Plaintiff M89/2013 v Minister for Immigration and Citizenship and Anor

[2013] HCATrans 234

[2013] HCATrans 234

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M89 of 2013

B e t w e e n -

PLAINTIFF M89/2013

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 4 OCTOBER 2013, AT 10.30 AM

Copyright in the High Court of Australia

PLAINTIFF M89/2013 appeared in person.

MR J.D. BROWN:   I appear for the first defendant.  (instructed by Australian Government Solicitor) 

HIS HONOUR:   There is a submitting appearance for the second defendant.  Now, Mr Plaintiff, we have the advantage of having an interpreter in Court.  We might begin by having the interpreter sworn and we can then proceed.

ANTHONY (FRANCIS) ANTONYSAMI, sworn as interpreter:

HIS HONOUR:   Thank you very much, Mr Interpreter.  Would you be good enough to tell the plaintiff that the Minister applies for an order stopping the plaintiff’s case?  The Minister says that the case is one which will fail and the Minister asks today that I dismiss the case.  I will hear first from the representative of the Minister and after he has made his statements to me then the plaintiff will have his chance.  If at any stage of the proceedings we need to slow down to enable you, Mr Interpreter, to convey information to the plaintiff, all the plaintiff must do is ask and we will slow down, but it is very important that he listen carefully and understand as best he can what is happening.  Thank you.  Now, Mr Brown, it is your summons of 20 September this year, I think.

MR BROWN:   Thank you, your Honour, it is.

HIS HONOUR:   There is an affidavit of Edward Lysander Rogers affirmed on 20 September 2013.  Have those documents, Mr Brown, been served on the plaintiff?

MR BROWN:   They have, your Honour.

HIS HONOUR:   You ask me to receive the affidavit.

MR BROWN:   Yes, please, your Honour.

HIS HONOUR:   In the affidavit, Mr Rogers sets out the events that have happened about the plaintiff coming to and while in Australia.

MR BROWN:   He does, your Honour.

HIS HONOUR:   In particular, it sets out his application for a protection visa in March 2008.

MR BROWN:   Yes.

HIS HONOUR:   The Minister refused to grant that visa. Is that correct?

MR BROWN:   That is correct, your Honour.

HIS HONOUR:   The plaintiff went to the Refugee Review Tribunal to review that decision.

MR BROWN:   Yes, your Honour.

HIS HONOUR:   The review sought protection visas for the plaintiff and for the plaintiff’s wife.  Is that right?

MR BROWN:   They did, your Honour.  So the application for the plaintiff’s wife was made as a member of the family.

HIS HONOUR:   Yes, and the Tribunal said no.

MR BROWN:   After a hearing, your Honour, yes.

HIS HONOUR:   The plaintiff and his wife had a daughter in Australia in February 2009?

MR BROWN:   I understand so, yes.

HIS HONOUR:   She has separately asked for, but been refused, a protection visa.

MR BROWN:   That occurred in December 2012, your Honour.

HIS HONOUR:   Since those events the plaintiff and his wife have several times asked the Minister to grant a protection visa.

MR BROWN:   It is a process that started in 2009, your Honour, and it has continued through until this year.

HIS HONOUR:   The plaintiff after the last of those attempts made an application to this Court in July this year.  Is that right?

MR BROWN:   That is right, your Honour.

HIS HONOUR:   So that application was made more than five years after the Refugee Review Tribunal decision.

MR BROWN:   That is right, your Honour.

HIS HONOUR:   As I understand it, you say that the decision is made more than four and a half years later than it should have been made.  Is that right?

MR BROWN:   Your Honour, I think the most beneficial calculation of how late this application has been made is four years and three months.  That recognises the introduction in the Migration Legislation Amendment Act(No 1) 2009 of a provision that allowed someone in the plaintiff’s position to have the clock start ticking again.

HIS HONOUR:   Well, you say that the application is at least four years too late.

MR BROWN:   Four years and three months, your Honour, yes.

HIS HONOUR:   As I understand it, you say that first being so late is reason enough to dismiss the proceeding.  That is one step.

MR BROWN:   Yes, your Honour, in the absence of an explanation for the delay.  So it would require some exceptional circumstances to justify a period of delay of that time.

HIS HONOUR:   Yes.  Second, you say that the grounds which the plaintiff puts forward are grounds that could not succeed.

MR BROWN:   That is correct.

HIS HONOUR:   In those circumstances you say that I should stop the proceedings now.

MR BROWN:   That is right, your Honour. 

HIS HONOUR:   Is there anything else, Mr Brown, that I should notice about the application before I ask the plaintiff what he has to say?

MR BROWN:   No, your Honour, we are content to rely on the arguments in our written submissions.

HIS HONOUR:   Yes.  Just as to that, have the written submissions been made available to the plaintiff?

MR BROWN:   We ensured last week that the plaintiff had a copy and he understood the need to find somebody who would explain them to him and he said he could do that.

HIS HONOUR:   Is there anything else, Mr Brown?

MR BROWN:   No, your Honour, thank you.

HIS HONOUR:   Thank you.  Mr Plaintiff, now is the time for you to have your say.  If you could – both of you, the interpreter and you come to the lectern with perhaps the interpreter at the lectern closest to the microphone so that we can obtain a transcript.

THE INTERPRETER:   Yes. 

HIS HONOUR:   Now, this is your chance to tell me why I should not stop the action today. 

PLAINTIFF M89/2013 (through interpreter):   From the place where I came from, Malaysia, I know for sure that if I were to return to that place I would be killed.  That is a certainty.  How could I live or how could I return in these circumstances back to the place where I come from?  In fact, during the course of these years I could not even attend my dad’s funeral.  Which son would ever not want to go and attend the funeral of his own father that even the mother and the other relatives they said, “Do not return because you have certain risk to your life”. 

So that was the reason that I have been trying to put across to all the authorities here that I am unable to return back.  Why is it not understandable by the government?  The reason is that I cannot live back in my place where I originally from.  I could not even go back to my grandmother’s death and neither to my uncle’s funeral.  Not that I do have any sort of sacrificial attitude but that I just cannot go back to the country where I come from because of the reasons. 

Well, this question was put to me even at the RRT, why I could not relocate to any other place or for that matter go and live in Singapore.  Well, the reason is I did not come to this country for any economic purpose.  I did not come here to earn anything.  In fact, there would be nil balance in my account.  I have not saved up anything after coming here.  My wife has not been working.  I have only been working.  I actually live in a state of poverty here but the only reason is for the safety reasons that I have come here. 

Well, further I am unable to even to talk to you at the moment because I am having a severe headache at the moment.  I do not know what to say.  They have sent me out because I could not afford to live there and now you people are sending me back and I do not know what else to do except to die.  Is that the only solution available before me to die?  Well, I swear before my mum that I have not come here to earn anything.  I have not come here to sacrifice anything.  In fact, I have come here leaving all my closest family back home only because of the issues involved in living there.  That is the only reason and I again swear before everyone that that is the true reason that I have come here, not to earn but to protect my life. 

I am not too sure how many years have I come here before.  It could be 10 years or eight years since I landed here, but prior to my coming here I was actually always scared for my life and I still continue to live in the state of fearfulness and I am really scared about what is going to really happen to me.  The uncertainty is actually killing me.  I do not have any entertainment.  I do not have any relaxation.  All I live is in a life of no peacefulness. 

Even today I am unable to sleep longer than three or four hours.  Even my wife tells that and even in those three or four hours I keep screaming and yelling.  In fact, the next morning my wife asks me, “Why do you keep constantly shouting and blabbering?”  Well, I know for sure that life is not a drama but it is actually a reality.  If I had not had my family, if I had not my daughter I do not know what I would have done to myself for a long back, but every time that I spend I am really spending in a time of agony. 

Well, from the time I applied for the protection visa and then having been rejected at the RRT and then many people advised me that there is no point in applying to the Minister because it would be summarily rejected but in spite of that I went ahead and even when I went ahead to pay the money to pay up for the High Court charges and to have it applied here the people told me that it is as good as putting your money in the toilet, washing it down there, because nothing good is going to come of that. 

So what is actually happening around me?  So is it that there is a…..that I am going to be sent back by all means?  Is there no solution for me in sight?  Well, since the time of my arrival I have been having medication and seeing a doctor.  I still continue to be on medication but still I have these sleep problems.  I do not what to do with my life. 

I do not know how to really put across my problems to the authorities here because I was told that the Minister is not going to consider my application in a positive manner and even with the courts I was told that I am not going to get anything positive out of it, so my whole life has become a question mark.  So where would I ever get justice or where could I get any justice at any point?  Where would I get it? 

THE INTERPRETER:   He is asking me to repeat that, your Honour.

HIS HONOUR:   Yes.

PLAINTIFF M89/2013 (through interpreter):   Well, even before coming here I was told that even the High Court would not take a good decision on me.  So I am wondering what have I committed so wrong that I am told that I would not get a positive decision.  Well, the immigration they told me, “Why do you waste your money trying to apply for the High Court”.  So that really set me back because telling me how could I really prove it?  Should I lose any part of my body limbs to prove it or what reasons could I actually postulate to really ask a good decision to be taken on my account?

HIS HONOUR:   Could I ask you to tell the plaintiff that the only question which this Court can decide is whether the decision that was made by the Tribunal was made in a lawful way.  The Tribunal decides the facts of the case.  This Court cannot decide the facts. 

PLAINTIFF M89/2013 (through interpreter):   I do not know what to say in reply to this. 

HIS HONOUR:   Is there anything else that he wishes to add?

THE INTERPRETER:   Your Honour, he wants me to repeat what the Tribunal would be finding.

HIS HONOUR:   Tell him please that I understand that he says that if he goes back to Malaysia he will be killed.  Tell him that I understand that he says that I should recognise how big his fear is when I see that he could not go back even for his father’s funeral.  Tell him also that I understand he says that he did not come to Australia for economic reasons.  He came here because he believed he was not safe in Malaysia.  I understand that that is what he says and he believes. 

The only question I can decide is whether the Tribunal acted lawfully and the Minister says that none of his complaints is a complaint that shows that the Tribunal did not act lawfully and that because he has applied so long after the Tribunal decision I should now dismiss the case.  Now, that is what I have to decide.  Is there anything else that he wants to tell me?  I understand what he has told me so far.  Is there anything additional that he wants to say?

THE INTERPRETER:   So he is just asking me about the Tribunal procedure of law facts.

HIS HONOUR:   The Minister says that the complaints that he makes about that are complaints that do not show the Tribunal was acting wrongly, but the Minister also says it is now too late to raise these points. 

PLAINTIFF M89/2013 (through interpreter):   So my explanation to this is these two reasons.  One is I never knew what are the formalities that I need to observe if I had to apply for a protection visa or to live as a refugee.  I thought that I am just coming here to safeguard my life and I would spend the rest of my life as though I am a bird or an animal just exist here, but having all these requirements to be considered a refugee I would have taken photos, I probably would have brought some more evidence. 

That were the reasons, I really do not know how the procedure of law is affected here.  Secondly, with regarding the delay – extraordinary delay in applying at the High Court, I did not know once again the legal procedures here because having come here, going through mediation a number of times with the Legal Aid and after concerting with several lawyers, four to five lawyers, only did I realise of late that I could finally approach the High Court and the High Court would render me justice and that is the reason I have come here a bit late. 

So all I am asking you is please reconsider my request and give me…..of the life to live here.  I will not be a burden to this country by any means.  I would definitely not do anything wrong and kindly give me one last chance to live in this country, I really beg you.

HIS HONOUR:   Yes, thank you very much.  Do sit down.

On 31 July 2013, the plaintiff filed an application in this Court for an order to show cause.  The plaintiff sought orders setting aside the decision of the Refugee Review Tribunal made on 15 July 2008.  The plaintiff said that the Tribunal had failed to act lawfully.  He said that the Tribunal had not given him an opportunity to comment on relevant information.  He said that the Tribunal did not look at all relevant information and did not allow him to present his case in a way that enabled him to put it forward properly.

As is apparent from the dates I have mentioned, the application is made well out of time.  On any view it is made at least four years after the time limited for the making of the application.  It is necessary, therefore, to record what has happened in the intervening periods. 

As I have noted, the Tribunal’s decision, which the plaintiff challenges, was made in July 2008.  The plaintiff and his wife had arrived earlier that year.  The plaintiff had applied for a protection visa, naming his wife as a member of his family, but in April 2008 a delegate of the Minister refused the application for a protection visa.  In February 2009, after the Tribunal’s decision, the plaintiff and his wife had a daughter, born in Australia.  The daughter herself has subsequently sought, but been refused, a protection visa. 

Between January 2010 and April 2013, the plaintiff has sought to have the Minister exercise his power under the Act to grant the plaintiff a visa.  Those applications have not succeeded.  Hence, at the end of July 2013, the plaintiff issued the present proceedings in this Court.  The Minister now applies for an order dismissing proceedings.  The Minister submits that there is no reason shown to extend the time for making the application.  The Minister further submits that the grounds alleged by the plaintiff will fail. 

It is important to recognise that the time limits fixed for commencing proceedings of this kind serve an important public purpose.  As Justice McHugh said in Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 at 495, paragraph [15], the writs which the plaintiff seeks in this case:

are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

In a matter such as the present where the plaintiff’s personal interests are so plainly at stake, it is important to consider whether the plaintiff has an arguable case.  On the material presently available to the Court the matters which the plaintiff seeks to argue appear to me to have no prospect of succeeding.

I am conscious of the fact that the plaintiff has not perhaps had access to legal advice of a kind that would permit him to put his case to the best advantage.  I have therefore given close attention to the Tribunal’s statement of reasons in the plaintiff’s case. 

I am of the view, however, that the plaintiff demonstrates no arguable case that the Tribunal made an error of a kind which this Court could correct.  As I attempted to explain to the plaintiff in the course of argument, this Court’s concern is limited to the lawfulness of the processes which have been undertaken.  This Court has no authority in a case of this kind to decide the facts for itself.

In these circumstances I am not persuaded that the plaintiff should have the extension of time he would need to bring the proceedings he has instituted.  The plaintiff’s proceedings must therefore be dismissed.  Mr Brown?

MR BROWN:   Thank you, your Honour.  The Minister seeks costs in this matter.

HIS HONOUR:   The proceeding must be dismissed with costs.

MR BROWN:   Thank you, your Honour.

AT 11.17 AM THE MATTER WAS CONCLUDED