Plaintiff M32-2006 v MIMIA & Anor

[2006] HCATrans 447

[2006] HCATrans 447

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M32 of 2006

B e t w e e n -

PLAINTIFF M32 OF 2006

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

THE REFUGEE REVIEW TRIBUNAL

Second Defendant

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 AUGUST 2006, AT 9.48 AM

Copyright in the High Court of Australia

PLAINTIFF M32 OF 2006 appeared in person.

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

HIS HONOUR:   I believe the applicant is present in Court and we have the benefit of an interpreter.  The interpreter should be sworn or affirmed if we could, please.

ASHA PHATARFOD, affirmed as interpreter:

HIS HONOUR:   Mr Knowles, what is the position in this matter?

MR KNOWLES:   Your Honour should have a summons prepared by the first defendant which was filed on 26 July 2006.

HIS HONOUR:   Yes.

MR KNOWLES:   In support of that summons, there is an affidavit of Maria Denise O’Regan of the same date.

HIS HONOUR:   Yes.

MR KNOWLES:   I am not sure if it would assist your Honour, but in short compass, a chronology of this matter is that the plaintiff arrived in Australia on 21 April 2004.  On 23 December 2004 the Refugee Review Tribunal handed down its decision dated 30 November 2004.  The plaintiff then filed an application with the Federal Magistrates Court on 21 January 2005.  That matter came before the Federal Magistrates Court for hearing on 8 November 2005.  On that occasion the plaintiff did not appear and the application was dismissed due to the plaintiff’s non-appearance.

Subsequently, on 28 November 2005, the plaintiff filed a document entitled “Notice of appeal” with the Federal Court.  On 9 March 2006, Justice Young refused to grant leave to appeal and struck out the so‑called notice of appeal as incompetent.  Subsequently, on 24 March the application for an order to show cause was filed in this Court along with the plaintiff’s affidavit and summons of the same date.  I note, and Mr Horan has previously referred to this, there is no reference in those documents, your Honour, to the previous judicial review proceedings and arguably that engages section 486D of the Migration Act.

HIS HONOUR:   The nice question would then be:  yes, it engages it, but with what consequence?  Is there simply a duty of imperfect obligation?  Those are interesting questions that perhaps need not detain us.

MR KNOWLES:   I merely alert your Honour to that particular issue at this point.  Like Mr Horan, I also submit that the application to this Court is out of time on the basis that section 486A applies.  I note your Honour’s comments ‑ ‑ ‑

HIS HONOUR:   You have heard what I said to Mr Horan about those questions.

MR KNOWLES:   Yes, I do, your Honour.  In this case, irrespective of that provision’s construction, the application is also out of time in relation to the High Court Rules even if they were to apply and particularly in relation to the longer period of time which relates to certiorari.  It is approximately nine months out of time.

HIS HONOUR:   But, again, that is a question that would require consideration of a valid operation of the amendments made by the 2005 Reform Act for, if valid, at least on its face, it would seem to carry with it the consequence that the Rules are overtaken.

MR KNOWLES:   Yes, your Honour.

HIS HONOUR:   We then come back to the fact that this is the further resort to the judicial power of the Commonwealth to seek review of a decision that was sought to be reviewed on earlier occasions.  Is that right?

MR KNOWLES:   Yes, that is the other issue, your Honour.  Even if section 486A were not to apply for some reason and in those circumstances the High Court Rules applied then that might be a factor that might be taken into account in relation to whether or not time would be enlarged.  But, also, of itself it is also indicative, in my submission, that the present proceeding before this Court is an abuse of process, your Honour.

HIS HONOUR:   What is the similarity, if any, between the two applications?  Where do I conveniently find the application to the Federal Magistrates Court in order to compare what is said there with what is said here?

MR KNOWLES:   The application to the Federal Magistrates Court is exhibited to the affidavit of Maria O’Regan at exhibit MOR1.

HIS HONOUR:   Yes, I have that.  Where in there do I find any statement of grounds?

MR KNOWLES:   Your Honour, there is no statement of grounds in that application.  However, an amended application was subsequently filed with the Federal Magistrates Court which sets out in more detail ‑ ‑ ‑

HIS HONOUR:   Where do I find that?

MR KNOWLES:   That has not been exhibited to Ms O’Regan’s affidavit.  A copy of it can be provided to your Honour but I understand it is not – I would have to seek leave to do that.

HIS HONOUR:   No.  If the Minister is going to do these, they are going to be done properly.

MR KNOWLES:   I understand, your Honour, yes.  What is sought in the application to the Federal Magistrates Court was judicial review relating to the Refugee Review Tribunal’s decision.  That is the same situation in the present case and what your Honour will find is that then the plaintiff on appeal to the Federal Court agitated certain grounds and his Honour, Justice Young – I am sorry, your Honour.

HIS HONOUR:   Do I sufficiently find it if I compare exhibit MOR3, which is the notice of appeal, with the originating process in this Court?  We there find in MOR3 allegation of failure to find error of law, jurisdictional error, procedural fairness and relief, et cetera.

MR KNOWLES:   Yes.

HIS HONOUR:   We find in the application to this Court allegations which are cast at least on their face in fairly general terms.

MR KNOWLES:   Yes, your Honour, that is the case.  In essence, there are broad grounds of review sought here and that is in the nature of what was sought by the plaintiff before the Federal Magistrates Court.  Perhaps I ought to indicate, your Honour, that in this case as Justice Young observed in the matter when it came before the Federal Court – this is set out in the reasons for judgment of Justice Young which are contained at exhibit MOR7 ‑ ‑ ‑

HIS HONOUR:   Yes, I have that.  Which paragraph?

MR KNOWLES: Paragraphs 8 to 9. Paragraph 8 sets out a relevant rule in the Federal Magistrates Court Rules which indicates that judgment that is made in the absence of a party may be set aside on the application by that party for that to occur.

HIS HONOUR:   But then his Honour goes on in paragraph 12 to consider the merits of the appeal and find that there are none. 

MR KNOWLES: That is so, your Honour, by reference to the fact that the decision, the subject of appeal, was that there being no appearance by the applicant the matter ought to be dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules.

HIS HONOUR:   Yes.

MR KNOWLES:   In essence, the same submission is made today before your Honour concerning how this matter is an abuse of process.  The appropriate course, as his Honour Justice Young indicated in paragraph 9 of those reasons for judgment, was for the applicant to seek reinstatement of the matter before the Federal Magistrates Court.  Even when that was something to which the applicant was alerted in the Federal Court proceeding, the applicant has then instead come before this Court a matter of two weeks after having received those reasons for judgment.

HIS HONOUR:   Does it come to this, Mr Knowles, that you have a number of arguments, the one to which attention is presently directed as the primary focus is that the application here is an abuse of process because application was previously made in the Federal Magistrates Court, suffered the fate it did - if there is remedy there it is to be remedied there, not here?

MR KNOWLES:   That is correct, your Honour.

HIS HONOUR:   Yes, perhaps I will hear what the applicant has to say.

MR KNOWLES:   Yes, thank you, your Honour. 

HIS HONOUR:   Madam Interpreter, would you be good enough to explain to the plaintiff these things.  Perhaps, if you would come to the centre lectern.  The Minister is asking that this proceeding be dismissed.  The Minister says that it should be dismissed because you made application to the Federal Magistrates Court and that you lost in the Federal Magistrates Court because you did not go to court and that you should not now be allowed to make a fresh application in this Court.  This is your chance to tell me why the Minister is wrong in saying those things.  The Minister wants to stop your proceeding now.  Is there anything you want to tell me in answer to that?

PLAINTIFF M32 OF 2006 (through interpreter):   I really do not know what to say but what was the reason for being dismissed at the Federal Magistrates Court?  Is it because I did not come, can I give the reason for that?

HIS HONOUR:   He can say to me what he wants to say, yes.

PLAINTIFF M32 OF 2006 (through interpreter):   I could not appear because I was living too far away and I am having financial hardships so these things ought to be considered, please.

HIS HONOUR:   Is there anything else he wants to tell me as an answer to what the Minister wants?

PLAINTIFF M32 OF 2006 (through interpreter):   If it is all resting on that, a contention of law, I will just agree to whatever is being said.

HIS HONOUR:   Yes.  There is nothing else he wants to tell me?

PLAINTIFF M32 OF 2006 (through interpreter):   I feel the RRT did not give me a right decision.  They did not make any reference to the claims that I had made.  They spoke about everything else but the claims I had made.

HIS HONOUR:   Yes, thank you very much.  Perhaps you could be good enough to sit down again, thank you.  Mr Knowles, I will not trouble you in reply. 

On 24 March 2006 the plaintiff filed an application for an order to show cause directed to the Minister for Immigration and Multicultural Affairs and the Refugee Review Tribunal.  The relief sought included a declaration that the decision of the Refugee Review Tribunal dated 30 November 2004 was invalid and contrary to law.

The plaintiff arrived in Australia on 21 April 2004.  He applied for a protection visa.  On 23 December 2004, the Refugee Review Tribunal published the decision which the plaintiff would seek to impugn in these proceedings.  The Tribunal affirmed the decision of a delegate of the Minister to refuse the grant of a protection visa.

On 21 January 2005, the plaintiff made application to the Federal Magistrates Court. That application stated no grounds and contained no statement of the relief that was sought, but the proceedings below and the present proceeding in this Court have gone forward on the basis that the plaintiff sought relief under section 39B of the Judiciary Act 1903 (Cth) in the Federal Magistrates Court directed to the decision of the Tribunal which is the subject of the present proceeding in this Court.

The application to the Federal Magistrates Court came on for hearing on 8 November 2005.  The plaintiff did not appear on that day and the proceeding was dismissed.  The plaintiff informed me this morning that he did not attend that hearing because he could not afford to do so, he then living at some distance from the place of hearing. 

After his application to the Federal Magistrates Court was dismissed, the plaintiff filed what purported to be a notice of appeal against that dismissal to the Federal Court of Australia.  On 9 March 2006, Justice Young refused the plaintiff leave to appeal against the orders of the Federal Magistrates Court and ordered that the notice of appeal dated 28 November 2005 should be struck out as incompetent.  It is following that decision of Justice Young that the present proceeding in this Court was instituted.

The Minister now applies for orders summarily dismissing the proceeding in this Court.  The Minister would advance a number of bases upon which such an order should be made.  It is necessary to consider only one of those bases, namely, that the application is, so the Minister submits, an abuse of process.  The Minister contends that the proceeding in this Court is an abuse of process because it seeks to do no more than re‑agitate issues which have already been the subject of application and determination in the Federal Magistrates Court, albeit in the manner earlier described.

The proceedings in the Federal Magistrates Court having been disposed of as they were on the basis that the plaintiff did not appear to prosecute his application, questions of preclusion or estoppel do not arise.  What is of central importance, however, is that the plaintiff having resorted to the judicial power of the Commonwealth in this way and having taken such steps as he has in execution of that application, for him now to commence a fresh proceeding in this Court is, in my opinion, an abuse of the process of this Court.  That being so, the proceeding should be dismissed.  The order of the Court is proceeding dismissed.  Mr Knowles?

MR KNOWLES:   Your Honour, the first respondent would also seek costs in relation to this matter.

HIS HONOUR:   The plaintiff must pay the Minister’s costs.

MR KNOWLES:   If your Honour pleases.

HIS HONOUR:   Madam Interpreter, I have heard that you have been interpreting as I have gone on.  If it were convenient to you to just delay a moment and take time to answer any question that the plaintiff had of you about what I have said, I would be much obliged. 

THE INTERPRETER:   Of course.

HIS HONOUR:   Thank you for your assistance.

AT 10.14 AM THE MATTER WAS CONCLUDED