Plaintiff S106/2016 v Minister for Immigration and Border Protection & Anor

[2016] HCATrans 316

[2016] HCATrans 316

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S106 of 2016

B e t w e e n -

PLAINTIFF S106/2016

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

Application for order to show cause

BELL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 21 DECEMBER 2016, AT 9.53 AM

Copyright in the High Court of Australia

PLAINTIFF S106/2016 appeared in person.

MR A. MARKUS:   May it please the Court, I appear for the first defendant.  (instructed by Australian Government Solicitor)

ONORINA FUGGWAI, sworn as interpreter.

HER HONOUR:   Thank you, Madam Interpreter.  Madam, you may sit for the moment.  You may resume your seat, madam, for the moment.  I will hear from Mr Markus.  It is his application.

MR MARKUS:   Thank you, your Honour.  Your Honour, the matter is listed today for the hearing of a summons filed by my client on 10 November this year.

HER HONOUR:   Yes.

MR MARKUS:   The summons seeks orders that the application for an order to show cause filed by the plaintiff on 12 April this year be dismissed by reason of the plaintiff’s failure to prosecute the proceeding and that the plaintiff pay the first defendant’s costs in the proceeding.

HER HONOUR:   Yes.

MR MARKUS:   I move on that summons, your Honour, and I seek to read the affidavit affirmed by Hervee Dejean on 10 November 2016.

HER HONOUR:   Yes, Mr Markus, and you rely, I take it, on the written submissions filed on 16 December 2016?

MR MARKUS:   Indeed.

HER HONOUR:   Yes, thank you.  I will take some matters up now with the plaintiff.

MR MARKUS:   Thank you, your Honour.

HER HONOUR:   Madam, you understand that the defendant - the Minister for Immigration and Border Protection - is asking me today to dismiss your application because you have failed to take any steps in the matter.  Do you understand that?

THE INTERPRETER:   Your Honour, she needs to understand exactly what the steps were that she was asked to take.

HER HONOUR:   Under the Rules, it is necessary for a person who brings an application such as the application that you have filed, to also file a summons seeking directions from the Court relating to the progress of the matter.  That summons was not filed in your case.  You have taken no step in the proceedings since filing the application on 12 April this year.

THE INTERPRETER:   She appears not to have understood the fact that she was supposed to have submitted a summons after submitting that application, your Honour.

HER HONOUR:   The Minister relies on the affidavit of Mr Dejean.  Have you seen a copy of that affidavit?

THE INTERPRETER:   Your Honour, her appearance today was basically based on a letter that she had signed to appear today.  She is now asking that this case just be dismissed.

HER HONOUR:   The plaintiff is asking for the matter to be dismissed, is that so?

THE INTERPRETER:   Your Honour, she is asking for the case to be dismissed because she does not seem to understand what else was required of her.

HER HONOUR:   Yes.

THE INTERPRETER:   She believes ‑ ‑ ‑

HER HONOUR:   Is there anything else she wants to put to me?

THE INTERPRETER:   Your Honour, she believes that whatever she has submitted in her application is what she believes needs to be taken into account because she does not see that by going back to Fiji that there will be any value.  There is nothing back in Fiji that is there for her, and whatever she has stated in her application is what she believes needs to be taken into account, and that is all that she can do.

HER HONOUR:   Yes, I understand, thank you.  Yes, madam, you may resume your seat.

MR MARKUS:   Your Honour, could I just raise one issue?

HER HONOUR:   Yes.

MR MARKUS:   It was not entirely clear to me from what the plaintiff and the interpreter have said whether the plaintiff was asking for her application to be dismissed, or whether she was asking for the first defendant’s summons to be dismissed.  I thought that she may have meant the second.  I am just raising that, your Honour, because it was not clear and I am just concerned that there be no misunderstanding about that.

HER HONOUR:   Thank you for that, Mr Markus.  I must say, I had understood – and it may be quite wrongly – that at first the plaintiff had indicated that she wished the proceeding to be dismissed, as distinct from your summons.  But thereafter I understood her to be inviting the Court to have regard to the matters in her application, that that was a submission inconsistent with any proposal to dismiss the proceedings.  So, I certainly do not consider it appropriate to deal with the matter on the basis of a consent to an order dismissing the proceedings.  I had not intended to do that.

MR MARKUS:   Yes, thank you, your Honour.

HER HONOUR:   Yes.

MR MARKUS:   Your Honour, can I just raise one matter?

HER HONOUR:   Yes.

MR MARKUS:   It is not a significant one, but I do note, your Honour, that there is a letter which should be on the Court file which the Registry sends out as a matter of course in applications of this kind.  The letter in the present case is dated 13 April 2016, which went to the plaintiff which sets out the various requirements under the Rules.

HER HONOUR:   Yes.

MR MARKUS:   So, in addition to the letter that was sent to the plaintiff by our office, the Court itself has informed the plaintiff of the various steps that she was required to comply with.

HER HONOUR:   Thank you, Mr Markus, yes.

MR MARKUS:   Thank you.

HER HONOUR:   On 12 April 2016, the plaintiff commenced proceedings by way of an application for an order to show cause seeking to challenge the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal, being a decision made on 7 November 2014.

The plaintiff is a citizen of Fiji. On 20 August 2013, the plaintiff applied to the Department of Immigration and Border Protection for a protection visa. She claimed to fear that she would suffer significant harm of a kind that engages Australia’s protection obligations under the complementary protection criterion stated in s 36(2)(aa) of the Migration Act 1958 (Cth).

A delegate of the first defendant, the Minister for Immigration and Border Protection, whom I will refer to as the Minister, refused the application.  The plaintiff applied to the Refugee Review Tribunal to review the delegate’s decision.

On 7 November 2014, the Tribunal affirmed the delegate’s decision.  It concluded that, having considered the plaintiff’s claims individually and cumulatively, there were not substantial grounds for believing that, as a necessary and foreseeable consequence of her removal from Australia to Fiji, there is a real risk that the plaintiff will suffer significant harm, and for that reason the Tribunal concluded that the plaintiff did not meet the complementary protection criterion under the Act.  I note the Tribunal had, earlier in its reasons, correctly referred to that criterion in the terms of the Act.

The present application was commenced more than 17 months after the Tribunal’s decision.  That decision is a migration decision and is accordingly subject to the provisions of s 486A of the Act:

(1)An application to [this Court] for a remedy to be granted in [the] exercise of the court’s original jurisdiction in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)The High Court may, by order, extend that . . . period as [it] considers appropriate if:

(a)an application for that order has been made in writing . . . specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)the High Court is satisfied that it is [so] necessary –

In an affidavit filed in support of the relief claimed in the application on 12 April 2016, the plaintiff stated that she did not commence the proceedings within the required time because she had been advised to seek the Minister’s intervention under s 417 of the Act.  She also states that she had no idea or knowledge that she could have commenced judicial review proceedings until she was placed into immigration detention.

On 10 November 2016, the Minister filed a summons claiming orders dismissing the proceedings for want of prosecution and that the plaintiff pay the Minister’s costs.  The Administrative Appeals Tribunal, the second defendant, has filed a submitting appearance.

The plaintiff has failed to take any steps to prosecute the proceedings since filing the application.  The Minister opposes the grant of an extension of time under s 486A(2), submitting correctly that the circumstance that the plaintiff chose to apply for ministerial intervention does not provide a sufficient explanation for the delay.

I should note that the Minister accepts the plaintiff was not in fact notified of the Tribunal’s decision until 27 April 2015.  Nonetheless, the Minister submits that the explanation offered by the plaintiff for the delay between that date and 12 April 2016 when the present proceedings were commenced is not adequately explained.

The Minister does not submit that he suffers any specific prejudice by reason of the delay but contends that it remains appropriate for the Court to take that delay into account in considering whether it is necessary in the interests of the administration of justice to extend time.  The Minister submits that the substantive issues raised by the plaintiff in her application do not warrant the Court exercising its discretion to extend time.

The plaintiff identifies three grounds of review.  In summary, the first ground contends that the Tribunal misconstrued the complementary protection criterion.

The second ground is an unparticularised assertion that the Tribunal’s decision is vitiated by jurisdictional error because it is legally unreasonable.

The third ground contends that the Tribunal denied the plaintiff procedural fairness by failing to comply with ss 424 and 424A of the Act by failing to inform her of material and inviting her to make submissions on that material.  The reference in this ground is to information relied on by the Tribunal from the Department of Foreign Affairs and Trade relating to the situation in Fiji.

As I have noted, the Tribunal correctly referred to the definition of significant harm contained in s 36(2A) of the Act and I accept the Minister’s submission that the Tribunal’s findings do not demonstrate any arguable basis for a conclusion that it misconceived the complementary protection criterion.

I also accept the Minister’s submission that the unparticularised assertion in ground 2 that the decision is legally unreasonable does not enjoy an arguable prospect of success.

The Tribunal identified the evidence upon which it based its findings and nothing in the material filed in support of the application would support a conclusion that those findings were not open on the material before the Tribunal.

As to ground 3, I accept the Minister’s submission that the information identified in the ground is exempt from the operation of ss 424A and 424AA of the Act pursuant to s 424A(3)(a).

In circumstances in which I am satisfied that the grounds for the relief claimed do not identify an arguable basis for success and in which the very lengthy delay of a little over 12 months from the date that the plaintiff became aware of the Tribunal’s decision is not adequately explained, I am not satisfied that it is necessary in the interests of the administration of justice to make an order extending the 35‑day time limit in which to apply for the remedies sought in the application.

For these reasons, there will be the following orders:

1.The application is dismissed.

2.The plaintiff is to pay the first defendant’s costs of the proceeding.

MR MARKUS:   If the Court pleases.

HER HONOUR:   Yes, thank you.

AT 10.20 AM THE MATTER WAS CONCLUDED