Plaintiff M90-2009 v Minister for Immigration and Citizenship

[2009] HCATrans 279

[2009] HCATrans 279

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M90 of 2009

B e t w e e n -

PLAINTIFF M90/2009

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for an order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 OCTOBER 2009, AT 9.59 AM

Copyright in the High Court of Australia

MR J.W.K. BURNSIDE, QC:   If your Honour please, I appear for the plaintiff.  (Asylum Seeker Resource Centre)

MR S.P. DONAGHUE:   If it please the Court, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, Mr Burnside.

MR BURNSIDE:   Your Honour, can I begin by explaining that Ms Knowles’ name appears on our submission, but we discovered last night that by an oversight she is not on the roll of practitioners in the High Court.

HER HONOUR:   Do not trouble yourself further.

MR BURNSIDE:   Your Honour, the first question, perhaps the only real question today is whether or not there ought to be an extension of time for this application.

HER HONOUR:   Yes, that is my understanding of today’s application.

MR BURNSIDE:   Consistently with the discussion last time, which we were able to access last night, we would say the matter should then be remitted to the Federal Magistrates Court and, if necessary, with an injunction to restrain removal.  Our learned friend anticipated correctly that we were assuming that in the event an extension were granted, that an injunction would not be necessary because we assumed that the plaintiff would not be removed in those circumstances because removal would simply defeat the entire action in a practical sense.  So for the preservation of the subject matter of the action, we would seek an injunction if it is necessary.

Our primary point, your Honour, is that the plaintiff did not at the RRT get a hearing which was worth the name.  His representative could not hear what was going on because of the circumstances in which the hearing took place and there were faults with the interpretation which she, as herself a registered interpreter, said were very serious.

HER HONOUR:   Where in the evidence does she say they were very serious faults and does she give any examples?

MR BURNSIDE:   She does not give examples.  The affidavit is exhibit KK-1 to Mr Karapanagiotidis’ affidavit.  I might have slightly overstated that.  I have glossed it, your Honour.  Paragraph 3 of the first affidavit:

concerns about the quality of interpreting and that a number of interpreting errors had been made. 

Paragraph 6:

It was extremely difficult for me to ascertain whether there was accurate translation of the discussions as a result of poor voice transmission over the telephone ‑ ‑ ‑

HER HONOUR:   Yes.  I should perhaps note for the transcript that, as I understand it and you can confirm this Mr Burnside, there are four affidavits sworn in support of the application for an extension of time.  They are the affidavits of Mr Kon Karapanagiotidis sworn 7 October 2009, two affidavits from Simon Leske respectively sworn on 7 and 13 October 2009 and an affidavit from the applicant sworn on 13 October 2009.

MR BURNSIDE:   That is correct.

HER HONOUR:   Then, as I understand it, just to complete the picture in relation to affidavits, there are two affidavits sworn in opposition to the grant of the extension of time, one by Maria Ngo sworn 7 October 2009 and a second affidavit by Nicole Trevascus sworn on 14 October 2009.

MR BURNSIDE:   Yes, your Honour.

HER HONOUR:   Thank you.

MR BURNSIDE:   I should just check.  Do you have the form of the plaintiff’s affidavit with the appropriate jurat of the interpreter?

HER HONOUR:   I do, thank you.

MR BURNSIDE:   Yes.  There were some mechanical difficulties associated with getting that.

HER HONOUR:   Yes, thank you.

MR BURNSIDE: Your Honour, I should say our primary point, as I have said, is that the hearing was not a hearing of the sort required by the Act. Section 422B provides general guidelines for hearings. It sets out what is described as an “Exhaustive statement of natural justice hearing rule”. Subsection (3):

In applying this Division, the Tribunal must act in a way that is fair and just.

In our submission, that requirement plainly incorporates at least some aspects of the fair hearing rule and in the circumstances of this case it is our submission that a hearing in which a representative was apparently regarded by the Tribunal as appropriate but where by the circumstances the representative could not hear what was going on so as to participate in any meaningful sense and furthermore, a hearing in which the interpreter provided for the applicant for review was not interpreting accurately, that simply fails to provide a hearing which can be described as fair and just.

Now, our learned friend spent some time in his submission saying, well, there is not a right to have representation at a Tribunal hearing, and so much can be conceded, but it is apparent that the Tribunal member thought that in the circumstances of this case representation was appropriate because he raised no reservations about Ms Perera appearing.  We would say, in any event, that considerations relevant to whether there ought to be representation include whether or not the applicant for review has a capacity to understand what is going on and given the complexities of matters like this, in our submission, it is plainly the case that he would not have the capacity to understand and would need expert help.  A second consideration is the applicant’s level of English and plainly enough his English was limited or non‑existent and where ‑ ‑ ‑

HER HONOUR:   Everything was mediated through an interpreter, as I understand the transcript.

MR BURNSIDE:   Yes, that is exactly right.  Of course, the use of an interpreter then makes it essential that the interpreting should be accurate, especially given some of the complexities that had to be dealt with.  Tied up with these is the legal and factual complexity of the problem.  Finally, in our submission, it is relevant to consider the importance of the decision itself.  In protection visa applications it is clearly the case that the decision is of the greatest importance because it can involve matters of life and death, literally matters of life and death.  In those circumstances, in our submission, the content of a hearing which was fair and just must include effective representation and accurate interpretation.

There is a subordinate point which was dealt with at some length when the matter was before your Honour on 7 October and that is the inadequate disclosure of the evidence of other applicants referred to in paragraphs 92 to 95 of the RRT’s decision.  I say that is subordinate because it is within the scope of the problem that the hearing itself was unfair for the reasons that I have advanced, that it is a specific aspect of the hearing that failed to comply with the statutory requirements of section 424A.

HER HONOUR:   The evidence, as I understand it, focuses on ground 6 of the application, that is to say, the point you have mainly addressed, the inadequacy of the hearing by reason of representation and interpretation difficulties.

MR BURNSIDE:   Yes, but by saying that, your Honour, I would not want to be understood as abandoning the other grounds, although they are really a question for another time and another place, but we thought it desirable to occupy your time with what we concede to be the principal points.  If your Honour was with us on the principal points, well, then, all the points can be dealt with in another place.  The other matter we say as an aspect of the section 424A – or section 424AA point really because the particulars were given orally – is that in the circumstances it would necessarily have been difficult or impossible for him to deal with the matters raised by the member. 

HER HONOUR:   One difficulty that seems apparent in relation to these submissions, Mr Burnside, is that the latest affidavit of the applicant seems or appears to be making complaints about the representative herself.

MR BURNSIDE:   I accept that.  It does read that way, although the complaints are generally of a fairly low order.  Now, it is probably fair to say that she might have done things better.  Whether that would have overcome the fundamental problem, we submit, is not at all clear, but focusing on the 424AA point, the plaintiff says in paragraph 6 – he discusses the factual underpinnings of the 424AA problem.

HER HONOUR:   Yes, I see that.

MR BURNSIDE:   Just going to one-third of the way through the paragraph:

During the hearing, I realised that Amal’s statement had gotten mixed up with my statement.  All the statements had a lot of mistakes in them.  Some things that we told the Immigration officials were not properly recorded in our statements.  The lawyer was very silent about the issue, and did not mention to the member that there were mistakes in the statement.

That sounds like a criticism of her, but the real question is, could she hear the member raising the point –

She did not make any submissions to the RRT member.

We make the same observation –

There were some mistakes about money transactions in our statements.  I asked our lawyer why there were defects in my statement, and she said the papers had gotten mixed up.

Now, if there were a mix up in the way the statements have been recorded by the Department in respect of various of the applicants whose circumstances were at least in one respect similar because they had come on the same boat, that sort of mix up would be extremely difficult for the applicant for review to deal with without the assistance of really effective representation and perhaps an opportunity to look at the statements side by side and see where the mix up had occurred.

Now, it seems that the representative was aware of the mix up in the papers, but given that she was not able to participate properly, that complication was simply not sorted out.  It is not difficult to see it would be complicated sorting that out even if everyone was present in the same room with the papers in front of them, but impossible in the circumstances of this hearing.

Now, your Honour, the section, 486A, provides one criterion only for extension of time and that is “that it is necessary in the interests of the administration of justice”.  In our submission, an unfair hearing results in the decision being invalid.  The result of the decision being invalid but left to stand is that a person who is entitled to our protection would be sent back to a place where that person faced persecution on Convention grounds and it would put Australia in breach of its non‑refoulement obligations under the Convention.  In our submission, a decision which, on this hypothesis, is invalid and which has such dire consequences should not be allowed to remain on foot just because of a time limit.

It is put against us that there was a delay of a little short of two months.  The delay, in our submission, did not on the evidence involve any conscious choice by him or any strategic decision by him.  In this part of the case there is conflict on the evidence and the conflict arises between paragraph 9 of the plaintiff’s affidavit and exhibit MN-3 to Ms Ngo’s affidavit.  In MN-3 Ms Ngo exhibits without comment a case note extracted from CCMD Portals.  It does not identify the case, it does not identify the people involved, but it says that the clients were advised of the critical dates for seeking judicial review of the decision.  Now, it is plainly enough a hearsay statement lacking all relevant details.

The plaintiff, on the other hand, deals with the question at paragraph 9 and deals with it directly.  He says:

Some of the other people in our group spoke to our lawyer and she told them that it was pointless to go to Court to appeal the decision, and that we should appeal directly to the Minister.  The lawyer did not tell me anything directly, but she told three other members of our group that it would take a very long time to go to Court, and that it would be quicker to appeal to the Minister.

She then appealed to the Minister on his behalf. Now, it is impossible to find in that, in our submission, an informed decision by the plaintiff to abandon the possibility of appeal and to pursue instead a remedy which excluded or precluded the possibility of an appeal. In addition, it is plain that once the Minister refused the section 417 application, the steps that were thereafter taken on behalf of the plaintiff were taken with great speed. First of all, an application for a criminal justice visa which I think was sought one day after the decision on the 417 was notified, and a day or so later, on a Sunday afternoon, they were in front of the Federal Magistrates Court. That failed and within two days after that they appealed to the Federal Court, but that appeal was precluded by the statute and the next day he was in front of your Honour. This really is a case, in our submission, where he is blameless for any tactical decisions made and certainly could not be criticised for delaying.

There is another aspect to this, your Honour.  At all relevant times until very recently the plaintiff has been held in Christmas Island which, as a matter of practical reality, makes access to legal help extremely difficult.  That is a matter, in our submission, which needs to be taken into account generally when assessing the steps which he has undertaken and the time at which he has taken them.  Your Honour, to the extent that it matters, our learned friends have referred in paragraph 10, footnote 3 of their submissions to various cases on extension of time. 

HER HONOUR:   I think you must mean another ‑ ‑ ‑

MR BURNSIDE:   Yes, I am sorry, it is paragraph 7.  He makes the point quite properly that these are new provisions and there are not many decisions, none in this Court.  He says:

There are a small number of judgments of [the Federal Magistrates Court] in relation to applications for an extension of time under those sections.  Those judgments suggest that the ordinary considerations addressed in extension of time applications are relevant.

The cases, however, in our submission, do not support that.  Your Honour approaches this, in effect, without any binding authority, but what has been done in lower courts may be useful.  Can I go to each of them in turn.  The case in footnote 3, Hunter Valley Developments Pty Ltd v Cohen was not a case under the Migration Act at all.  It was a case under the Administrative Decisions (Judicial Review) Act where there had been a six‑month delay and an extension was granted. 

Wong’s Case was a Migration Review Tribunal case where there is a corresponding provision.  There was a seven‑month delay.  The Government, I think, acknowledged that there had been jurisdictional error and an extension was granted.  In SZMNO, that was an appeal to the Federal Court where the Federal Court Rules, Order 52 rule 15, governed the matter and so it is not a decision under one of these sections.  There the appeal was sought to be brought seven months after an order of the Federal Magistrates Court. 

In Rinka, the last case referred to, the applicant’s visa was cancelled and then sought a protection visa.  The actual delay in seeking to challenge the decision was two years, although because the new time limit came in towards the end of that period, time only ran from the date of the amendment, but it was in practical terms a two-year delay.  In that case her Honour held that it was at least arguable that there had been a failure to accord with the rules of natural justice and that a lengthy delay was not sufficient to deny relief.  So to the extent that the decisions of other courts give some guidance in this, in our submission, they tend to support our application rather than the contrary. 

Your Honour, our learned friends also rely on the floodgates argument.  In our submission, the contrary is the case because if your Honour says authoritatively what principle should be applied in dealing with applications for extension of time under these provisions, then the Magistrates Court, which is likely to be hearing them for the most part, will be better able to deal with them in accordance with law.

It is significant that in this case the federal magistrate who heard the matter expressed the view that the balance of convenience heavily favoured an extension time – that is deposed to in paragraph 18 of Ms Ngo’s affidavit – but the magistrate made the point that the evidence was not complete and so it seems decided that she could not grant the extension only on the technical ground that the evidence having been put together in a hurry was not complete and was not sufficient for her to act upon.  You have the facts before you in a much better form and, in our submission, the facts in this case clearly support the case for an extension of time.

Finally, your Honour, as I have said, if you are with us so far, well, then we would ask for an injunction if it is necessary.  If the defendants say that they intend to remove the plaintiff, even if he is granted an extension of time and he matter is remitted, then we would ask for an injunction sufficient to prevent that from occurring.

Can I say one other thing.  It is a minor point.  Our learned friends say in paragraph 46 that the plaintiff made a deliberate choice not to place the RRT transcript in evidence.  Well, it was not available to us up to the time when the evidence and the submissions had to be filed.  I think they were due on Wednesday afternoon at 4.00 and the transcript came through sometime on Thursday.  So there was no deliberate decision at all, quite the contrary.  Unless there are other matters I can help with, those are our submissions.

HER HONOUR:   Thank you, Mr Burnside.  Yes, Dr Donaghue.

MR DONAGHUE:   Thank you, your Honour.  There are three topics I would seek to address orally.  They are first and briefly the approach that the Court should take on second applications for an extension of time, if I can call them that.  The second point is the question of the adequacy of the plaintiff’s explanation for not commencing proceedings within the statutory time limit and the third point, which will occupy the bulk of my submissions, concerns the lack of merit of the underlying application.

Your Honour, I rely upon the two affidavits that the Court identified as filed in opposition, that is, the affidavits of Ms Trevascus and Ms Ngo and I seek to treat those as having been read.  Can I also hand up to the Court and provide my friends with a copy of a folder of some materials that I will take the Court to.

In relation to the first of the topics, the question of second applications, that arises, as your Honour will recall, from the last hearing because there was an application for an extension of time made in the Federal Magistrates Court on Sunday, 4 October, and the criteria that the Federal Magistrate had to apply in considering that extension of time application were relevantly identical to the criteria that apply in this Court under section 486A(2). Really distilling the written submissions that we have made in paragraphs 8 to 16 of our outline, the submission is that what is necessary in the interests of the administration of justice is not the same on a second application as what is necessary in the first.

The reason for that is that once an applicant has already made an application and has had that application assessed by reference to what I might call the ordinary criteria matters such as the explanation for the delay, whether there is any prejudice to the respondent, whether there is underlying merit, once all of those matters have already been considered as against the statutory test, it will ordinarily not be necessary in the interests of the administration of justice to give the applicant a second opportunity to ventilate those same considerations either in the same court in which the original application has been made or in a different court.

Your Honour, there is under the Act nothing that would have stood in the way of the applicant making this application that is now before your Honour in the Federal Magistrates Court, notwithstanding the fact that they have been refused an extension of time in that court. As a matter of law this application is invoking jurisdiction of this Court that is identical to that available in the Magistrates Court but had as a practical matter the application been made again in the Federal Magistrates Court, one would expect that the judge hearing the matter in that court would have expected there to be some explanation given as to why the same application having been made a few days earlier it should be entertained again.

That being the case, we submit that the applicant should not get an advantage from coming here and invoking jurisdiction that overlaps completely with that in the Federal Magistrates Court.  That is most particularly so when one has regard to the terms of section 476A(3) and (4) which are behind tab 1 in the folder that I have handed up.

Those are the sections, and I took your Honour to them last week, that were introduced at the same time as the current statutory time limits and that have the effect of eliminating every avenue of appeal from any court that makes an extension of time application.  So if the application is brought in the Federal Magistrates Court, you cannot appeal to the Federal Court.  If it is brought before a single judge in the Federal Court, you cannot appeal to the Full Federal Court.  If it is brought in the Full Federal Court, you cannot appeal to this Court and by reason of the Federal Magistrates Court Act, you cannot appeal directly from the Federal Magistrates Court to this Court.

Now, those amendments that were made at the same time as these statutory time limits, in my submission, bear on the proper interpretation of the words “what is necessary in the interests of the administration of justice”, because they are enacted at the same time as part of the same package and they indicate, in my submission, a clear legislative intention that decisions in relation to extension of time applications should be final.  That being the case, in my submission, when a second application is made applying the same statutory criteria, that parliamentary intention for finality bears upon the proper interpretation given to the statutory test.  So that the Court is supported, in my submission, in the conclusion that generally speaking it will not be necessary in the interests of the administration of justice to entertain a second application by the fact that once such applications are entertained, the apparent intention towards finality would be defeated.

That being so, your Honour, while of course we accept that power under the section remains, the way in which that power should be exercised on a second or subsequent application should take into account the fact that the applicant has already had an opportunity to have the ordinary matters, including the merits of the case and the explanation for delay, considered and that the interests of the administration of justice do not usually require an opportunity to re‑ventilate a matter already determined.

Now, if your Honour were to accept those submissions, the question would become, has a sufficient reason been advanced to displace the prima facie position that it would not be necessary to grant a second application and there is, in my submission, nothing really in the material to suggest that there was anything that is now put forward that could not have been put forward on the first application and your Honour could, in those circumstances, decline to grant the extension without a detailed consideration of the matters that would have been relevant had this been a first application for an extension.

As against the possibility that your Honour is against those submissions, that takes me to the second and third point that I want to address which really are addressed on the assumption that your Honour would approach this case much as if it was a first application for an extension of time.  The two critical matters then are explanation for delay and merits of the underlying case.  In terms of the explanation, there is nothing more before the Court now than was before the Court on the application for an interim injunction as to why the application was not made within time.  The further evidence does not touch on that question.

HER HONOUR:   The further evidence seems to me to go to ground 6 of the application.

MR DONAGHUE: Yes, and nothing else, as far as we can tell. So the position remains as it was then that the main explanation given is, “I applied for ministerial intervention under section 417 instead of seeking judicial review”. There is a passing reference made to the lack of funds to pursue the application, but no details or particulars have been given in relation to that and, in my submission, the unparticularised claim could not provide an explanation. Your Honour can see, I will not take the Court to it, but that explanation is advanced in paragraph 9 of the plaintiff’s current affidavit. It is also advanced in Ms Perera’s affidavit, her first affidavit in exhibit KK‑1, as the explanation for the delay.

In my submission, your Honour, the making of a section 417 application is a common justification, and has been for years, for failure to comply with legislative time limits and there is a very substantial body of authority, particularly in the Federal Court and the Full Federal Court, to the effect that it does not provide an acceptable explanation for a failure to comply with the time limit.

HER HONOUR: Is it only possible to make an application under section 417 where there is no extant appeal on foot or can they be running parallel?

MR DONAGHUE: Pursuant to the Act there is no impediment. There was for a period of years a legislative policy to the effect that the Minister would not consider as a matter – because there is no obligation to consider a 417 request and the Minister’s policy was, “I will not consider the exercise of this power while there is current litigation on foot”.

HER HONOUR:   Yes, I see.

MR DONAGHUE:   So that policy rather encouraged the reverse of what occurred here.  It said, if you want to litigate, litigate and once the litigation is finished, you can make an application under 417.  As I say, that has no statutory footing and my understanding is, in fact, that that policy has now changed, but I am not in a position to give the Court details in relation to that.

If I could take your Honour, only briefly, to two of the cases.  The first is the case behind tab 2 in our folder, Vu v Minister for Immigration and Citizenship [2008] FCAFC 59. It is a decision of the Full Federal Court. This case involved an appeal to the Full Federal Court from a decision by the Federal Magistrates Court which had found that a tribunal decision involved jurisdictional error, but had then concluded that because the challenge had not been made for two years, or about two years, relief would be refused in the exercise of discretion.

It was an appeal against that discretionary refusal of relief that came before the Full Court.  Part of the explanation for not seeking review for two years was a 417 application, but all of that really is significantly by way of distraction because the question that was dealt with that is relevant for present purposes was not the two-year delay but was the failure to appeal from the Magistrates Court within the time limit permitted for the bringing of the appeal.  If your Honour looks at paragraph [4], which is the first paragraph of Justice Jessup’s judgment, you can see in the last sentence his Honour referring to the fact that:

The present application for an extension of time was filed on 2 October 2007, ie about 14 weeks after the expiration of time for an appeal.

So the question that his Honour is dealing with in the passages I am about to take your Honour to is the question, had a sufficient explanation been advanced in relation to the 14-week delay referred to in bringing the appeal.  If your Honour then turns to paragraph [28] at page 13. 

HER HONOUR:   Paragraph [28], I have that.

MR DONAGHUE:   Yes.  If I could just go back to the last sentence of [27], your Honour can see there that his Honour accepted that the application might have had reasonable prospects of success, and he was in the minority on that point.  The other members of the Full Court thought that it did not have.  But even assuming reasonable prospects of success, his Honour then turned to the question of whether there was an acceptable explanation in paragraph [28].  He notes in the second half of that paragraph that the explanation proffered was that a request, that is another request, had been made to the Minister to substitute a more favourable decision for that of the Tribunal.  Then in paragraphs [29] and [30] his Honour rejects that explanation and this reasoning is adopted by the other two members of the court:

[29]     I do not think that the applicant’s approach to the Minister under s 351 –

Section 351 is identical to 417 in the MRT context –

of the Act provides an acceptable explanation for his failure to lodge an appeal within time. Indeed, particularly considering the timing of that approach, I am disposed to the view, in the absence of any helpful evidence from the applicant to the contrary, that the applicant’s present attempt to place himself in a position whereby he might lodge an appeal well out of time appears to be a kind of “Plan B” to which resort was had once the approach under s 351 proved unsuccessful.

[30]     This is not a case in which the applicant intended to appeal, but misunderstood the nature of his obligations, or in which there was a slip-up or oversight in the office of his solicitors.  The applicant was legally represented throughout . . . the inference, which I would draw, that the applicant and his advisors, being fully conscious of the time limit provided by the Rules of Court, chose not to appeal within that time.

So notwithstanding the possibility that the case had reasonable prospects of success, the taking of a judicial review application as a plan B once ministerial intervention failed was not, in the Full Federal Court’s view, an acceptable explanation.  That discussion of the topic takes place largely without reference to other authority, but if your Honour turns to the next case in the bundle ‑ ‑ ‑

HER HONOUR:   Tab 3?

MR DONAGHUE:   Tab 3, DAS v Minister for Immigration and Citizenship, a decision of Justice Sundberg, and his Honour, particularly from paragraph [8] through to [12], pulls together a number of, for the most part, single judge decisions in the Federal Court, several decisions of Justice Weinberg, Justice von Doussa, Justice Gray, Justice Heerey, Justice Goldberg and all of whom, in the passages that his Honour quotes, particularly in paragraph [9], indicate that a 417 application does not provide a satisfactory explanation for a failure to bring an application within a statutory time limit.  His Honour concludes in paragraph [11]:

What was said in the cases considered above applies to the present case. The making of the s 417 applications are not a special circumstances excusing the delay and warranting an enlargement of time in circumstance where the making of the applications implicitly accepted that the Tribunal’s decision would not be challenged.

On the previous occasion I handed up and I have referred in our outline to a decision of Justice Hayne in this Court in which his Honour took the same approach to whether a section 417 application provided a justification. So, your Honour, we submit that plainly a question that is relevant to the granting of an extension under 486A is whether there has been an acceptable explanation advanced and here we have none other than the reference to 417. I will come to some of the evidence that Mr Burnside referred to about what advice the plaintiff was given about that topic. I will come to that shortly.

HER HONOUR:   Yes, paragraph 9, I think.

MR DONAGHUE:   Yes.  But the position remains, even if he was not given the advice that he could have been given on that topic, what is the explanation for the delay?  There is no material before the Court that is capable of explaining the failure to comply with the time limit other than the explanation that has been advanced by both the plaintiff himself and his lawyer being an explanation that the authorities strongly indicate is not a sufficient explanation.  Now, if I could just deal with the evidence.  The plaintiff in paragraph 9 of his affidavit is dealing with – does your Honour have that paragraph before you?

HER HONOUR:   Yes, I do.

MR DONAGHUE:   He is there, in my submission, clearly referring to discussions between members of his group and “our lawyer”, that is, Ms Perera.

HER HONOUR:   I think there is evidence elsewhere, is there not, that she appeared for all 12 persons who came together on a boat?

MR DONAGHUE:   Yes, indeed, she did.  I am not sure all of them, but certainly many of them.

HER HONOUR:   Many of them.

MR DONAGHUE:   That paragraph is not dealing with the question of whether or not the plaintiff had discussions with officers of the Department.  It is dealing with whether he participated himself in discussions with his lawyer.  Mr Burnside suggested there is a conflict of the evidence on that point, but Ms Ngo’s affidavit deals not with a meeting between the plaintiff and his lawyers, but with a meeting between the plaintiff and officers of the Department.  In paragraph 5 of her affidavit ‑ ‑ ‑

HER HONOUR:   This is Ms Ngo’s affidavit?

MR DONAGHUE:   This is Ms Ngo’s affidavit.

HER HONOUR:   I will just turn that up, if I may.  Just give me a moment.

MR DONAGHUE:   Yes.

HER HONOUR:   Yes, I have that.

MR DONAGHUE:   If your Honour goes to paragraph 5.  This is the part that links into MN-3 that Mr Burnside mentioned.

HER HONOUR:   Yes.

MR DONAGHUE:   Ms Ngo deposes that:

officers of the Department met with the applicant and 4 other clients –

So the link between the applicant and the file note is in the evidence in the first sentence of paragraph 5 –

to discuss their immigration status following negative Tribunal decisions.  Annexed hereto and marked “MN-3” is a copy of a Departmental file note which indicates that the 5 clients, including the applicant, were advised of their rights to seek judicial review of the Tribunal decisions, but decided instead to seek ministerial intervention.

If your Honour then turns to MN-3, or depending on what is more convenient to your Honour, I have quoted the relevant part in paragraph 19 of our written outline ‑ ‑ ‑

HER HONOUR:   Yes, I have that.

MR DONAGHUE:   You can see not only were the applicants specifically advised that they had a right to seek judicial review, they were advised of the cut‑off dates for seeking that review.  The note records in its second paragraph:

The clients were thankful for the information and advised that they were going to seek Ministerial Intervention (s417) and were not going to pursue the matters in the court.  I advised the clients that this was a decision for them and the legal representation, however, after the critical date, may not be able to seek judicial review.  [T]he clients acknowledged this and again stated that their lawyers were going to the Minister.

So the position can, in my submission, be usefully compared to that in Vu because in Vu Justice Jessup said, “I will be prepared to infer, absent evidence to the contrary, that the applicant there had made a deliberate choice to pursue ministerial intervention rather than judicial review and that judicial review was a plan B backup option”.  But here we have, in the form of MN-3, direct evidence to that effect.  That kind of choice was regarded by the Full Court in Vu and by Justice Sundberg in DAS as very important on an extension of time point.  If I could just read to your Honour the last two sentences at paragraph [11] in DAS.  Justice Sundberg said:

Accordingly, the applicant made a considered decision to elect in favour of the s 417 course. That is not just an “indication” that he was prepared to accept the correctness of the Tribunal’s decision. It is a positive election no longer to challenge it.

So, in my submission, the evidence puts this applicant squarely in the factual situation of having made an election considered in both Vu and DAS and in those circumstances, the applicant completely fails, in my submission, to demonstrate that there is an adequate explanation for delay to warrant an extension.  That, your Honour, brings me to the final question on the question of merits where I intend to focus primarily on ground 6 given that that now seems to be the main focus.

The submission, as we understand it, and this emerges from the way ground 6 is drafted, is that there was an entitlement to have legal representation at the hearing, that the existence of that legal representation was essential to there being a fair hearing and that there were technical difficulties with the fine line such as to mean that effective representation was not available.

Now, all of that turns on Ms Perera’s affidavit.  If I could ask your Honour to turn to that.  It is the first affidavit in annexure KK‑1.  There is, in fact, little there to support this case.  If your Honour starts with paragraph 3, which Mr Burnside mentioned is part of the evidence about difficulties with interpreting, your Honour will see that that paragraph deals with the interview held with the Department.  It is not dealing with the Tribunal hearing at all:

That during the interview held by Department of Immigration and Citizenship I raised concerns about the quality of interpreting and that a number of interpreting errors had been made.

She says in the next paragraph that she could tell that because she is an accredited interpreter.  We then get to the hearing in paragraph 5 and in paragraph 6 the suggestion seems to be that Ms Perera could hear, at least to some significant degree, because she says she could hear well enough to see:

that the questions raised by the Tribunal Member and the [plaintiff’s] responses did not correspond with each other.

HER HONOUR:   The transcript is now available.

MR DONAGHUE:   Indeed, and I am going to come to that in a moment because, in my submission, it does not bear that out at all.  Just in terms of the question of how much could she hear or could not hear, the complaint in paragraph 6 is that there did not seem to be correspondence but she could not ascertain whether the translation was up to scratch because of the poor voice transmission and she says she raises this with the member.  I will come to the transcription in a minute.  Beyond that, we have in paragraph 8 what is, in my submission, really nothing more than an assertion of conclusion:

I was effectively unable to appear and represent my client before the RRT because of the extreme nature of the difficulties in the phone transmission.

So that does not provide us with any information about exactly what the nature of the difficulties was or what she was not able to do because she could not hear properly.  It just asserts the failure to be able to participate.  When one turns to the transcript, and I would ask your Honour to go to that now, it is exhibit NT 1 to Ms Trevascus’ affidavit, it really does not bear out what Ms Perera says.  If I could commence, your Honour, on page 3 of the transcript at line 16.  This is the end of an introduction by the Tribunal member and he says at line 16:

Are you able to understand our interpreter so far?

INTERPRETER:   Yes.

MR FISHER:   Okay.  If there’s any difficulty at any stage communicating with the interpreter, please let me know by raising your hand like this.  I’ll also expect our interpreter will bring it to my attention if he is having difficulty –

There is no suggestion in the transcript that any of that happened.  Most importantly, over the page on page 4 at line 7, Ms Perera interrupts:

MS PERERA:   Can I just interrupt you for a moment?

MR FISHER:   Sure, Ms Perera.

So there is no indication at that point that there is any hostility to the interruption and Ms Perera says:

I can’t hear anything you’re saying.  It’s all very faint.

So it is true, as Ms Perera says in her affidavit, that she did raise the problem.  That is where it was raised.

HER HONOUR:   I think it is also raised at the end.

MR DONAGHUE:   It is raised in relation to one ‑ ‑ ‑

HER HONOUR:   So there are two places.  It is raised on page 31 as well.

MR DONAGHUE:   Yes, and it is raised on page 31 apparently in relation to a particular question, but perhaps it is not limited in that way.  The important point from page 4, in my submission, is that the Tribunal asks:

MR FISHER:   What about anyone else?  Can you hear them?

MS PERERA:   I can hear the interpreter quite well and I can hear the applicant reasonably well but I can’t hear anything you’re saying.  Now I could hear you but not before, conducting the hearing.

MR FISHER:   All right, I’ll try and speak up.

MS PERERA:   Thank you very much, sir.

So, according to the transcript, she can hear the applicant, she can hear the interpreter, she is having some difficulty hearing the Tribunal member and the Tribunal member says that he will try to speak up and to rectify the problem.  Ms Perera does not, until the very end of the hearing in relation to a specific question from the Tribunal to her, indicate at any stage that she had not been able to hear what was unfolding during the Tribunal hearing.  Certainly it seems to be the case from what she says there that she could hear what the interpreter and applicant were saying.  From paragraph 6 of her affidavit she could hear the Tribunal member enough to be concerned that there was some disjunction between the questions and the answers.

Now, your Honour, in my submission, even if, one, on the face of the transcript Ms Perera does seem to have been prepared to indicate when she could not hear, there is nothing to suggest that the Tribunal was hostile to that or not prepared to try to change arrangements.  Ms Trevascus in paragraph 6 of her affidavit says that Ms Perera appeared for a number of applicants in this way by telephone link and that she did on a number of occasions raise problems hearing and that on those occasions the Tribunal changed the arrangements that it was making.  So if the position is – and we do not accept this – but if the position is that Ms Perera could not hear everything that was taking place, it is, in our submission, extraordinary that she would not have brought that fact to the Tribunal’s attention. 

In that regard, your Honour, if I could hand up an extract from a decision of this Court in a case Vakauta v Kelly which is not mentioned in our outline.  This is a case about bias, but the relevant point appears on page 572.  The case really concerned whether a judge having made comments that gave rise to a reasonable apprehension of bias in the presence of the lawyers, the lawyers were entitled to sit there and allow that problem to continue such that in the event that the decision ultimately went against them they would have a point that could be raised in order to challenge the decision that had been made.  At about point 5 on page 572 Justices Brennan, Deane and Gaudron say:

By standing by, such a party has waived the right subsequently to object.  The reason why that is so is obvious.  In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing.  It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment –

Now, all of the evidence suggests that all Ms Perera would have had to do if she was having problems was to say, “I’m having problems” and those problems would have been addressed.  The evidence, in fact, suggests that she could hear much of what occurred and to the extent that there is any substance in the point that is now made, it is a point that, in my submission, clearly should have been made at the time.

The other important point, your Honour, is that my friend’s submissions on this ground really seem to proceed on the assumption that the primary role of a migration agent or legal representative is played at the hearing.  So that if there was an impediment on Ms Perera’s participation actually at the hearing, then that meant that the applicant was denied legal assistance in the review process. 

In fact, the way a tribunal hearing is conducted gives a very limited role to the representative even when they are permitted to be present and the primary role is played either before or after the hearing in the course of developing the submissions.  That is important, your Honour, because here the evidence is that Ms Perera was given a copy of the hearing tape on 3 June.  Your Honour can see that in paragraph 10 of Ms Trevascus.

HER HONOUR:   I see that.

MR DONAGHUE:   That is five weeks before the Tribunal made its decision.  So if there was anything that happened at the hearing that she was concerned about or if she wanted to know in more detail what had happened at the hearing, the means of knowing that was readily before her.  She had been given the tape and she had been given it in time, well within time, to use it to make submissions or to participate in any other way that was necessary in the conduct of the review.  Even had she been physically present in the hearing ‑ ‑ ‑

HER HONOUR:   What was she given exactly five weeks beforehand?  Was it a copy of the recording of the Tribunal?

MR DONAGHUE:   The recording, yes.  The evidence is she was sent the tape.  She was asked whether she wanted it at the start of the hearing and she said she did and when the Tribunal returned to Melbourne from Christmas Island she put it in the mail by registered post and it was signed for on 3 June.  It is exhibit NT 2.

HER HONOUR:   Thank you.

MR DONAGHUE:   So even if it were the case that there was the transmission problem with immediate participation in the hearing, there is no real reason to think that that participation would have taken any different form than it did take because migration agents do not tend to be permitted to ask questions in Tribunal hearings.

Now, really, my submissions on the merits to this point have been directed to the factual claims and to reasons to conclude that perhaps the impediment to representation was not terribly significant, if it was significant at all, but even taking the applicant’s facts at their highest, in my submission, there is not any prospect on this argument that a jurisdictional error could be established, because the argument, as I understood it, really involves the proposition that a hearing that is unfair is invalid. 

This hearing was unfair because of the transmission problem, therefore, we have a jurisdictional error, but that submission is at far too high a level of generality, particularly having regard to 422B of the Act. Here the reality is that the role of representative is specifically addressed in the Migration Act. It is addressed in section 426(7) of the Act and that section makes it completely clear that it would not have been a jurisdictional error for the Tribunal to have excluded Ms Perera from the hearing entirely. Now, Mr Burnside’s point is that it did not do that. It allowed Ms Perera to participate and once that step had been taken, the participation had to be more fulsome, but both the terms of the section and the authorities that have considered it do not bear that point out.

More generally – and I will develop this shortly – the authorities that have considered the role of a migration agent in a tribunal review hearing also do not bear it out.  There I am foreshadowing a reference to a decision of this Court in a judgment in which your Honour participated in, SZFDE, which was the case about a fraudulent migration agent.  That case and a number of authorities in the same line strongly suggest that mere negligence on the part of an agent will not be sufficient to create a jurisdictional error in the decision of the Tribunal.

HER HONOUR:   Well, here, I think, Mr Burnside has accepted that the legal representative might have done better.

MR DONAGHUE:   Indeed.

HER HONOUR:   There is no need for me to make any findings in relation to that aspect of the matter.

MR DONAGHUE:   There is not, but even if it were the case, and I am not suggesting this is the case, but even if it were the case that Ms Perera was completely negligent in her representation of the applicant, that she should have been protesting that she could not hear properly, that she should have been advising him not to answer questions because of confusion, that she should have been objecting to the quality of the interpreter, even if she was negligent in not taking any of those steps, the authorities make it clear that that negligence does not translate into jurisdictional error. 

If the complete failure of an agent to participate in circumstances where they should have participated properly in order to do their duty would not result in a jurisdictional error, it is, in my submission, impossible to see how a technical impediment to participation creates a jurisdictional error.  The fact is in both occasions it cannot be said that the Tribunal was responsible, either in the negligence case or in this case, for any difficulty that the agent had in participating and the role of the agent, even if the role is discharged wholly and adequately, is not such as to give rise to a jurisdictional error.

Now, Mr Burnside made a particular point in that regard about the significance of the consequences that might arise from an RRT decision if you are not permitted effective representation and to a certain extent clearly it is true that RRT decisions are important decisions that can have very significant implications for the lives of persons involved, but that context is the very context in which Parliament has enacted section 426(7), that is, in the context of a body only concerned with making decisions about refugee cases Parliament has said you have no right to legal representation.

It is interesting in that regard to contrast that position with the position in the Migration Review Tribunal. I might just take your Honour briefly to the section. It is 366A of the Act. It is a useful comparator because here in the context of the MRT, the Act does give you a right to have an assistant present during the hearing, but it then expressly makes it clear:

(2)The assistant is not entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so.

(3)Except as provided in this section, the applicant is not entitled, while appearing before the Tribunal, to be represented by another person.

So even when the Act does give you a right to be represented before a tribunal, it very heavily circumscribes the role that the representative can play. But then, by reason of the absence of that provision and the presence of 427(6), Parliament has made clear an intention that the position in the RRT is that you do not even have that right.

So the central role that ground 6 seeks to give to the participation of a representative in a hearing, in my submission, cannot be sustained having regard to the terms of the Act and to the authorities that demonstrate that negligent failure to discharge a role, if given an opportunity to do so, that is, if the Tribunal does decide to let you have a representative even if your representative negligently fails in the discharge of their role, still would not result in a jurisdictional error.

I will not take your Honour in any detail to the authorities, but we have referred in our outline to the case in the Full Federal Court in Appellant WBAZ v Minister for Immigration & Multicultural & Indigenous Affairs, which is behind tab 6.  If I could refer your Honour, without going to it, particularly to paragraph 62 through to 67 where his Honour Justice French, as he then was, together with Justice Lee collect a number of the authorities about representation in the RRT and section 427(6), including authorities which expressly reject the proposition that procedural fairness gives a party equivalent rights to appear to those that they would have in a court. 

So, really, the gravamen of that submission, your Honour, is that even if all of the facts were accepted at their highest against us, what is complained about would not be a jurisdictional error on very clear and settled authority in the Full Federal Court.  Your Honour, the only other ground I think I need to address is the question of interpretation which seems to be raised as one of the sub‑points within ground 5.

HER HONOUR:   Yes.

MR DONAGHUE:   Your Honour, in that regard, the main point is that there is no evidence at all before the Court that any particular statement was not interpreted properly.  There is not even evidence of a general character that there were serious problems with interpretation and before the applicant would get to first base on an argument in relation to jurisdictional error through lack of interpretation, there would need to be evidence that points to what was said, to how it was mistranslated and then an identification of the fact that that evidence was important in some way to the decision that was made, that it related to a point that was in issue.  

Here the position is that this applicant failed because in his initial interview with the Department he was asked, amongst other things, do you have any political opinion?  Do you or your family have any political opinion?  He said no and his answers as to the reasons that he wanted to come to Australia related to wanting to escape generalised violence in Sri Lanka and to work as a fisherman.  Then, subsequently, before the RRT detailed claims as to political involvement were made and the obvious credit question that confronted him before the Tribunal was, how do you

account for the fact that you expressly disclaimed political involvement when asked to explain why you wanted to stay in Australia and then you claimed detailed political involvement subsequently?

There is no reason at all to conclude that any problem with interpretation had any bearing whatsoever on that disparity.  Indeed, at the hearing, as your Honour will have seen, the applicant tries to explain the disparity.  He does not say there is no disparity between the two stories.

HER HONOUR:   I think it is fair to say he gives answers on several occasions in relation to that difficulty in his case.

MR DONAGHUE:   Yes.  So he knows that the difficulty is there and it cannot be said that the difficulty is a creation of an interpretation problem.  It is a difficulty that he clearly had to confront and he attempted to confront it in his hearing and it is, in my submission, not sufficiently raised or, indeed, on the material raised at all that there was a problem with the interpretation of a kind that could even arguably be said to result in a jurisdictional error.

So, for those reasons, your Honour, even if the Court approaches this as if it were a first application for an extension, both on the question of explanation for the delay and on the question of merits, the case is so strongly against the applicant that no extension of time is warranted.  Unless the Court has any questions, those are my submissions.

HER HONOUR:   Thank you, Dr Donaghue.  Yes, Mr Burnside.

MR BURNSIDE:   Your Honour, on my learned friend’s first point that you should treat this as a second application and in some way apply identical criteria differently because of that, in our submission, there is no warrant for that approach.  Rather, the approach would be that if in the circumstances of a particular case a second application were regarded as vexatious, then it would be dismissed on that ground.  But, of course, you know from the history of the matter that the federal magistrate was disposed favourably to grant the extension but did not have before her the evidence in a form that was admissible, perhaps because of the urgency with which the matter had been brought on.  But that being the case, the reality is that the application for extension on the material that we rely on has not previously been run.

In addition, if our learned friend’s submission is right that you should understand the relevant provisions as precluding any avenue of appeal and you should therefore say that a second application is not permissible, it raises the question, why there is statutory provision for an application for extension both to the Federal Magistrates Court and to this Court.  In our submission, the existence of those two provisions simply is inconsistent with the submission made.

The second point is in relation to Vu’s Case that our learned friend referred to.  Vu’s Case again was an application for extension of time pursuant to the provisions of the Rules of the Federal Court which contains explicitly a requirement of special reasons being shown quite different from the criteria in the section with which you are concerned.  In our submission, the only question here is whether in the circumstances of delay, such as they may be in a particular case, can it be said that it is not in the interests of the administration of justice to grant the extension?  Whilst we accept that delay itself might be a factual element in applying the normative consideration in the criterion, it is not the case that delay is a separate condition which needs to be satisfied.

We would say in addition on the particular facts about the taking of a section 417 application, it is clear on the evidence that his election to pursue a 417 application was an uninformed one and exhibit MN-3 does not even suggest either that a specific terminal date for an appeal was identified. All it says is that there will be a time limit for an appeal. In addition, MN-3 does not say that a 417 application precluded the possibility of an appeal. In our submission, really what my learned friend is suggesting is that the plaintiff here made an informed choice to pursue one of two mutually inconsistent paths and cannot now be seen to change that decision and revert to the alternative path. That is simply not the case on the facts.

The next matter my learned friend raised was aspects of the evidence about the hearing.  This really just goes to the merits and, in our submission, your Honour should not be drawn too far down that track.  The evidence of Ms Perera does raise squarely concerns about her capacity to participate in the hearing because of the difficulties of the phone line and she also raises the problems with interpretation.  Can I say, your Honour, we can make all the speculative guesses we like about what she might have done, whether she had an opportunity to intervene, whether she had an opportunity part way through to say, “Well, something must be happening, but I can’t hear it, so please speak up”. 

These are matters that can only really be explored properly by the federal magistrate listening to the tapes to see whether in truth Ms Perera had a proper opportunity to raise the difficulties that she now speaks of. It is certainly not a matter for this Court. In our submission, it is enough that there is evidence before you which, if ultimately accepted, would justify a finding that the hearing involved a jurisdictional error because it was not a fair or just hearing as the Act requires.

My learned friend, I think, also made a subordinate point that Ms Perera could have made submissions after the event to the Tribunal after receiving the tapes.  There are two things to be said about that.  The first is that it is not clear that she was conscious of having received the tapes.  I accept that there is evidence of Ms Trevascus about that, but you will also recall that there is evidence ‑ ‑ ‑

HER HONOUR:   I think there was evidence that they were signed for.

MR BURNSIDE:   That is so.  I accept that.

HER HONOUR:   As I understood it, it seemed to be Australia Post presumably delivered registered mail.

MR BURNSIDE:   Presumably.

HER HONOUR:   That is what the evidence seemed to indicate.

MR BURNSIDE:   I accept that.  But then there is also the evidence of Mr Leske, our instructing solicitor, about his attempts to get the tapes.

HER HONOUR:   From Ms Perera.

MR BURNSIDE:   From Ms Perera, who said you will have to apply to the Department.  There was all sorts of running around, I think, the day after the parties were last before you in an attempt to get hold of the tapes and that is extraordinary if it is the case that Ms Perera was conscious of having received them already.  Now, that is a mystery that does not need to be resolved today, but you should not proceed on the footing that she was aware at all relevant times that she had the tapes, could listen to them, could make submissions and so on.  But even if one makes that assumption, there is the fact deposed to by Mr Leske in paragraphs 15 and 16 in his second affidavit that there were extreme difficulties with the audio quality of the tapes and that is why, apparently, the transcription of them has been so delayed.

It is likely to be the case, your Honour, that if the matter is remitted to the Federal Magistrates Court, a qualified interpreter will have to sit down and struggle through them despite their audio problems in order to see what can be heard and whether both sides of the conversation are being truly interpreted in a way that is accurate, but that is not a matter for this Court, in our submission.  The issue is squarely raised.  It has consequences if it is ultimately made out and all we need to do, in our submission, is show that there is a serious question to be tried.

The final point I want to mention is that our learned friend says, well, in any event because of section 427(6) you do not have a right of representation so having inadequate or defective representation because of the physical circumstances does not matter.  In our submission, that is not correct.  It is true that 427(6) says you do not have a right in all circumstances to be represented.  On the other hand, it is clearly open to the Tribunal to allow representation where it is appropriate.  That was the case here.  If the Tribunal thinks representation is appropriate or if the Court subsequently thought representation was appropriate in a particular case in order for the hearing to be fair and just, then the requirements of fairness and justice mean that you are entitled on that occasion to have representation.

If that is the position, then, in our submission, the right to representation means the right to effective representation, not just a sham, but a real form of representation where the representative can participate meaningfully.  In our submission, the evidence shows plainly that in the circumstances of this case representation was justified but it was not effective because of the physical circumstances.  Unless there are any other matters, those are the only points in reply.

HER HONOUR:   Thank you, Mr Burnside.

MR BURNSIDE:   I should say one thing, your Honour, if you are not in a position to decide the matter today, it would be necessary, in our submission, to extend the injunction until you are able to.

HER HONOUR:   Yes.  I will be in a position to decide the matter today.  I will just take a few moments.

MR BURNSIDE:   If your Honour pleases.

HER HONOUR:   On 7 October 2009, the plaintiff, a national of Sri Lanka, filed an application for an order to show cause seeking writs of certiorari, prohibition and mandamus, an injunction and a declaration in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 9 July 2009.  The matter was brought before me for hearing urgently on 7 October 2009:  Plaintiff M90/2009 v Minister for Immigration and Citizenship (2009) HCATrans 262. Interim injunctive relief was granted ordering that the Minister not remove the plaintiff from Australia until 4.00 pm on Friday, 16 October 2009. The proceedings were adjourned until today. It can be noted that the second defendant filed a submitting appearance on 15 October 2009.

The plaintiff arrived in Australia on 27 November 2008 by boat as an unauthorised arrival.  He was placed on Christmas Island.  The plaintiff applied to the Department of Immigration and Citizenship (“the Department”) on 12 February 2009 for a Protection (Class XA) visa.  A delegate of the Minister refused the application on 26 March 2009.

On 9 July 2009, the Tribunal affirmed the decision not to grant the plaintiff a Protection (Class XA) visa.  On 10 July 2009, the plaintiff and his legal representative were advised of the decision.  On 5 August 2009, the plaintiff, together with four other asylum seekers who had arrived with him, participated in a meeting with officers of the Department.  The officers informed the plaintiff and the other asylum seekers of the dates by which they were required to seek judicial review of the Tribunal’s decision.  The plaintiff and the four other asylum seekers indicated to a departmental officer that they were going to seek ministerial intervention and were not going to pursue judicial review in the courts.  The plaintiff has sworn that this occurred as a result of the legal representative advising that “it would be quicker to appeal to the Minister”.  In any event, this decision on its face is a decision or election not to challenge the Tribunal’s decision:  Das v Minister for Immigration and Multicultural Affairs (2004) 208 ALR 229.

The plaintiff’s application for ministerial intervention pursuant to section 417 of the Act was made on 7 August 2009. On 23 September 2009, the Minister decided not to exercise his discretion to intervene in the plaintiff’s case. The plaintiff was advised of that decision on 28 September 2009.

As already noted, on 7 October 2009, the plaintiff filed an application for an order to show cause.  This occurred in the context that the plaintiff was unsuccessful in the Federal Magistrates Court in applying for an extension of time within which to institute proceedings.  This proceeding is not an appeal from a decision of the Federal Magistrates Court.  It is a second, discrete application for an extension of time made on different evidence.  The fact that this is a second application would not, of itself, warrant dismissal of the application. 

The plaintiff has filed four affidavits in support of the application to extend the time as necessary within which to bring the proceedings. The first defendant has filed two affidavits in opposition. Section 486A(1) of the Migration Act 1958 (Cth) (“the Act”) imposes a 35‑day time limit upon any application to the High Court for a remedy to be granted in exercise of the Court’s original jurisdiction in relation to a migration decision. In the plaintiff’s case that time limit expired on 14 August 2009. As the plaintiff’s application was filed on 7 October 2009, the plaintiff requires an extension of time under section 486A(2) of the Act. The delay in question is, relatively speaking, not a very long delay.

On 13 October 2009, the plaintiff filed submissions in support of an extension of time under section 486A of the Act. Amended submissions were filed by the plaintiff on 14 October 2009, but these amended submissions did not alter the substance of the submissions filed the day before. The Minister filed submissions on 14 October 2009 opposing an extension of time under section 486A(2). The plaintiff and the Minister have both supplemented their written submissions with oral argument today.

Before making an order extending time under section 486A(2) this Court must be “satisfied that it is necessary in the interests of the administration of justice” to do so. Although there are not as yet any decisions of this Court concerning the factors that are relevant in determining an application for an extension of time under section 486A(2), decisions of this Court concerning applications for extensions of time under the High Court Rules reveal considerations which are also relevant to the present application. In Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 at 474 paragraph 15, [2000] HCA 67, Justice McHugh pointed out that in cases where the issue of the constitutional prerogative writs is sought, the public interest is engaged because the relief which is sought is:

“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”.

Factors relevant to an application to extend time, including an extension under section 486A(2), include not only the length of the delay and the reasons for the delay, but also the strength or weakness of the case now sought to be advanced and the utility of advancing that case.

The plaintiff has given two reasons for his delay in bringing these proceedings.  The first is that the plaintiff decided to seek ministerial intervention and only came to this Court after the Minister refused to intervene in the plaintiff’s case and after he had made an application to the Federal Magistrates Court.  The second is that the plaintiff claims not to have had sufficient funds to commence judicial review proceedings.

The plaintiff’s decision to seek ministerial intervention rather than commence legal proceedings within time is not a sufficient reason to justify the plaintiff’s delay in bringing the present application to this Court.  In Re Minister for Immigration and Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364 Justice Hayne in an ex tempore judgment said:

“Resort to the alternative path provided by sections 48B and 417 of the Act entailed, so the applicants contended, that there be no continuing legal proceedings extant. Nonetheless, the pursuit of that path is, in my opinion, not a sufficient explanation for the failure to institute proceedings making the allegation which now it is sought to pursue. That of itself would be reason enough to conclude that the proceedings brought should stand dismissed.”

As regards the plaintiff’s second reason, the plaintiff has asserted that he lacked the necessary funds to institute proceedings within time.  No particulars of the plaintiff’s financial position are provided so there is no basis upon which to assess the assertion made.  These considerations are not a sufficient explanation of the delay in bringing the application to this Court.

As in Vu v Minister for Immigration and Citizenship [2008] FCAFC 59, bringing a late application in this Court appears to be an alternative approach to be employed after the application under section 417 has failed. This is sufficient reason for finding that it is not necessary in the interests of the administration of justice to grant an extension under section 486A(2) of the Act. However, because the delay is relatively short, it is appropriate to also approach the matter by consideration of the utility of granting an extension of time.

The plaintiff’s application for an order to show cause advances seven grounds of review.  The plaintiff’s outline of submissions in support of an extension of time mainly addresses ground 6, although there is a suggestion of faults in interpretation relevant to ground 5.  With that exception, evidence is not otherwise directed to the other grounds.

The plaintiff’s oral arguments today, advanced by senior counsel, Mr Burnside, have focused upon ground 6. However, grounds 1 to 5 and ground 7 are not abandoned. In any event, I am not satisfied that the plaintiff has raised a case in respect of grounds 1 to 5 or ground 7 which has any reasonable prospect of success. Ground 6 alleges that the Tribunal breached section 425 of the Act and/or denied the plaintiff procedural fairness. That ground is particularised as follows:

“a.The Plaintiff was represented by a migration agent at the Tribunal hearing.

b.The migration agent appeared via telephone.

c.The phone transmission was poor, to the extent that the migration agent could not hear what was transpiring at the hearing.

d.The difficulties in transmission were raised at the hearing.

e.The poor quality of the transmission had the practical effect of denying the Plaintiff the legal representation that he was entitled to.”

It is evident from the particulars that this argument presupposes that the plaintiff was entitled to legal representation at the hearing. Regard can be had to section 427(6)(a) of the Act which provides that:

“A person appearing before the Tribunal to give evidence is not entitled . . . to be represented before the Tribunal by any other person”.

Section 427(6) applies to applicants for review who appear before the Tribunal to give evidence:  see WABZ v Minister for Immigration and Multicultural and Indigenous Affairs (“WABZ”) (2004) 134 FCR 271 at 294, paragraph 67 per Justices French and Lee. In WABZ Justices French and Lee held that in an appropriate case procedural fairness may require the discretion conferred by section 427 to be exercised to permit representation at a hearing.

The Minister has submitted that the rules of procedural fairness no longer apply to hearings of the Tribunal except within the terms of section 422B. However, it is not necessary to have resort to section 422B in this case because there was no denial of procedural fairness of the facts of this case. Assuming, for the purposes of this case, that the Tribunal was obliged to provide an adequate opportunity for the participation of the plaintiff’s legal representative at the Tribunal hearing, that opportunity was not denied by the Tribunal.

I have carefully read the entire transcript of the proceedings before the Tribunal.  The plaintiff’s legal representative, Ms Perera, stated on two occasions that she had difficulty in hearing the proceedings.  The first, close to the start of hearing, was transcribed as follows:

“MS PERERA:         Can I just interrupt you [the Tribunal] for a moment?

MR FISHER:            Sure, Ms Perera.

MS PERERA:           Mr Fisher, I can’t hear anything you’re saying.  It’s all very faint.

MR FISHER:            What about anyone else, can you hear them?

MS PERERA:           I can hear the interpreter quite well and I can hear the applicant reasonably well but I can’t hear anything you’re saying.  Now I could hear you but not before, conducting the hearing.

MR FISHER:            All right, I’ll try and speak up.

MS PERERA:           Thank you very much, sir.”

The second, closer to the end of the hearing, was transcribed as follows:

“MR FISHER:          Anything from you, Ms Perera?

MS PERERA:           I can’t quite hear you, Mr Fisher.  Could you repeat that please.

MR FISHER:            Was there anything that you wished to say?

MS PERERA:           No, I don’t wish to make any submissions.”

If Ms Perera could not adequately hear the proceedings it was her responsibility to raise that matter with the Tribunal. If, having raised that matter with the Tribunal, the Tribunal refused to remedy that difficulty then this might have raised a question of procedural fairness that would require consideration of the operation of section 422B of the Act.

There is also an affidavit before me sworn by Ms Nicole Trevascus which deposes to the fact that on each occasion when Ms Perera brought any problem with telephone reception to the Tribunal’s attention adjustments were made so as to ensure that Ms Perera could hear all parties.  Furthermore, Ms Perera was given a mobile number on which Ms Trevascus could be contacted in case of any difficulties in telephone transmission.  Ms Perera was provided with a copy of the recording of the Tribunal hearing on 2 June 2009, which was delivered by Australia Post on 3 June 2009.  This was some five weeks before the Tribunal made its decision. 

Five further matters should also be noted.  First, at the commencement of the Tribunal hearing, the Tribunal stated:

“If there’s any difficulty at any stage communicating with the interpreter please let me know by raising your hand like this.  I will also expect our interpreter will bring it to my attention if he is having difficulty understanding you.  If you don’t understand any of my questions, please ask me to repeat or rephrase them.  It is very important that we understand each other.  If you want to take a break at any stage, just let me know.  Before we finish you will have the opportunity to confer with your representative and to add anything else you might wish to add that I haven’t already asked you about.”

Secondly, it can be noted that the interpreter sought clarification from time to time and also that the plaintiff indicated he could understand the interpreter.  Thirdly, Ms Perera has provided no examples or particulars of any deficiencies in interpretation as alleged by her.  Fourthly, and perhaps most importantly, the plaintiff gave many comprehensive answers during the course of the hearing.  Many of these concerned the main issue of the differences between two varying accounts of his situation.

Finally, a proffered opportunity to adjourn the matter if necessary to confer with his legal adviser was declined by the plaintiff, except that the plaintiff asked for five minutes with his legal representative.  The transcript records that the proceedings were then stood down for eight minutes.

These circumstances, taken singly or together, do not reveal any breach of the Act or denial of procedural fairness as alleged. It should also be mentioned that in his affidavit sworn on 13 October 2009 the applicant makes various complaints about his legal representation at the hearing which differ in some respects from the matters set out in the application and about which I make no findings.

It is sufficient for present purposes to note that there is no allegation of fraud on the Tribunal.  As observed by this Court in SZFDE v Minister for Immigration and Multicultural Affairs (2007) 223 CLR 189 at 207, paragraph 53 per Chief Justice Gleeson and Justices Gummow, Kirby, Hayne, Callinan, Heydon and Crennan:

“there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made”.

Because the plaintiff has not demonstrated an arguable case of jurisdictional error in that the hearing was unfair or otherwise in breach of relevant provisions of the Act, there would be no utility in granting the extension of time which he seeks. Accordingly, it is not necessary in the interests of the administration of justice to grant the extension sought. For this reason, and also by reason of the failure to adequately explain the delay in bringing the application to the Court, the application for an extension of time under section 486A(2) is refused.

The orders are:

1.Injunction granted on 7 October 2009 is dissolved.

2.The application for an extension of time is dismissed with costs, including costs reserved.

MR BURNSIDE:   If the Court pleases.

MR DONAGHUE:   If the Court pleases.

HER HONOUR:   Adjourn the Court.

AT 11.42 AM THE MATTER WAS CONCLUDED