, it is appropriate to treat his application as including an application for an extension of time as required under the Rules. However, it would not be in the interests of justice, either generally or in this particular case, to grant the extension of time necessary for the further conduct of these proceedings. The plaintiff has had resort to the judicial power of the Commonwealth and has not succeeded. There is nothing concrete to suggest that the plaintiff plans to advance some new or different basis of challenge beyond the grounds already heard and determined in the Federal Circuit Court and in the Federal Court.

To the extent that the plaintiff seeks to add an unparticularised ground that he was denied procedural fairness, there is nothing in the materials or placed before me to support that ground.  The continuation of these proceedings would, in those circumstances, be unjustifiably vexatious and oppressive, given that the plaintiff seeks to relitigate a case finally disposed of in earlier proceedings:  Walton v Gardiner (1993) 177 CLR 378. Where, as here, the application has been treated as including an application for the necessary enlargement of time, it is appropriate to dismiss the application.

The order of the Court is the plaintiff’s application for an order to show cause filed on 22 April 2014 is dismissed with costs.

AT 10.35 AM THE MATTER WAS CONCLUDED