Plaintiff S288/2013 v Minister for Immigration and Border Protection and Anor

[2014] HCATrans 118

[2014] HCATrans 118

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S288 of 2013

B e t w e e n -

PLAINTIFF S288/2013

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 JUNE 2014, AT 10.08 AM

Copyright in the High Court of Australia

PLAINTIFF S288/2013 appeared in person.

MR T. REILLY:   May it please the Court, I appear for the first defendant, your Honour.  (instructed by DLA Piper Australia)

HER HONOUR:   Thank you, Mr Reilly.  I might just make an inquiry, Mr Reilly.  Sir, you had the assistance of an interpreter present today?

PLAINTIFF S288/2013:   Yes, ma’am.

HER HONOUR:   Yes.  I will just have the interpreter sworn. 

INTERPRETER sworn.

HER HONOUR:   Thank you, Mr Interpreter.  Yes, Mr Reilly.

MR REILLY: Thank you, your Honour. Your Honour, the first defendant moves on a summons filed 19 February 2014 seeking that the application brought by the plaintiff to show cause, filed on 5 December 2013, be dismissed pursuant to the High Court Rules on the basis that it does not disclose a cause of action. Has your Honour had an opportunity to look at any of the papers in this matter?

HER HONOUR:   Yes, I have, Mr Reilly.  There were a couple of matters that I just wanted to take up with you.

MR REILLY:   Yes.

HER HONOUR:   As I understand the background to the proceeding, the Administrative Appeals Tribunal affirmed the decision of the Minister’s delegate to refuse a partner visa.

MR REILLY:   Yes.

HER HONOUR:   Am I right in understanding that from that refusal, that is, that determination of the Tribunal, there is a statutory right of appeal on a question of law to the Federal Court?

MR REILLY:   No, your Honour. 

HER HONOUR:   That is excluded, is it?

MR REILLY:   Yes.

HER HONOUR:   That is, the section 44.

MR REILLY:   That is gone, your Honour.

HER HONOUR:   Yes.  So what is open in the circumstance is an application for judicial review?

MR REILLY: Yes, your Honour, an application to the Federal Court under section 476A(1)(b) of the Migration Act if your Honour ‑ ‑ ‑

HER HONOUR: Section 476A(1)(b).

MR REILLY:   Yes.

HER HONOUR:   So, the section 44 form of statutory appeal is not available in relation to this form of migration decision?

MR REILLY:   That is so.

HER HONOUR:   Yes, yes, I understand.  Now, I appreciate that your contention is that the failure to avail himself of the mechanism under 476A(1)(b) and proceed by way of judicial review in the Federal Court is a matter to be taken into account in considering the prospects of the grant of relief in this Court, that relief being discretionary.

MR REILLY:   Well, in the sense that the time limit would be the same in the Federal Court ‑ ‑ ‑

HER HONOUR:   Yes.

MR REILLY: ‑ ‑ ‑ but since the applicant has filed in the time limit, the time limit in section 486A applies and the applicant is about a year and a half out of time. But our principal argument is – even leaving that considerable hurdle for the applicant to overcome – simply on the face of the grounds that are proposed and a reading of the Tribunal’s decision it is apparent that neither of the grounds can possibly succeed because they simply assert things which are contrary to what the Tribunal said.

HER HONOUR:   Mr Reilly, I understand the force of that submission but that seems to me to be more a matter that goes to the claimed inutility of the grant of the order enlarging time in circumstances in which the Minister contends that there is no arguable prospect of success.

MR REILLY:   Your Honour, that may well be the case.  The reason we brought the summons is simply a practical one.  The applicant has been in immigration detention for over a year.  He has had a protection visa application refused.  He has had a judicial review proceeding in relation to that dismissed.  It is desirable to clear any impediments to his removal.

HER HONOUR:   Mr Reilly, I understand those matters.  It was really a question of whether one characterises the application as one that does not disclose a cause of action.  That seemed to me, perhaps ‑ ‑ ‑

MR REILLY:   Your Honour, I understand that ‑ ‑ ‑

HER HONOUR:   …..some difficulties.

MR REILLY:   If there is any argument about what a cause of action would be in these administrative law proceedings it would, nevertheless, be futile or vexatious if it is bound to fail.  So I would ask that your Honour consider that basis as well of dismissal. 

HER HONOUR:   Yes.

MR REILLY:   Could I just very briefly outline the arguments, your Honour, because they are very straightforward and I do not think I need to take up much of your Honour’s time.

HER HONOUR:   Yes.  Well, Mr Reilly, perhaps it might be – I have had the benefit of your submissions and I think I understand the matters that the Minister relies on.  It may be more useful if I take some matters up with the plaintiff.

MR REILLY:   Certainly, your Honour.

HER HONOUR:   But perhaps before that we need to attend to matters of evidence.

MR REILLY:   Yes, yes.  Your Honour, there is an affidavit of my instructor, Katherine Nicole Hooper filed 19 February 2014 which I seek to read, though I will not, I think, have to take your Honour to anything except the reasons of the Tribunal itself ‑ ‑ ‑

HER HONOUR:   Yes.

MR REILLY:   ‑ ‑ ‑ which are exhibit E.

HER HONOUR:   Yes.  I will just inquire of the plaintiff.  Sir, the Minister relies on the affidavit of his solicitor, Katherine Hooper.  Attached to that affidavit, sir, you would have seen various documents including the decision of the Administrative Appeals Tribunal.  Do you have a copy of the affidavit?

PLAINTIFF S288/2013 (through interpreter):   Yes, is it this one, first defendant’s outline of submissions from the Administrative Appeals Tribunal?

HER HONOUR:   No.  There is an affidavit.  It is a reasonably thick document and it is titled “Affidavit of Katherine Nicole Hooper”.

PLAINTIFF S288/2013 (through interpreter):   Yes.  Yes, I will ‑ ‑ ‑

HER HONOUR:   Well, now, Mr Reilly, who appears on the Minister’s behalf, wishes to place that affidavit before the Court as evidence in his client’s case.  Do you have any objection to any part of that affidavit?

PLAINTIFF S288/2013 (through interpreter):   No, I do not.

HER HONOUR:   Yes, very well.  You may take that affidavit as read.  Now, I will just inquire of the plaintiff.  Sir, you have filed an affidavit that you swore on 5 November last year.  Do I understand that you wish to rely on your affidavit?

PLAINTIFF S288/2013 (through interpreter):   Yes, your Honour.

HER HONOUR:   Yes, and do you have any objection to any part of that affidavit, Mr ‑ ‑ ‑

MR REILLY:   No, your Honour.

HER HONOUR:   Yes, very well.  You may take it that the affidavit of the plaintiff is read.  Now, I also understand from an exchange a few moments ago that you have received a copy of the defendant’s, that is, the Minister’s written submissions.

PLAINTIFF S288/2013 (through interpreter):   Is it this one?

HER HONOUR:   That is so?

PLAINTIFF S288/2013 (through interpreter):   Yes, Ma’am.

HER HONOUR:   Yes.  I take it, Mr Reilly, you have seen the plaintiff has filed some submissions dated 21 May 2014.

MR REILLY:   I have seen those, your Honour.

HER HONOUR:   Yes.  Sir, I take it that you wish me to take into account in dealing with the Minister’s application some submissions that you filed on 21 May of this year.

PLAINTIFF S288/2013 (through interpreter):   Yes.

HER HONOUR:   Mr Reilly, on reflection I think it might be helpful if you were to just briefly outline your submissions.  It may assist the plaintiff.

MR REILLY:   Certainly, your Honour.  The order to show cause that the plaintiff filed on 5 December 2013 contains two grounds.  The first ground says that theTribunal in coming to its decision to affirm the delegate’s decision, denied him procedural fairness.  It goes on to say:

Given the fact that the [T]ribunal only dealt with the best interests of my child only on hypothesis basis and never considered the [best] interests of my daughter as a primary consideration in accordance and pursuant to the United Nations Convention on the Rights of the Child in breach of Australia’s [i]nternational obligation.

If one reads the Tribunal’s decision, at paragraph 60 the Tribunal says that:

the Minister concedes, and we agree, it would be in his daughter’s best interests for [the plaintiff] to remain in Australia so that his daughter can have a relationship with him in person and not just by telephone.

So it is simply not the case and cannot be argued that the Tribunal did not treat the best interests of the daughter as a primary consideration and, indeed, in favour of the plaintiff remaining in Australia.  The difficulty is that at paragraph 73 of the Tribunal’s decision the Tribunal thought that that matter in the plaintiff’s favour was outweighed by the other considerations, in particular, the seriousness of the offence and the short period between the plaintiff’s arrival in Australia and his committing the offence.  So we say that ground does not raise a cause of action or, alternatively, is doomed to fail and so is frivolous and vexatious.  The other ground says:

The Administrative Appeals Tribunal constructively failed to exercise jurisdiction giving the fact that the [T]ribunal had accepted that the best interests of my daughter would be for my visa not to be refused –

That is true –

and giving the fact of Australia’s non‑refoulement obligations under the Refugees Convention are invoked and present in my case. 

However, the Tribunal, at paragraph 66, after noting evidence from the plaintiff’s sister that they had a good life and a comfortable life in Lebanon, said that:

There is no reason to think that [the plaintiff] faces persecution within the meaning of the Refugees Convention . . . we are satisfied that none of Australia’s international obligations would be breached by his removal. 

So, again, that ground is simply contrary to what the Tribunal actually says and we would say does not raise a cause of action or, alternatively, is so obviously doomed to fail that it is frivolous and vexatious.  For those reasons we say the application for an order to show cause should be dismissed.  If your Honour pleases.

HER HONOUR:   Thank you, Mr Reilly.  Now, sir, you understand that the Minister invites the Court to dismiss your application.  The Minister relies on the contention that to allow the application to proceed would be futile because there are no prospects of you obtaining the relief that you claim, for the reasons that Mr Reilly has just outlined.  In addition, in his written submissions, the Minister points out that there are time limits including a time limit under the Migration Act for bringing proceedings of this kind and that, while the Court has the power to extend the time, you have not satisfactorily explained why it should do so.  Mr Interpreter, have I gone too quickly?  Is there anything you wish to put to me about those matters?

PLAINTIFF S288/2013:   My English is not too good but I try to explain.  This time I was in gaol, you know, and - and, like, specially last year in my sentence and when I did all the stuff I did ask Legal Aid to help and I tried to find another way to anyone help me.  I could not – I could not find anyone and like I do not have anyone like he can support like exactly about law stuff in Australia.  Even my English it was not too good.  I try all my best to try to find a way and I did ask Legal Aid not just once, twice, and third time, you know, till – till the welfare lady in gaol, she told me just wait to go to the detention centre.  You should find someone to deal with your matter there and this all – this all - and happen to me, you know.  I respect the Minister decision and I respect the law as well, but I have no idea about all that stuff.  That is why I am trying to do all I can do.  I am sorry, thank you.

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

PLAINTIFF S288/2013:   I want to say something.  I do not know exactly what is law or what is my matter, but all I do, I am not here to prove I am perfect or I am just…..I tried all the thing to – to ask for second chance.  If – if they say I not deserve second chance I respect that, but I do believe my little daughter, my little baby, she deserves second chance to stay with her dad, have – have more family, have more kids, brother and sister, find her dad care about her, work for her, find him in his – in his way, in her birthday.  This all – this all I need.  I – I am – I am not perfect guy.  I done something, I have done mistake, and I am ashamed for what I did, and - and I learn from my mistake and I am really a changed guy.  I am not bad guy.  Thank you, ma’am.

HER HONOUR:  Thank you.

This proceeding was commenced by an application for an order to show cause filed on 5 December 2013.  The plaintiff applies for certiorari to quash the decision of the Administrative Appeals Tribunal delivered on 18 June 2012 affirming the determination of the delegate of the Minister for Immigration and Border Protection to refuse to grant the plaintiff a Partner (Temporary) and Partner (Residence) visa.  Mandamus directed to the Tribunal and an injunction restraining the Minister from removing the plaintiff from Australia are other substantive claims for relief. 

Under the High Court Rules 2004 (Cth) (“the Rules”), an application for an order to show cause why a writ of certiorari should not issue is to be made within six months[1].  In the case of mandamus the time limit is two months[2].  The Tribunal’s decision affirming the refusal of the grant of a visa is a migration decision under the Migration Act 1958 (Cth) and subject to the requirement that an application to this Court for a remedy in the exercise of original jurisdiction is to be made within 35 days[3].  The plaintiff claims an order enlarging the time in which to bring the proceeding.  The Minister opposes the making of the order sought.  The Tribunal has filed a submitting appearance.

[1] High Court Rules 2004 (Cth), r 25.6.1.

[2] High Court Rules 2004 (Cth), r 25.7.2.

[3] Migration Act 1958 (Cth), s 486A.

The Minister by summons applies for orders dismissing the applications pursuant to rule 27.9.4 of the Rules and an order that the plaintiff be identified by a pseudonym. The plaintiff appears in person. He relies on his affidavit sworn on 5 November 2013 and on written submissions which were filed on 21 May 2014. The Minister relies on the affidavit of his instructing solicitor, Katherine Hooper, which sets out relevant matters of background. These include that on 15 May 2012 the plaintiff lodged an application for a protection visa. Section 91X of the Migration Act applies to a proceeding before the Court if the proceeding relates to a person in the person’s capacity as a person who has applied for a protection visa.  In such a case, the Court must not publish the person’s name in relation to the proceedings.  In the circumstances, I consider it appropriate to make the pseudonym order that is sought.

The plaintiff was born in 1973.  He is a citizen of Lebanon.  In August 2007, the plaintiff arrived in Australia as the holder of a prospective marriage visa.  He has been in Australia since that time.  In September 2007, the plaintiff married an Australian citizen.  They have a daughter who is now aged six or seven years.  The marriage was dissolved in 2010. 

In November 2007, the plaintiff was arrested on charges relating to the sexual assault of a 13‑year‑old girl.  The plaintiff has been continuously in some form of custody since the date of his arrest.  In August 2009, he appeared before the District Court of New South Wales and was convicted and sentenced to a term of seven years and six months imprisonment for these offences.  A non‑parole period of five years was specified.  The plaintiff was released from that custody in April 2013 and taken into immigration detention. 

In April 2008 the plaintiff applied for the partner visa. On 30 March 2012, a delegate of the Minister determined to refuse the plaintiff’s application on the ground that the plaintiff did not pass the character test in section 501(6) of the Migration Act.  On 10 April 2012, the plaintiff sought a review of the delegate’s decision before the Tribunal.  On 18 June 2012, the Tribunal affirmed the delegate’s decision. 

The plaintiff’s application for a protection visa, as noted, was lodged in May 2012.  The application was refused by the Minister’s delegate.  On 29 May 2013 the Refugee Review Tribunal affirmed the delegate’s decision.  On 7 August 2013, the plaintiff applied to the Federal Circuit Court for an extension of time in which to seek judicial review of the RRT’s decision.  On 8 November 2013, the application was refused. 

The grounds on which the plaintiff claims relief are: 

[1]      The Administrative Appeals Tribunal in coming to a decision to affirm the delegate’s decision denied me procedural fairness.  Given the fact that the [T]ribunal only dealt with the best interests of my child only on hypothesis basis and never considered the [best] interests of my daughter as a primary consideration in accordance and pursuant to the United Nations Convention on the Rights of the Child in breach of Australia’s [i]nternational obligation.

[2]      The Administrative Appeals Tribunal constructively failed to exercise jurisdiction giving the fact that the [T]ribunal had accepted that the best interests of my daughter would be for my visa not to be refused and giving the fact that Australia’s non‑refoulement obligations under the Refugee’s Convention are invoked and present in my case.

The Minister contends that no sufficient explanation for the delay in making the application has been given and that the interests of the administration of justice are against the grant of the extension of time sought.  The Minister submits that the plaintiff has not demonstrated an arguable basis for the relief claimed. 

The principles governing the grant of an extension, including in the case of an application for the issue of the constitutional or prerogative writs, were collected by Justice McHugh in Re Commonwealth of Australia; Ex parte Marks[4]. It is unnecessary to repeat them. The touchstone is the interests of justice. As his Honour observed, the Rules give a person affected by an adverse decision or judgment ample time in which to commence proceedings for the issue of certiorari or mandamus and, save in exceptional cases, those limits are to be applied.

[4] (2000) 177 ALR 491 at 495 [15]; [2000] HCA 67.

Before turning to whether the interests of the administration of justice favour the grant of the extension sought, it is convenient to address the Minister’s submission that such is the futility of the proceedings that they amount to frivolous or vexatious proceedings under the Rules[5].  The plaintiff’s first ground contending the denial of procedural fairness is based on the Tribunal’s asserted failure to consider the best interests of his daughter as a primary consideration.  At the commencement of its reasons the Tribunal recorded that the discretion under section 501(1) is to be exercised in accordance with the Minister’s Direction 41.  The Tribunal noted this required the decision‑maker to take into account four primary considerations and that the fourth primary consideration is “relevant international law obligations, including but not limited to:  the best interests of the child, as described in the Convention on the Rights of the Child; and non‑refoulement obligations under the Convention and Protocol Relating to the Status of Refugees”.

[5] High Court Rules 2004 (Cth), r 27.09.4.

The Tribunal found that it would be in the best interests of the plaintiff’s daughter for the plaintiff to remain in Australia.  Of the four primary considerations that the Tribunal was bound to take into account it found that the first and third “weighed heavily against exercising the discretion in [the plaintiff’s] favour”.  The Tribunal said that the cumulative effect of the other primary considerations outweighed the plaintiff’s daughter’s best interests, given the nature of their relationship and her very young age.  None of the other non‑primary considerations altered that assessment.

The plaintiff’s second ground contends a constructive failure to exercise jurisdiction and is best understood as a complaint that the Tribunal failed to take into account Australia’s non‑refoulement obligations under the Refugees Convention.  The Tribunal recorded that the plaintiff had said that it would be very difficult for him to return to Lebanon.  He had stated that conditions in Lebanon and in Tripoli, in particular, are uncertain and dangerous and that he feared returning there.  He had not elaborated on these fears.  The Tribunal had regard to information prepared by the Department of Foreign Affairs and Trade which was generally supportive of the plaintiff’s account in these respects. 

The Tribunal found that conditions in Lebanon are extremely difficult for many people.  However, the Tribunal accepted the evidence of the plaintiff’s sister.  This included that none of the plaintiff’s family, who are living in Lebanon, have experienced any trouble and that all of them are “comfortable” and have “a very good life”.  In the sister’s estimate, the plaintiff would not have any trouble if he returned to Lebanon.  Based on the evidence before it, the Tribunal was satisfied that none of Australia’s international obligations would be breached by the plaintiff’s removal. 

I now return to the plaintiff’s reasons for submitting that in the interests of justice an order should be made enlarging the time in which to bring the proceedings.  The plaintiff does not in terms address the delay in bringing the present application in his affidavit.  He offers an explanation for his failure to bring proceedings before the Federal Court of Australia following the decision of the Tribunal.  He states that he did not appeal from the decision because he was in prison and did not have legal or other assistance.  He says he cannot speak English and he had no knowledge of the complexities of migration law.

The Minister submits that the explanation is inadequate, given that despite these difficulties the plaintiff was able to commence judicial review proceedings respecting the refusal of his protection visa application and apply for an extension of time in those proceedings.  The Minister notes that the plaintiff was self‑represented on that occasion and that the proceedings were conducted while he was in immigration detention. 

The plaintiff on the hearing today notes that a welfare officer advised him, following the refusal of his application for legal aid, that he should wait until he was released from custody and removed to immigration detention where there may be people who could assist him with his immigration matters. 

The relief that the plaintiff claims is discretionary.  His gross delay in bringing the present proceeding has not been satisfactorily explained.  However, more prominent in my consideration is the circumstance that the plaintiff has not established an arguable case for the relief that he claims. 

Nothing in the material filed on the plaintiff’s behalf discloses exceptional circumstances such as would justify an enlargement of time and for these reasons there will be the following orders:

1.The application for an order to show cause filed by the plaintiff on 5 December 2013 is dismissed.

2.The plaintiff be hereafter identified by the pseudonym “SZTEH”.

3.The plaintiff is to pay the first defendant’s costs.

Adjourn the Court.

AT 10.45 AM THE MATTER WAS CONCLUDED