Plaintiff S284/2017 v Minister for Immigration and Border Protection & Ors

[2019] HCATrans 34

[2019] HCATrans 034

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S284 of 2017

B e t w e e n -

PLAINTIFF S284/2017

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

FEDERAL CIRCUIT COURT OF AUSTRALIA

Third Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 1 MARCH 2019, AT 9.32 AM

Copyright in the High Court of Australia

HIS HONOUR:   On 11 December 2017, the plaintiff filed an application for an order to show cause.  For the reasons that I now publish, I would dismiss the application.

The orders are:

1.The application for an order to show cause filed on 11 December 2017 be dismissed.

2.The plaintiff pay the first defendant’s costs.

I publish those orders.  I direct that the reasons as published be incorporated into the transcript.

The plaintiff is a citizen of Sri Lanka.  On 25 March 2013, he applied for a protection visa.  The application was refused by a delegate of the Minister for Immigration and Border Protection (“the Minister”).  The delegate’s decision was affirmed by the Administrative Appeals Tribunal (“the Tribunal”).  An application for judicial review was dismissed by the Federal Circuit Court of Australia on the basis that it did not raise an arguable case for the relief sought, and an application for leave to appeal to the Federal Court of Australia from that decision was dismissed by North J.

No application was brought for special leave to appeal to this Court from the decision of North J. Section 33(4B)(a) of the Federal Court of Australia Act 1976 (Cth), when read with s 25(2)(a), prevents an appeal to this Court from a judgment of the Federal Court determining an application for leave to appeal in the exercise of its appellate jurisdiction. Instead, on 11 December 2017, the plaintiff brought this application for an order to show cause in this Court’s original jurisdiction. Although the application was served on the Minister, there was a delay before the Minister entered an appearance in this Court on 5 September 2018. The Minister was the only defendant who appeared. The parties were subsequently directed to file and serve written submissions. The plaintiff and the Minister filed submissions in accordance with those directions on 31 January 2019 and 6 February 2019 respectively.

Although this application was filed prior to promulgation of the High Court Amendment (Constitutional Writs and Other Matters) Rules 2018 (Cth), it falls to be considered under the new Pt 25 of the High Court Rules 2004 (Cth): see r 61.01(a). For the reasons that follow, this application should be dismissed under r 25.09.1 on the ground that the application does not disclose an arguable basis for the relief sought.

The plaintiff seeks writs of certiorari and mandamus against the Tribunal and a writ of mandamus and an injunction against the Minister in relation to his application for a protection visa.  The plaintiff seeks relief on the grounds that the decisions of the Federal Circuit Court and the Federal Court were unreasonable and were made without according procedural fairness to the plaintiff.  The background to those decisions was the claims by the plaintiff before the delegate of the Minister and before the Tribunal that he had a well‑founded fear of persecution by Sri Lankan authorities as he is a young Tamil male who lived in an area controlled by the Liberation Tigers of Tamil Eelam (“LTTE”) and is closely connected to a senior LTTE commander who remains in prison, and that being returned to Sri Lanka as a failed asylum seeker would increase the likelihood of being harmed by the Sri Lankan authorities and Tamil armed groups.  A delegate of the Minister refused the plaintiff’s application for a protection visa on 20 December 2013, relying upon various inconsistencies and implausible scenarios presented by the plaintiff.  On 17 June 2016, the Tribunal affirmed the delegate’s decision not to grant the plaintiff a protection visa, referring to “significant inconsistencies” in the plaintiff’s evidence and finding that he lacked credibility.

The plaintiff applied to the Federal Circuit Court on 7 July 2016 for review of the Tribunal’s decision.  He relied upon grounds that the Tribunal had erred in law and denied him procedural fairness.  In the application to the Federal Circuit Court, the plaintiff stated that he had made an application for assistance through Victoria Legal Aid and was waiting for a decision on assistance.

On 5 June 2017, the Federal Circuit Court ordered that the plaintiff’s application be dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth)[1] on the basis that the plaintiff had not raised an arguable case that there had been an error of law or a failure to provide procedural fairness[2].

[1]BRQ16 v Minister for Immigration [2017] FCCA 1360.

[2]BRQ16 v Minister for Immigration [2017] FCCA 1360 at [12].

On 20 June 2017, the plaintiff applied to the Federal Court for leave to appeal the decision of the Federal Circuit Court[3].  Although the application was prepared with the assistance of counsel, the plaintiff was unrepresented at the hearing, though he was assisted by an interpreter in the Tamil language[4]. In his draft notice of appeal, the plaintiff contended that the Federal Circuit Court judge had failed to accord him procedural fairness, or, in the alternative, that it was legally unreasonable to dismiss the application under r 44.12(1)(a) of the Federal Circuit Court Rules.  On 17 November 2017, North J refused the application for leave to appeal on the ground that the orders of the Federal Circuit Court were “not attended by doubt”[5].

[3]See Federal Court of Australia Act 1976 (Cth), s 24(1A).

[4]BRQ16 v Minister for Immigration and Border Protection [2017] FCA 1350 at [14].

[5]BRQ16 v Minister for Immigration and Border Protection [2017] FCA 1350 at [20].

In essence, the complaints of unreasonableness and denial of procedural fairness rested upon an allegation in the proposed notice of appeal and an affidavit filed by the plaintiff’s then solicitor that she was instructed that the plaintiff told the Federal Circuit Court judge that he could attend the Court with a lawyer if additional time were allowed [6].  The transcript of the hearing in the Federal Circuit Court was not in evidence before the Federal Court and an affidavit by the plaintiff’s solicitor did not suggest that he had sought any adjournment in the Federal Circuit Court.  Further, at the hearing in the Federal Court the plaintiff did not repeat the complaint about a failure of the Federal Circuit Court to grant him an adjournment[7].  In those circumstances, North J held that there was no evidentiary basis upon which it could be concluded that the hearing before the Federal Circuit Court was unfair[8].  North J also held that even if the procedural fairness arguments were well‑based it would be futile to grant a remedy because there was no basis asserted for any jurisdictional error by the Tribunal[9].

[6]BRQ16 v Minister for Immigration and Border Protection [2017] FCA 1350 at [13], [15].

[7]BRQ16 v Minister for Immigration and Border Protection [2017] FCA 1350 at [17].

[8]BRQ16 v Minister for Immigration and Border Protection [2017] FCA 1350 at [18].

[9]BRQ16 v Minister for Immigration and Border Protection [2017] FCA 1350 at [19].

On 11 December 2017, the plaintiff filed in the original jurisdiction of this Court the present application for an order to show cause but the plaintiff did not file a summons and outline of submissions as required by r 25.03 of the then current version of the High Court Rules.  The Minister did not enter an appearance until 5 September 2018.  On 23 January 2019, the parties were directed to file written submissions.

In this Court, the plaintiff submits that the Federal Circuit Court erred in dismissing the application under r 44.12(1)(a) of the Federal Circuit Court Rules, and that the appeal to the Federal Court should not have been dismissed.  He submits that he should have been given extra time to find a lawyer and that he should have been given extra time to obtain a transcript of the Federal Circuit Court proceedings.

The plaintiff’s application to this Court does not disclose any arguable basis for the relief sought for three independent reasons.

First, although the plaintiff seeks an order quashing the decision of the Tribunal (which was not joined as a party to this proceeding), he makes no submission in this Court, just as he made no submission in the Federal Court, that the Tribunal made any jurisdictional error.

Secondly, even if the plaintiff’s application were amended to include the Tribunal as a defendant, and even if he were to identify grounds upon which he challenged the decision of the Tribunal, then he would require an order extending the time limits imposed by s 486A of the Migration Act 1958 (Cth) and rr 25.02.1 and 25.02.2 of the High Court Rules.  In circumstances in which the plaintiff has already brought an application for judicial review of the Tribunal decision and an appeal from the dismissal of that application was unsuccessful, it is unlikely that any identified ground would justify an extension of time in the interests of justice.

Thirdly, although the plaintiff alleges error on the part of the Federal Circuit Court and the Federal Court, the plaintiff seeks no relief directed against either court.  Putting to one side the absence of relief sought against each court, the grounds of complaint against those courts cannot be sustained.  The grounds are effectively identical to those raised in the application for leave to appeal to the Federal Court.  In refusing the plaintiff leave to appeal, North J correctly identified the relevant test to be applied to the determination of the grant of leave to appeal as whether “in all the circumstances of a case, the decision is attended with sufficient doubt to warrant it being reconsidered on appeal, and substantial injustice would result if leave were refused supposing the decision to be wrong”[10].  There is no reason to doubt North J’s assessment of the merits of the proposed grounds of appeal and there is no basis to conclude that his Honour denied the plaintiff procedural fairness in determining the application for leave to appeal.  As to the failure to obtain a transcript of the Federal Circuit Court proceedings, before the Federal Court the plaintiff’s then solicitor affirmed an affidavit on 19 June 2017 saying that it was hoped that the transcript would be obtained by 23 June 2017.  The hearing before North J took place on 16 November 2017.  It was not explained why the transcript had not been obtained by 16 November 2017, if that was the case.

[10]BRQ16 v Minister for Immigration and Border Protection [2017] FCA 1350 at [16], citing Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

The application must be dismissed with costs.

AT 9.33 AM THE MATTER WAS CONCLUDED