Plaintiff M94-2007 v MIAC & Anor

[2007] HCATrans 714

[2007] HCATrans 714

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M94 of 2007

B e t w e e n -

PLAINTIFF M94/2007

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

KAREN SYNON MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 21 NOVEMBER 2007, AT 9.38 AM

Copyright in the High Court of Australia

PLAINTIFF M94/2007 appeared in person.

MR R.C. KNOWLES:   If the Court pleases, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you.  Are you appearing for yourself?  I beg your pardon?  Who is appearing today?

THE INTERPRETER:   I am the interpreter, your Honour.

HER HONOUR:   The interpreter.  Yes, very well.  You wish to make submissions on your own behalf?

PLAINTIFF M94/2007 (through interpreter):   Yes, your Honour.

HER HONOUR:   Yes, very well.  Just before you commence the Deputy Registrar will administer the oath to the interpreter.

MS JAYASINGHE, affirmed as interpreter.

HER HONOUR:   Thank you.  You may commence.

PLAINTIFF M94/2007 (through interpreter):   Your Honour, I need more time to be with this case a bit longer.

HER HONOUR:   Yes.  Anything else the applicant wishes to say to the Court?

PLAINTIFF M94/2007 (through interpreter):   The reason being that since my case was heard in the Federal Court the situation has changed and many things have happened regarding my case so therefore I need more time to consider all that.....

HER HONOUR:   Yes, very well.  Thank you.  Yes, Mr Knowles.

MR KNOWLES:   Your Honour, in this matter there has been a summons and supporting affidavit filed and served.  The summons is dated 13 November.  Has your Honour had an opportunity to see that summons?

HER HONOUR:   Yes, I have.  You are seeking an order that the application be refused on a number of grounds?

MR KNOWLES:   That is correct, your Honour, yes.

HER HONOUR:   Yes.

MR KNOWLES:   The first ground is in relation to the need for there to be, if the matter is to proceed, an extension of time and it is submitted that no extension of time ought to be granted.  The other grounds basically relate to res judicata, issue or Anshun estoppel or abuse of process arguments.  In relation to the latter, it is noted that the Refugee Review Tribunal decision in this matter has been the subject of proceedings before the Federal Magistrates Court and then the Federal Court on appeal from the decision of the federal magistrate.

The next step, it is submitted, ought to have been an application for special leave to appeal to this Court. That has not happened. It could still happen in circumstances where the applicant were to apply for leave to apply out of time for special leave. That is really why the first defendant submits that the present proceeding is an abuse of process. That is the appropriate course to take as distinct from the course that has been taken whereby the plaintiff has brought proceedings in the original jurisdiction of the High Court pursuant to section 75(v) of the Constitution. I am not sure whether your Honour would like me to go through the background to the matter in any great detail.

HER HONOUR:   I am aware of the sequence of events.

MR KNOWLES:   It is all set out in the affidavit of Mr Brown.

HER HONOUR:   Yes, and I have read that and you can proceed on the basis you do not need to repeat those matters.

MR KNOWLES:   If your Honour pleases.  In terms of the first argument that I put to your Honour in relation to the first aspect of the summons concerning time limits, in this case when one goes to the application to show cause clearly the plaintiff has problems and that the need for there to be an extension of time, albeit having been expressed in the application, is being sought pursuant to Order 60, rule 6 which would suggest that that relates to a former version of the High Court Rules.

Needless to say, the relevant time limits are the same in the present form of the High Court Rules as they were in the old form of the High Court Rules.  In relation to an application for a writ of certiorari, the time limit was six months, in relation to an application for the writ of mandamus, the time limit was two months.  The relevant decision in question, that of the Refugee Review Tribunal, was made in March 2006 and the application to this Court was made on 3 September 2007.

It can therefore be seen that in terms of certiorari the application is nearly 12 months out of time, in relation to mandamus the application is nearly 16 months out of time.  There is one other form of relief which is sought which is a writ of prohibition and on the basis of what has previously been said by, for instance, Justice McHugh in the decision of Re Ruddock; Ex parte Reyes (2000) 177 ALR 484. It is submitted that prohibition is not an appropriate remedy in these types of cases.

In terms of the request for an enlargement of time, it is my submission that no enlargement is warranted in the present case.  As has previously been said by Justice McHugh in the decision of Re Commonwealth; Ex parte Marks, when there is such a significant delay as has arisen in the present case there needs to be something exceptional about the case and there needs to be some consideration of the explanation for the delay.  In the present case it is submitted that the plaintiff has not shown any exceptional circumstances to justify a delay of nearly 12 months in the case of certiorari and ‑ ‑ ‑

HER HONOUR:   Has there been any relevant rule changes between those observations of Justice McHugh and the present day?

MR KNOWLES:   There have been rule changes but, in my submission, the relevant time limits are the same.  Those observations made by Justice McHugh were made in 2000 and since then, obviously, the High Court Rules were amended in 2004.  In terms of the substance of the Rules there has not been, in my submission, any change.  The principles remain the same such that one looks to what explanation has been given for the delay.  One looks to the merits of the underlying case and what Justice McHugh said is when one has such a significant delay, it may be that having regard to the merits is something of a lesser exercise. 

In this case, firstly, there seems to be, having regard to the material before the Court, no real explanation for the delay other than the fact that the plaintiff was involved in trying to challenge the same decision before the Federal Magistrates Court and the Federal Court.  Otherwise, in terms of the merits of the present application, the grounds set out in the application for an order to show cause are unparticularised and a set of submissions which was filed and served with the application to show cause again the grounds are unparticularised.

There is no real basis upon which it can be said, having regard to at least the grounds in the present form, that there is an arguable case disclosed and, in my submission, that is also supported when one has regard to the Tribunal decision, the subsequent consideration of the Tribunal decision by the Federal Magistrates Court and then the consideration of those two decisions by Justice Tracey in the Federal Court.

They are the submissions in relation to the extension of time issue.  I have briefly canvassed the submissions which are put in terms of the abuse of process point which is an alternative argument if an extension of time were to be granted and further alternative arguments arise in relation to issues concerning res judicata or issue or Anshun estoppel.  However, I am mindful of the fact that in the past there has been some reluctance to delve into those areas in these types of cases but it is my submission ‑ ‑ ‑

HER HONOUR:   It just occurred to me, I have just noticed that Madam Interpreter is not actually interpreting what you are saying.  I thought she was.  I was looking at you.  I think, under those circumstances, if you would just recap your main points.

MR KNOWLES:   Yes, slowly.

HER HONOUR:   I am sorry, Madam Interpreter, you were sitting quite close and I thought you were conveying the substance of what was being said. 

In the circumstances, Mr Knowles, I think it would be only fair to repeat the substance of your arguments and perhaps do so slowly to make sure – would you give an indication, Madam Interpreter, if the submissions are being made too quickly?

THE INTERPRETER:    I shall.

HER HONOUR:   Thank you.

MR KNOWLES:   I apologise for that, your Honour.

HER HONOUR:   Yes.  I am sorry, I simply did not notice.

MR KNOWLES:   No, your Honour.  The first defendant, that is the Minister, has filed and served a summons and supporting affidavit.  In that summons and affidavit details are set out as to why it is said by the Minister that this matter should be effectively dismissed.  The first basis for that submission is that the application to the High Court is made out of time and, in fact, has been made some 12 months out of time.  The only explanation for the delay is that other proceedings in relation to the same Refugee Review Tribunal decision have brought in the Federal Magistrates Court and the Federal Court.

For that reason the first defendant, the Minister, submits that the application for an extension of time should be refused, otherwise it is noted that the materials before the Court do not provide any details of why it is said that the Refugee Review Tribunal’s decision in this particular case was affected by jurisdictional error.  To this end, the documents do not disclose an arguable case.  Otherwise, in the alternative, it is submitted by the Minister that the present proceeding is an abuse of process.

The reason for that is that it is submitted by the Minister that the plaintiff ought to have applied for special leave to this Court to appeal from the Federal Court’s decision rather than applying directly to this Court in its original jurisdiction.  Alternative arguments are made by the Minister in support of the application to summarily terminate this proceeding.  Those alternative arguments relate to the principles of res judicata, issue estoppel and Anshun estoppel.  I do not think there is anything further that I would wish to add at this point, your Honour.

HER HONOUR:   Yes, thank you for your assistance.

MR KNOWLES:   If your Honour pleases.

HER HONOUR:   I invite the plaintiff to make any further submission which he wishes to make.

PLAINTIFF M94/2007 (through interpreter):   I still reiterate the fact that I need further the time because I have to.....and find a barrister who can represent me in the court so therefore.....

HER HONOUR:   Thank you.

On 3 September 2007 the plaintiff, a citizen of Sri Lanka, commenced a proceeding in the original jurisdiction of this Court seeking relief directed to a decision of the Refugee Review Tribunal handed down on 24 March 2006.  The plaintiff has appeared for himself today through an interpreter.

The plaintiff arrived in Australia on 30 August 2005 and made an application for a protection (class XA) visa on 4 October 2005.  On 6 December 2005 a delegate of the first defendant refused to grant the protection visa.  On 14 December 2005 the plaintiff sought review of that decision in the Refugee Review Tribunal.  On 24 March 2006 the Tribunal handed down its decision affirming the delegate’s decision not to grant the visa. 

On 21 April 2006 the plaintiff applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.  No grounds were cited but the application stated that the applicant feared for his safety if he returned to Sri Lanka.  That application was listed for hearing on 24 May 2006, however the plaintiff failed to attend.  The plaintiff’s application was dismissed.

On 18 August 2006 the plaintiff’s application to the Federal Magistrates Court was reinstated by consent.  On 31 August 2006 the plaintiff filed an amended application for review.  On 22 May 2007 the Federal Magistrates Court handed down its decision dismissing the application for review.

On 1 June 2007 the plaintiff appealed to the Federal Court against the whole of the decision of the Federal Magistrates Court.  On 6 August 2007 this appeal was dismissed.

On 3 September 2007 the plaintiff filed an application for an order to show cause in this Court seeking an extension of time within which to file his application and seeking orders of certiorari, mandamus, prohibition and further remittal of the matter to the Refugee Review Tribunal, almost one and a half years after its decision was handed down.

On 13 November 2007 the Minister filed a summons seeking an order that the application be refused on a number of grounds including that the application has been made out of time; the plaintiff is prevented by res judicata and/or issue estoppel from making his application; the plaintiff has not demonstrated an arguable case; and the application is an abuse of process.

The application to this Court is made outside the times fixed by the Rules of Court for making application for certiorari and mandamus (see rules 25.06.01 and 25.07.2), and those contained in the Migration Act 1958 (Cth). The applicant submitted today that he sought more time to deal with the case because “many things have happened” since the matter was commenced. No details were forthcoming and no real case was made out for an extension of time.

The availability of prohibition and injunction depends upon whether the impugned decision of the Tribunal is liable to be quashed by granting certiorari.  See Re Ruddock; Ex parte Reyes (2000) 177 ALR 484 at 488 [23] per Justice McHugh.

The critical question in the present matter is whether any extension of time should be granted.  As Justice McHugh remarked in Re Commonwealth: Ex parte Marks (2000) 177 ALR 491 at 495 [15]:

[Constitutional prerogative] writs 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.

His Honour also said in that decision at 496 [16]:

The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court.  In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.

To those observations which are of continuing relevance under the new Rules of Court of the High Court of 2004, I would add that it is appropriate to consider the length of any delay, the reasons given for delay and the grounds for relief sought to be advanced.

Here the delay is a long one.  The plaintiff has already sought review of the Tribunal’s decision by making application to the Federal Magistrates Court.  Further, the grounds for relief advanced on the present application are formulaic and no proper case to justify the grant of an extension of time has been put forward.

In all the circumstances, the proceedings which the plaintiff has instituted are doomed to fail.  That being so, rather than remit the proceedings to another court for hearing and determination, it is preferable that they be brought to an end in this Court now.

Is any application made in respect of costs?

MR KNOWLES:   Your Honour, I am instructed to seek the first defendant’s costs.

HER HONOUR:   I order the proceeding be dismissed with the costs of the first defendant to be paid by the plaintiff.

Madam Interpreter, would you explain the order to the plaintiff and also inform him that a copy of that transcript may be obtained within a few days and that could be done through inquiries of the Registry.

PLAINTIFF M94/2007 (through interpreter):   Thank you.

HER HONOUR:   Thank you.

AT 10.03 AM THE MATTER WAS CONCLUDED