Plaintiff S246-2019 v Justices of the Federal Court of Australia & Anor

[2019] HCATrans 220

[2019] HCATrans 220

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S246 of 2019

B e t w e e n -

PLAINTIFF S246/2019

Plaintiff

and

JUSTICES OF THE FEDERAL COURT OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 NOVEMBER 2019, AT 9.37 AM

Copyright in the High Court of Australia

HIS HONOUR:   In this matter, the orders that I make are:

1.The name of the second defendant is amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

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

3.        The plaintiff pay the costs of the second defendant.

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

Before me is an application for a constitutional or other writ filed in this Court’s original jurisdiction on 8 August 2019.  By that application, the plaintiff seeks orders setting aside the decision of Murphy J in the Federal Court of Australia in DMO17 v Minister for Immigration and Border Protection [2019] FCA 906 and requiring the decision to be remade according to law. By that decision, Justice Murphy refused to grant to the plaintiff leave to appeal from an interlocutory decision of the Federal Circuit Court of Australia. That Court had summarily dismissed an application by the plaintiff for judicial review of a decision of the Immigration Assessment Authority.

The plaintiff is a citizen of Sri Lanka who arrived in Australia in October 2012. On 14 July 2017, the Authority affirmed a decision of a delegate of the Minister to refuse to grant to the plaintiff a Safe Haven Enterprise visa. On an application for an order to show cause in the Federal Circuit Court, the plaintiff relied on grounds of review which contended that the Authority had failed to consider some of the plaintiff’s claims or integers of the plaintiff’s claims for protection. Judge Driver found in each case that the claims or integers of claims had been expressly considered and went on to dismiss the application under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) as failing to raise an arguable case for the relief claimed.

Before the Federal Court, the plaintiff sought to rely only on new grounds of appeal not advanced before the Federal Circuit Court. As Judge Driver’s decision had been interlocutory in nature, the plaintiff required leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) as well as leave to advance the fresh grounds on which he sought to rely.

Murphy J found that none of the proposed grounds was reasonably arguable.  At least three proposed grounds related to a complaint that the plaintiff claimed he had made to a fishermen’s association in Sri Lanka.  Murphy J accepted that the Authority had wrongly stated that the plaintiff had said he could not remember whether he made the complaint, when in fact he had said he could not remember when he made the complaint.  The difficulty for the plaintiff, however, was that, while not accepting that a complaint was made, the Authority did accept that the incident said to form the basis of the complaint occurred.  The Authority accepted that the plaintiff had restrictions placed on him by Sri Lankan authorities in his work as a Tamil fishermen during the civil war but did not accept that those restrictions gave rise to a real risk of serious harm were the plaintiff to return to Sri Lanka.

The plaintiff further contended that the Authority failed to appreciate the significance of an incident in which the plaintiff was arrested, detained and assaulted by members of the Sri Lankan Army as a result of the plaintiff’s attempts to protect his village from local “grease men”.  Murphy J found that the Authority had accepted that this incident occurred and that its conclusion that the plaintiff was nevertheless not a person of interest to authorities was based on logical inferences drawn from the short period of his detention and the lack of anti‑government character to his activities.  Leave to advance the proposed new grounds was refused and the application for leave to appeal was dismissed.

The plaintiff contends in the present application that the decision of Murphy J dismissing his application for leave to appeal was beyond the jurisdiction of the Federal Court for the reason that his Honour’s conclusion that none of the plaintiff’s proposed grounds of appeal to the Federal Court was reasonably arguable was itself unreasonable.

The application is an impermissible challenge to the merits of the decision of Murphy J.  His Honour applied established principles to the determination of the plaintiff’s applications both for leave to appeal and for leave to rely on fresh grounds of appeal.  There is no arguable basis for any contention that his Honour exceeded or failed to exercise the jurisdiction of the Federal Court.

The orders I will make are:

1.The name of the second defendant is amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

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

3.        The plaintiff pay the costs of the second defendant.

AT 9.38 AM THE MATTER WAS CONCLUDED