Plaintiff S120/2016 v Minister for Immigration and Border Protection & Anor

[2019] HCATrans 24

[2019] HCATrans 024

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S120 of 2016

B e t w e e n -

PLAINTIFF S120/2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

Administrative Appeals Tribunal

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 FEBRUARY 2019, AT 10.02 AM

Copyright in the High Court of Australia

HIS HONOUR:   In this matter the orders I make are as follows:

1.The application is dismissed under rule 25.09.1 of the High Court Rules 2004 (Cth).

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

I publish my reasons and I direct that those reasons be incorporated into the transcript.

Before me is an application for an order to show cause filed in the High Court on 2 May 2016 by which the plaintiff seeks a writ of certiorari quashing a decision of the Refugee Review Tribunal made on 12 March 2013 and a writ of prohibition directed to the Minister for Immigration and Border Protection restraining the Minister from taking action on the basis of that decision.  The application is supported by an affidavit by the plaintiff which was filed on 2 May 2016.

The Minister on 31 January 2019 filed a response in accordance with a direction given by a Deputy Registrar on 3 January 2019. The plaintiff has not filed a reply in accordance with r 25.08.1 of the High Court Rules 2004 (Cth), as amended from 1 November 2018 by the High Court Amendment (Constitutional Writs and Other Matters) Rules 2018 (Cth), despite being directed by a Deputy Registrar to file any reply by 7 February 2019.

The application is governed by s 486A of the Migration Act 1958 (Cth). Having been filed more than three years outside the 35 day time period for the filing of an application provided by that section, it cannot proceed absent an order under that section extending that period. Such an order can only be made on the basis of the High Court’s satisfaction that it is necessary in the interests of the administration of justice to make the order.

For the reasons I gave in Zhang v Minister for Immigration and Border Protection [2015] HCATrans 244, I do not accept the submission of the Minister that the question raised for the High Court by s 486A of the Migration Act can be avoided by the Court remitting the subject matter of the application to the Federal Circuit Court of Australia under s 44(1) of the Judiciary Act 1903 (Cth).

In my opinion, there is no arguable basis on which the High Court might be satisfied that it is necessary in the interests of the administration of justice to make an order under s 486A of the Migration Act extending the period for the filing of the application.  That is because, even if it were to be accepted that the applicant’s affidavit provides an adequate explanation for the delay, the application does not appear on the material that has been filed to have merit.

The applicant seeks relief on two grounds. The first ground is that the Tribunal’s decision was legally unreasonable because it was irrational, unfair and unjust, and also because it lacks any intelligible justification. The ground is not particularised and appears to have been intended as no more than introductory to the second ground. The second ground is that the Tribunal acted unreasonably in making its factual findings and that it misconstrued the meaning of the words “real risk” in s 36(2)(aa) of the Migration Act.  The ground refers to evidence of the plaintiff having become a disabled person as a result of brutality which he suffered in his country of origin and to which he will be subjected should he be returned to that country.

Having reviewed the Tribunal’s decision, I can see no error in the Tribunal’s construction of s 36(2)(aa) of the Migration Act. Moreover, the plaintiff has not shown that the Tribunal erred in applying the criterion stipulated by that section to the material before it. Relevantly, the Tribunal accepted both that the plaintiff had been beaten and interrogated by military personnel in July 2011 and that, following that incident, the plaintiff had been subjected to a degree of surveillance and monitoring by military authorities over a period of nine or ten months. However, the Tribunal found that this surveillance and monitoring did not amount to “significant harm” within the meaning of s 36(2)(aa) and that there was no reason to believe that any such surveillance and monitoring would intensify or become more oppressive upon the plaintiff’s return to his country of origin.

As for the plaintiff’s reference to evidence of a disability, the material supporting the application does nothing to identify any such evidence beyond generalised references to the plaintiff suffering from physical pain, psychological distress and depression.  The Tribunal did not refer to evidence of the plaintiff having a particular disability, although it did refer to medical evidence showing that the plaintiff suffered bruising and muscle tenderness following the incident in July 2011.

For these reasons, I order that the application be dismissed under r 25.09.1 of the High Court Rules.  The plaintiff must pay the costs of the Minister. 

AT 10.03 AM THE MATTER WAS CONCLUDED