Plaintiff S208/2018 v Minister for Home Affairs & Ors

[2019] HCATrans 3

[2019] HCATrans 003

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S208 of 2018

B e t w e e n -

PLAINTIFF S208/2018

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

Application for order to show cause

BELL ACJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 31 JANUARY 2019, AT 2.30 PM

Copyright in the High Court of Australia

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

BONI AMIN, affirmed as interpreter.

HER HONOUR:   Sir, you have filed an application for an order to show cause claiming relief, including the quashing of the orders made by Justice Farrell in the Federal Court of Australia in July of last year and certain other relief.  Do you understand that?

PLAINTIFF S208/2018 (through interpreter):   Yes.

HER HONOUR:   You have sworn an affidavit to which you have attached copies of the various decisions that you wish to challenge?

PLAINTIFF S208/2018 (through interpreter):   Yes.

HER HONOUR:   That is the evidence that you wish to place before the Court in support of your application, is it?

PLAINTIFF S208/2018 (through interpreter):   Yes.

HER HONOUR:   The Minister has filed written submissions in which he asks the Court to dismiss your application because he submits that in some respects some of the relief that you claim does not – your application does not identify an arguable basis for the relief in relation to those claims and in relation to some claims the Minister submits that the application should be dismissed because it would be an abuse of the process of the Court to allow it to go forward.  Are you aware of that?  Do you understand that those submissions have been filed?

PLAINTIFF S208/2018 (through interpreter):   Yes, a little bit.  I am not very much aware of the content here as I am illiterate.  I am educated plus illiterate.  Somebody actually helped me from behind and I just gave him some information.  He has prepared this for me.

HER HONOUR:   You have received a copy of the Minister’s written submissions, have you, sir?

PLAINTIFF S208/2018 (through interpreter):   I am not clear.  Is it after the submission of this documentation before this Court or before these proceedings?

HER HONOUR:   I am directing your attention to the submissions that the Minister filed after you commenced these proceedings explaining why the Minister is seeking to have these proceedings dismissed.

PLAINTIFF S208/2018 (through interpreter):   Yes, I have received that submission in relation to these proceedings and also some information of this hearing, days and times and….., everything where there – and also I think they sought a further clarification against that submission but I was unable to produce further legal arguments in challenging that submission because I am a very poor person.  I do not have money to hire and to get any legal assistance.  That is why I am sorry I did not respond to that.

HER HONOUR:   Is there anything you wish to say to me today by way of response to the Minister’s submission that your application should be dismissed?

THE INTERPRETER:   Okay.  It is a long statement.  I am sorry I am asking him, tapping his – just give me a pause so I can just pass on exactly what he wants to say, but yes.

HER HONOUR:   By all means.

PLAINTIFF S208/2018 (through interpreter):   He is telling that when I came to this country and I just lodged my application for my protection unfortunately I missed a letter communication from the Department, from the primary decision‑maker.  Following that I appealed against that to the Tribunal and I was interviewed.  The hearing was three and a half hours and I told everything – whatever happened to me in the country of my nationality but unfortunately they did not believe.  They just affirmed the primary decision and following that I actually – I went to different – other venues and in the end I ended up here in this Court. 

HER HONOUR:   Is there anything else you want to put to me?

PLAINTIFF S208/2018 (through interpreter):   What can I say?  That is all.

HER HONOUR:   Yes, thank you, sir.  You may resume your seat.  Mr Markus.

MR MARKUS:   Thank you, your Honour.  As your Honour has already observed this is an application for an order to show cause.

HER HONOUR:   Yes.

MR MARKUS:   The plaintiff seeks a fairly wide range of relief.

HER HONOUR:   Indeed.  Mr Markus, you would appreciate I have had the benefit of the Minister’s written submissions.  In light of the circumstance that the plaintiff is unrepresented I wondered if you might just briefly address those submissions so we can be clear that the plaintiff understands the basis of the Minister’s objection.

MR MARKUS:   Thank you, your Honour.

HER HONOUR:   To be clear, Mr Markus, I am not suggesting canvassing all the technicalities of the very able submissions that have been filed on the Minister’s behalf but I did think it might assist if the plaintiff were to hear the broad bases of objection.

MR MARKUS:   Thank you, your Honour.  I will do that.  I do not, for the purposes of these submissions, intend to canvass the factual background.  The plaintiff is, I think, familiar with that.

HER HONOUR:   Yes.

MR MARKUS:   And your Honour would have noted it is summarised in our response at paragraphs 5 to 15.

HER HONOUR:   Yes, I have noted that.

MR MARKUS:   Your Honour, putting to one side relief claimed in relation to costs, broadly speaking, the prayers for relief are directed at four separate issues. First, your Honour, there are orders seeking relief in the nature of certiorari quashing the orders made by the Federal Court of Australia which dismissed the plaintiff’s application for leave to appeal from a judgment of the Federal Circuit Court. In the alternative to that order the plaintiff seeks a declaration that section 33(4B) of the Federal Court of Australia Act 1976 is invalid to the extent that it prohibits appeals from the Federal Court to this Court in that it is alleged that that provision is inconsistent with Chapter III and in particular section 76 of the Constitution.

HER HONOUR:   Yes, and as I understand it, Mr Markus, the Minister relies on the decision of this Court in Cockle v Isaksen ‑ ‑ ‑

MR MARKUS:   Amongst other authorities, yes.

HER HONOUR: Amongst others, to contend that that constitutional challenge is so lacking in merit that I might deal with it today without the necessity for the plaintiff to issue a notice under section 78B of the Judiciary Act.

MR MARKUS:   That is our client’s position and it is further elaborated on in our written submission – or in our response, your Honour. We say that the issue has been determined and therefore the fact that the plaintiff asserts that a constitutional issue arises does not mean that the provisions of section 78B(1) apply in the present circumstances.

HER HONOUR:   Yes, thank you, Mr Markus.

MR MARKUS:   Your Honour, the third category of relief claimed by the plaintiff is in the form of leave being sought for an application for special leave to appeal to be able to be filed from the judgment of the Federal Court.

HER HONOUR:   That depends upon success on the second alternative ground.

MR MARKUS:   Well, we would say that it does not depend on that at all because if the plaintiff succeeds he does not need leave.

HER HONOUR:   Quite so.

MR MARKUS:   There is an additional order that the plaintiff seeks that special leave be granted.

HER HONOUR:   Yes.

MR MARKUS:   That order presumably, again, is an alternative to prayer 1 of the relief sought.

HER HONOUR:   Yes.

MR MARKUS:   Finally, your Honour, there is an order sought by the plaintiff enabling him to file an application in this Court seeking an order in the nature of certiorari directed to the Tribunal to quash its decision.

HER HONOUR:   Am I right in understanding, Mr Markus, in the written submissions it is contended that the application ought be dismissed because it does not identify any arguable basis for the relief claimed or it is an abuse of process and, as I would understand it, the abuse submission is directed to the endeavour to quash the determination that was the subject of the judicial review proceedings that were commenced in the Federal Circuit Court.

MR MARKUS:   Your Honour, we say that the abuse part of our argument is focused on that part of the application which seeks to challenge the decision of the Tribunal which we say ‑ ‑ ‑

HER HONOUR:   Yes, it is the Tribunal that is – yes.

MR MARKUS:   ‑ ‑ ‑ has already been subject to judicial review.

HER HONOUR:   To review, yes.

MR MARKUS:   By the Federal Circuit Court.

HER HONOUR:   Yes, I understand.  My point is the first ground asserts jurisdictional error on the part of the Federal Court.  Were there a basis for that contention the abuse argument would not run but the abuse argument is the Minister contends, squarely raised in relation to the attempt to start in this Court proceedings mounting the very challenge that was determined by the refusal of leave in the Federal Circuit Court with respect to the Tribunal’s decision.

MR MARKUS:   Yes, I think the Federal Circuit Court decision was a decision that the application to that court would be dismissed pursuant to rule 44.12 of the Federal Circuit Court Rules which basically is a rule that provides – if your Honour looks at paragraph 10 of our written submissions – that at the hearing of an application for an order to show cause the Court may (a) if it is not satisfied that the application has raised an arguable case for the relief claimed dismiss the application.

HER HONOUR:   Indeed, and that is an interlocutory determination which in turn requires leave of the Federal Court in respect of any proposed application to appeal.

MR MARKUS:   Appeal, yes.

HER HONOUR:   Yes.

MR MARKUS:   That is correct, your Honour.

HER HONOUR:   Yes, I understand.

MR MARKUS:   Insofar as we rely on the principle of abuse of process and related concepts we simply assert that the plaintiff has already had an opportunity to seek judicial review and he has failed in that endeavour.

HER HONOUR:   Yes.

MR MARKUS:   And to now seek to challenge the Tribunal’s decision again would amount to an abuse of process in the Walton v Gardiner sense even if the principle of res judicata does not as such apply in the present circumstances.

HER HONOUR:   I understand.

MR MARKUS:   Your Honour, just very briefly, I think I have dealt with that part of our argument that relates to any proposed challenge to a tribunal’s decision and I have also briefly addressed the challenge to the validity of section 33(4B) by reference to the need for a 78B notice.

HER HONOUR:   Yes.

MR MARKUS:   The only aspect of the application that I have not said anything about is the challenge to the judgment of the Federal Court of Australia.  In that context, I would simply wish to make the point that this is an application for a constitutional writ.  The plaintiff is required to demonstrate jurisdictional error on the part of the Federal Court and as his Honour Justice Gageler of this Court has pointed out in AUK15 v Minister for Immigration and Border Protection & Anor [2016] HCA Trans 36 ‑ I am going to read briefly from page 35, line 1550 and following:

The Federal Court is established as a superior court of record.  Whether or not made within jurisdiction, its decisions remain valid and effective unless and until set aside.  Adopting the language of Justice Mason in R v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351 at 374 to 375, it must be taken to be “firmly established” that a writ of prohibition or mandamus will lie from the High Court exercising jurisdiction under section 75(v) of the Constitution to a judge of the Federal Court for jurisdictional error on the part of that judge, but that such a writ will not lie to set aside a judge of that court either for non‑jurisdictional error of law or for an error in finding a fact which it is within the jurisdiction of that court conclusively to determine.

His Honour Justice Gageler at line 1611 then:

There being no suggestion in the present case that Justice Barker misconceived the nature of the function he was performing in deciding whether or not to award an extension of time under section 477A(2) of the Act, I am unable to characterise either of the errors particularised in the amended application as errors of jurisdiction. 

Now, your Honour would have seen that the complaint made by the present plaintiff is that the Federal Court of Australia or the judge of the Federal Court of Australia who dealt with his matter has dealt with that application for leave as if it were final here.  In our response, we say that proposition cannot be made out.

HER HONOUR:   I think, Mr Markus, the Minister’s contention is the ground is misconceived and Justice Farrell applied well‑established principles by reviewing whether any of the proposed grounds of appeal were arguable as part of the consideration of the grant of leave.

MR MARKUS: Indeed, your Honour, and we would also say that at paragraph 6 of her Honour’s judgment there is specific reference to authorities dealing with that very text. In all those circumstances, your Honour, we say that the challenge to the Federal Court’s judgment is misconceived. The challenge to the validity of section 33(4B) is similarly misconceived. The application for leave to be able to file an application for special leave to appeal and seeking an order that special leave be granted are also misconceived as is the challenge for the application for leave to be able to challenge the decision of the Tribunal.

HER HONOUR:   Yes, thank you, Mr Markus.

MR MARKUS:   If your Honour pleases.

HER HONOUR:   Sir, is there anything further you would wish to put to me?

THE INTERPRETER:   No, no, nothing.

HER HONOUR:   Thank you, again, sir, do take a seat.

This is an application for an order to show cause which was filed on 13 August 2018. The plaintiff claims certiorari to quash orders made by Justice Farrell in the Federal Court of Australia on 24 July 2018. In the alternative, the plaintiff seeks a declaration that section 33(4B) of the Federal Court of Australia Act 1976 (“the FCA Act”) is invalid. Allied to the latter claim for relief, the plaintiff seeks leave to file an application for special leave to appeal from Justice Farrell’s orders and that special leave be granted.

The plaintiff also claims certiorari directed to the second defendant, the Administrative Appeals Tribunal (“the Tribunal”) to quash its decision made on 17 January 2017, affirming the decision of the delegate of the Minister for Immigration and Border Protection (“the Minister”), refusing to grant the plaintiff a protection visa.  A dispensation is sought from the requirement of the rules which impose a six‑month limitation on the grant of certiorari.[1]

[1] High Court Rules 2004, rule 2.02 and rule 25.06.1.

Finally, the plaintiff seeks injunctive relief to prevent the Minister, now the Minister for Home Affairs, from giving effect to the Tribunal’s decision.  The Tribunal has filed a submitting appearance.  The plaintiff is unrepresented.  He relies on his affidavit to which are exhibited copies of the decisions.

In submissions filed on 6 December 2018 and served on the plaintiff, the Minister submits that the application should be dismissed in circumstances in which it does not disclose an arguable basis for any of the relief sought and is in respect of the relief claimed in relation to the Tribunal’s decision an abuse of the process of the Court.

The facts may be shortly stated.  The plaintiff is a citizen of Bangladesh who arrived in Australia on 23 November 2014 as the holder of a visitor visa.  Two days before the expiry of that visa, on 22 December 2014, the plaintiff lodged an application for a protection visa.  On 22 June 2015 a delegate of the Minister invited the plaintiff to attend an interview in connection with his claim to engage Australia’s protection obligations.  The plaintiff did not attend the interview.  On 17 July 2015, the delegate refused to grant the plaintiff the visa because the delegate was not satisfied that the plaintiff had established his claims. 

On 12 August 2015, the plaintiff applied to the Tribunal to review the delegate’s decision.  On 17 January 2017, the Tribunal affirmed the delegate’s decision.  The Tribunal found that the plaintiff had fabricated his material claims for the purpose of obtaining a protection visa.

The plaintiff sought judicial review of the Tribunal’s decision before the Federal Circuit Court of Australia. Judge Driver found that the plaintiff had failed to establish an arguable case of jurisdictional error. His Honour dismissed the application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001.  Such a dismissal is an interlocutory decision for which leave to appeal is required. 

The plaintiff applied for leave to appeal to the Federal Court of Australia.  His first proposed ground of appeal contended that Judge Driver erred by holding that the Minister and the Tribunal “did not make jurisdictional error by failing to exercise jurisdiction” and that the Tribunal’s adverse assessment of the plaintiff’s credibility was the product of a misunderstanding of his evidence. 

The plaintiff’s other proposed grounds alleged that the Tribunal failed “to assess the integer of the [plaintiff’s] claim or relevant consideration related to [his] claim for a protection visa” and that the Tribunal failed to comply with section 424AA or 424A of the Migration Act 1958.  None of these proposed grounds of appeal had been raised before Judge Driver.

Justice Farrell dismissed the application for leave having determined that none of the proposed grounds had sufficient merit to warrant leave to raise them on appeal.

The plaintiff’s first ground for the relief claimed in this Court contends that Justice Farrell misapprehended or disregarded the nature or limits of the functions or powers of the Federal Court under section 24 of the FCA Act. He submits that Justice Farrell wrongly treated the determination of leave to appeal as though her Honour was conducting a final hearing on the merits.

The contention proceeds upon a misconception.  Justice Farrell approached the plaintiff’s application for leave to appeal consistently with well‑established principles collected in Decor Corporation Pty Ltd v Dart Industries Inc.[2]  The matters that her Honour took into account were relevant to the determination of whether leave should be granted.  There is no reason to question Justice Farrell’s assessment of the merits of the proposed grounds and, in any event, error in this respect would be within jurisdiction.

[2] (1991) 33 FCR 397 at 398 to 400.

Particulars of the next grounds are in essence those that were raised before Justice Farrell.  Again, there is no reason to doubt the correctness of her Honour’s assessment of the merits of the grounds which assessment was within jurisdiction.

The challenge to the validity of section 33(4B) of the FCA Act is advanced on constitutional grounds. Although notices under section 78B of the Judiciary Act 1903 have not been served on the Attorneys‑General of the Commonwealth and the States, the Minister submits and I accept that the preclusion on proceeding is not here engaged.  The mere fact that a party asserts that a matter arises under the Constitution or involves its interpretation does not make it so and the duty is not engaged where the purported constitutional challenge is unarguable.

Section 33(4B)(a) of the FCA Act relevantly provides that:

An appeal must not be brought to [this Court] from a judgment of the [Federal] Court . . . in the exercise of [that court’s] appellate jurisdiction if the judgment is . . . an application of the kind mentioned in subsection 25(2).

These are applications for leave or special leave to appeal to the Federal Court, extensions of time within which to institute appeals to that court, leave to amend grounds of appeal or to stay an order of the Full Court.

Section 73 of the Constitution provides that this Court:

shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from –

relevantly, “any other federal court”. The challenge to section 33(4B) is that the provision is not expressed to be an exception to the appellate jurisdiction of this Court “but is rather a prohibition on a person from exercising such a right to appeal which is conferred by section 73 of the Constitution”.

The narrow exception created by section 33(4B)(a) cannot be said to destroy this Court’s general jurisdiction to hear appeals from the Federal Court.[3]  Nothing in the material filed in support of the application articulates an arguable basis for the challenge to the validity of the section.  Moreover, the plaintiff has not identified any error in Justice Farrell’s reasons as would justify a grant of special leave to appeal.

[3] Cockle v Isaksen (1957) 99 CLR 155 at 165 per Chief Justice Dixon and Justices McTiernan and Kitto.

The plaintiff states in his application that he was unrepresented in the Federal Circuit Court and the Federal Court and “could not provide or articulate the grounds at the Federal Circuit stage”.  The plaintiff’s lack of legal representation to prosecute judicial review proceedings does not of itself provide support for any of the relief here claimed.

The plaintiff asserts that the Tribunal’s decision is “infected with jurisdictional error” and that he has not had the opportunity to have that issue determined at a trial.  He also makes an unparticularised claim to have been denied procedural fairness before the Tribunal.

To permit the plaintiff following his unsuccessful application for judicial review before the Federal Circuit Court to simply start again in the original jurisdiction of this Court is tantamount to an abuse of process.[4]  For these reasons, there will be the following order:  application dismissed with costs.

[4] Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at 678, paragraphs [13] and [14].

Thank you, Mr Interpreter.

AT 3.20 PM THE MATTER WAS CONCLUDED