Plaintiff S311/2012 v Minister for Immigration and Citizenship & Anor

[2012] HCATrans 341

[2012] HCATrans 341

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S311 of 2012

B e t w e e n -

PLAINTIFF S311/2012

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 10 DECEMBER 2012, AT 11.10 AM

Copyright in the High Court of Australia

PLAINTIFF S311/2012 appeared in person.

MR P.M. KNOWLES:  May it please the Court, I appear for the first respondent.  (instructed by DLA Piper Australia)

HER HONOUR:   Sir, you have an interpreter present with you.  Is that so?

JAMES ADDO, interpreter:   Yes, I am the interpreter.

HER HONOUR:   Yes, thank you, Mr Interpreter.  The proceedings before me today are a summons brought by the Minister for Immigration and Citizenship, who is the first defendant, asking me to dismiss the claim brought by the plaintiff summarily.  Mr Interpreter, can you explain that to the plaintiff?

THE INTERPRETER:  Yes, I surely can, your Honour.

PLAINTIFF S311/2012 (through interpreter):   Your Honour, I understand what you are telling me but I have some issues to let you know.  I need to tell you some things.  Are you ready to hear me, please?

HER HONOUR:   What I propose, sir, is to hear from Mr Knowles who appears on behalf of the Minister.  I will hear what Mr Knowles has to say in support of the application.  I will then come back to you, sir, and hear anything that you wish to put to me, along with any evidence that you care to place before the Court.  Do I understand that you oppose the relief that is claimed in the Minister’s summons?

PLAINTIFF S311/2012 (through interpreter):   Your Honour, I understand what you are saying, so I will wait to have the opportunity to let you know what I intend to say.

HER HONOUR:   Very well.  If you would like to take a seat and I will now hear from Mr Knowles.   Yes, thank you, Mr Knowles.

MR KNOWLES:   May it please, I move on the summons filed 1 November 2012.  Your Honour, there is some issue in this matter that there are two summons in fact before the Court today.

HER HONOUR:   Yes.  There is a summons that was filed on 22 November 2012 but that would appear to be a summons, I think, filed by the plaintiff.  Is that right?

MR KNOWLES:   Yes, your Honour.

HER HONOUR:   I see.  Just bear with me, I will turn up your summons.  Yes, I have that.  This is a summons filed on 1 November 2012.  Now, do I also have before me today the summons filed on the plaintiff’s behalf on 22 November 2012?

MR KNOWLES:   I am not sure, your Honour, whether that has been specifically listed for today but, in my submission, the Court could deal with it at the same time given that it claims the substantive relief set out in the application to show cause.

HER HONOUR:   Yes, very well, thank you for that Mr Knowles. 

MR KNOWLES:   Your Honour, I read the affidavit of Michelle Elizabeth Stone, affirmed on 31 October 2012 and filed on 1 November 2012.

HER HONOUR:   Yes, has this been served on the plaintiff?

MR KNOWLES:   It has, your Honour.  I have an affidavit of service as well.  That is the affidavit of Samantha Brown which was affirmed 16 November 2012 and filed 19 November 2012.

HER HONOUR:   Yes, I have that.  I will just ask the plaintiff a matter concerning the affidavit, Mr Knowles.  Sir, the defendant relies on the affidavit of Michelle Stone.  That is the document to which there are a number of attachments setting out, among other things, the history of the matter.  Can you just explain what I have said, Mr Interpreter?

THE INTERPRETER:   Thank you.

PLAINTIFF S311/2012 (through interpreter):   Yes, I know the immigration lawyer, Michelle Stone - and he gives me copies of everything.

HER HONOUR:   Very well.  So you understand, sir, the Minister is relying on this affidavit by Michelle Stone to place evidence before me in support of the application that the Minister makes.  Do you understand that?

PLAINTIFF S311/2012 (through interpreter):   Your Honour, I understand that Michelle Stone is working for the Minister of Immigration, I understand that.

HER HONOUR:   Well, now, the evidence before me is that you were served with – that is you received a copy of Ms Stone’s affidavit.  Is that right? 

PLAINTIFF S311/2012 (through interpreter):   Yes, your Honour, I received a copy.

HER HONOUR:   Do you have any objection to any part of the affidavit?

PLAINTIFF S311/2012 (through interpreter):   Your Honour, I received the paperwork from Michelle Stone but as to whether I fully understand them, I would say no because there are so many legal issues in it.  I should actually, if I can, get a lawyer to help me but I do not have any lawyer.  Legal Aid is not helping and I do not have money to engage a lawyer, as you will know.  So I only need to let you know the problems I have regards the affidavit that has come to me.  There are many things in it that I really do not understand.  I just read it and not even with an interpreter.  So I try to understand things but I do not think I fully understand and I do not have the capacity to challenge anything in it because I do not fully understand it. 

HER HONOUR:   You tell me that you have tried to obtain assistance from Legal Aid and that Legal Aid has not agreed to assist you and that you do not have the funds to privately retain a lawyer.  Are you making any application, sir, concerning the circumstance that you find yourself without a lawyer here in Court today?

PLAINTIFF S311/2012 (through interpreter):   Your Honour, I would like to put a special appeal in front of you - you seem to be listening to the matter very, very well - that if you could arrange to get a lawyer for me in a move that this case is probably pushed a bit forward.  I have been accused of playing the system up, but it is not that at all.  It is just that I need a lawyer to help me.  So if you can arrange for somebody to help me, I would appreciate it.

HER HONOUR:   I am not able to give you any assistance in terms of retaining a lawyer.  I raised the matter with you because it was not clear to me whether you were asking me to stand the proceedings over to enable you to retain a lawyer.  I am not expressing a view one way or the other about the outcome of such an application.  I simply wished to know what the position is, whether you are making such an application or not.

PLAINTIFF S311/2012 (through interpreter):   Your Honour, I understand what you have told me, but I see that before I had a lawyer during the RRT, the Refugee Review Tribunal stage, and the charges – the money that I was paying to him ran out and he decided he cannot support me any more legally.  I have been pursuing this case using the legal rights

that I have and unfortunately when it went to the High Court, the High Court, there was no lawyer so the case lasted for about five minutes and it was dismissed.  The next one lasted for about nine minutes and was dismissed, all because I do not have a lawyer to represent me, and today I do not have it.  It is because I do not have the funds to engage one and because I am restricted in detention I do not have access, public access to get any help or find out what I can do to get a lawyer.

If I have the chance I will be talking to people I know because there are other issues that I have.  I have a child in Melbourne and people are supporting the child with their funds, so maybe I can be talking to people to help me to engage a lawyer.  But critically speaking, I have been coming by myself and I know it is a disaster because legally I do not understand many things that - the affidavit or any other paperwork I am given.

HER HONOUR:   Yes, all right.  I will ask Mr Knowles something now.  Mr Knowles, it is unclear to me whether or not the plaintiff is making an application to stand the matter over so that he can make endeavours to obtain a lawyer.  I ask what is your position in the event that that is an application that is being made?

MR KNOWLES:   Your Honour, that application, if made, would be opposed.  There are two reasons for that if your Honour wishes me to explain. 

HER HONOUR:   Yes, what are those?

MR KNOWLES:   Firstly, the first respondent would suffer significant prejudice as a result of the adjournment proposed because the plaintiff is in fact scheduled for removal tomorrow.

HER HONOUR:   I see.

MR KNOWLES:   There are, I am instructed, already arrangements in place for that removal.  The second matter would be more substantive is that even if the plaintiff was able to retain a lawyer, the inevitable result, in my submission, would be that the current proceedings would be dismissed in circumstances where, as set out in the written submissions, the plaintiff has sought to invoke the original jurisdiction of this Court as a way of bypassing the requirements of special leave.  In those circumstances, even if legal advice became available, it would not with respect assist.

HER HONOUR:   Yes, thank you, Mr Knowles.  Sir, I interrupted you in order to ask Mr Knowles what the Minister’s attitude would be if you were asking for an adjournment in order to obtain legal representation.  The Minister opposes that course.  Unless there is something further you wish to

put to me, in light of the nature of the application and the matters that have been put to me by the Minister, I would not be disposed to adjourning the proceedings, but if there is some further matter that you wish to put to me by all means do so.

PLAINTIFF S311/2012 (through interpreter):   Thank you, your Honour.  I appreciate that I do have some things to tell you. 

HER HONOUR:   At the moment, I am just wanting to hear from you about this question of whether you are asking for an adjournment.  I will come back in the event that there is no adjournment to invite you to tell me anything you wish to say about why the proceeding should not be dismissed, but that is a different matter.  Do you understand?

PLAINTIFF S311/2012 (through interpreter):   Your Honour, is it that what Mr Knowles is saying that I have received a letter that I will be forcibly removed from here tomorrow?  Is that what he is telling you?

HER HONOUR:   That is part of what Mr Knowles put to me as to why the Minister opposes any adjournment of the Minister’s summons.  The Minister has put arrangements in train for the plaintiff to be removed from Australia tomorrow; that is one circumstance on which the Minister relies.

PLAINTIFF S311/2012 (through interpreter):   Your Honour, I understand that the – I am asking you to postpone the case or give me time, and Mr Knowles is saying that is not on and you quite agree with him.  I take it on the chin, but I am not asking that.  I am prepared for the case to go on ‑ ‑ ‑

HER HONOUR:   I understand.

PLAINTIFF S311/2012 (through interpreter):   ‑ ‑ ‑ but there are things that I need to let you know which – the case, people handling it, have never looked at what I have been saying, which I need to tell you.

HER HONOUR:   Very well, sir.  I will hear from you in due course about the things you wish to tell me, but for the present I am dealing with the evidence that the Minister relies on, and that is the evidence of Ms Stone.  It is the material in her affidavit, largely the documents attached to it, which set out the history of the matter.  You tell me that you have received a copy of the affidavit.  I understand that you say that you have had difficulty understanding all that is contained in the documents that are attached to the affidavit.  Nonetheless, I propose to receive the affidavit.  Now, I am just going to ask Mr Knowles if there is any other evidence that he relies on.

MR KNOWLES:   No, your Honour.

HER HONOUR:   Very well.  Sir, the evidence that the Minister relies on is all contained in the affidavit of Ms Stone.  Do you have any evidence that you wish to put before the Court on this application – evidence directed to the question of why the proceedings should not be dismissed.

PLAINTIFF S311/2012 (through interpreter):   Can you repeat what you said?  It has been directed to me so I will go over to it, your Honour.

HER HONOUR:   I wish to know whether the plaintiff wishes to put any evidence before the Court today.

PLAINTIFF S311/2012 (through interpreter):   Yes, your Honour, I have some evidence to give you today.

HER HONOUR:   What evidence is that?

PLAINTIFF S311/2012 (through interpreter):   This is it, your Honour.  I have put it all in a statement that I have given copies to members representing the Minister and all that.  They all have it.  But I will repeat it here.

HER HONOUR:   Just one moment, if you would.  I think that you swore an affidavit on 21 October 2012 in support of the claims that you are making in your application.  Do you wish that affidavit to be taken into account on the hearing of this summons brought by the Minister?

PLAINTIFF S311/2012 (through interpreter):   Yes, member, I would like you to take that into context.  The man representing the Minister is basing the whole argument – why he is then refusing my application is that I stated I was gay in Ghana and then when I came here in Australia I have had a baby with a woman and then it is just totally different.  So I am not gay and that I am not truthful to what I said I am.

HER HONOUR:   I will come back to the question of any matters you want to put to me in a moment.  For the present, I am just trying to establish what evidence I have before me.  Now, I think you said that you do want to rely on your affidavit.  I will just ask Mr Knowles if he has any objection to any part of the affidavit.  Mr Knowles?

MR KNOWLES:   No, your Honour.

HER HONOUR:   Yes, thank you.

PLAINTIFF S311/2012 (through interpreter):   I am happy with that, your Honour.

HER HONOUR:   Now, in addition, I have a document which is signed by you and which was filed in the Registry of the Court on 22 November.  It is called “Plaintiff’s Submissions”.  That was filed at the same time as a summons in which you ask for orders, including that the defendant, the Minister for Immigration and Citizenship, consider his decision to grant you a protection visa.  Do you wish to have that summons and those submissions heard together with the application made by the Minister for your proceeding to be dismissed?

PLAINTIFF S311/2012 (through interpreter):   Yes, member, I want it to be part of it.

HER HONOUR:   I will just ask Mr Knowles something.  Mr Knowles, I take it you have a copy of the plaintiff’s submissions filed on 22 November?

MR KNOWLES:   I do, your Honour.

HER HONOUR:   Now, it is somewhat unclear to me what relief is claimed in the summons.  The first order sought is simply the show cause application filed by the plaintiff on 25 October 2012.  It is somewhat unclear but it would seem, at the very least, to be filed in opposition to your summons.  I think it is really seeking the relief claimed in the show cause application, is it not?

MR KNOWLES:   Yes, your Honour, I was going to suggest it may not be in opposition, it may simply be the summons that is envisaged by the rules to support a – or to follow a show cause application.

HER HONOUR:   For directions, the summons for directions?

MR KNOWLES:   It may be.

HER HONOUR:   Yes.  Well, in any ‑ ‑ ‑

MR KNOWLES:   I am not sure, your Honour.

HER HONOUR:   In any event, you have the plaintiff’s submissions which were filed with that summons and I think you may be right but they are an endeavour to comply with the rules.

MR KNOWLES:   Yes, your Honour, and I confirm I do have a copy of those submissions. 

HER HONOUR:   Yes, very well.  Now, the convenient course, I think, would be for me – perhaps, Mr Knowles, you have filed an outline of submissions in support of the summary dismissal of the proceedings.  Do I take it that has been served on the plaintiff?

MR KNOWLES:   Yes, your Honour.  That was served and that service is demonstrated by the affidavit of Samantha Brown.

HER HONOUR:   Yes, very well.  I think in the circumstances the most convenient course is for me to hear from the plaintiff any matters he wants to put in opposition of the relief and then I will come back to you, Mr Knowles.  Does that suit you?

MR KNOWLES:   It does, your Honour, may it please.

HER HONOUR:   Well, now, sir, you have received a copy of a document.  It is called “First Defendant’s Outline of Submissions”.  What that document does is to set out the various reasons why the Minister says that I should dismiss your application without it going to a full hearing.  Do you understand that?

PLAINTIFF S311/2012 (through interpreter):   Yes, your Honour, I do have copies of everything that they say and I understand that.

HER HONOUR:   If I could raise with you one aspect of the Minister’s application which is prominent in the way the Minister puts his case, it is this.  You complain that the Refugee Review Tribunal erred in affirming the decision not to grant you a protection visa.  Perhaps if you explain that, Mr Interpreter, and we will go through it bit by bit.

PLAINTIFF 311/2012 (through interpreter):   Yes, I understand.  Yes, member, I understand that.  I was not happy with the decision from RRT, Refugee Review Tribunal.  They claim that because I told them that I have a baby here in Australia and I have had one in Ghana tells them that I am not gay.  But the whole story, your Honour, is that my parents and a reverend minister felt that that style of life, being gay, is evil spirits.  They felt that I was possessed with evil spirits so I was put in front of – invited to a church, put in front of the congregation and at mass, prayers offered with the hope that I would be cured from being possessed by evil spirits and being gay.  I mentioned all this to the member and everything I put in the paper is truthful but they still think that because I have said that I was gay and I have revealed that I have a baby, they cannot accept it - that a gay person should have gone through this.  So, what I have been saying is the paperwork, if it is in front of you, is saying that and nobody seems to be listening to me.

HER HONOUR:   I understand your account of matters, sir.  What I am, at this stage, wishing to draw to your attention is this.  After the Refugee Review Tribunal agreed with the Minister’s delegate that the right decision had been to refuse you the protection visa you applied to the Federal Magistrates Court to review the legality of that decision. 

THE INTERPRETER:   Yes, your Honour, sorry, I am going to explain that to him.

HER HONOUR:   Yes, if you would.

PLAINTIFF S311/2012 (through interpreter):   Yes, that is correct.  That is correct, your Honour.  After those two stages from the delegate of the Minister and RRT, I went to the court.  That was where I should have got legal assistance.  I did not get it but because I knew in my heart that I am telling the truth, I went there.  Even there, still, I do not believe that what I was saying was heard because the paperwork which was given to me when I came in here called “The First Defendant’s Outline of Submissions”, the issues that I have raised, none is there.  The concerns that I want to tell you today, none is in the paperwork which an interpreter interpreted to me. 

HER HONOUR:   I will come to the matters you want to raise with me in a moment, but I want you to understand the issues that are raised by the Minister’s application.  The Minister points out that after you applied to the Federal Magistrates Court and your application was dismissed, you appealed to the Federal Court of Australia and the Federal Court judge dismissed that appeal.  You understand that background?

PLAINTIFF S311/2012 (through interpreter):   Yes, member, I understand that and so because they are not listening to me - five minutes – they do not even allow me to speak like you are prepared to listen to me.  It is only that I am very, very happy with what is happening because it is only you that is prepared to actually listen to what I have.  So that is correct, and I do understand that.

HER HONOUR:   The courts below, that is, the Federal Magistrates Court and the Federal Court, did not have the power to change the Minister’s decision because of any view about the facts of the matter.  The courts are concerned only with the question of whether the decision was arrived at in a legally correct manner.  Do you understand that?

PLAINTIFF S311/2012 (through interpreter):   Yes, member - your Honour, I understand.  I understand what you are saying and I know that what you are telling me is the absolute truth, but it is because I have been saying – telling the truth and people are not listening.  That is why I push it up to here.  It is not an issue that I am stretching the legal system; it is just that I want somebody who can listen to me.

HER HONOUR:   The Minister says this.  If, as a matter of law, you had a proper basis for challenging the approach that the Refugee Review Tribunal took, the ordinary course would have been for you to apply for special leave to appeal from the decision in the Federal Court, but that you did not do that and, in those circumstances, the Minister submits that it would be inappropriate for me to grant you the relief that you seek in your application and that indeed I should not allow it to go forward to a full hearing because it is an attempt to sidestep the proper and ordinary procedure which would be an application for special leave to appeal if you asserted there was some legal error in what had happened below.

PLAINTIFF S311/2012 (through interpreter):   Your Honour, I understand that, and just that it is now that I understand what you are saying.  I actually did not know there is a special procedure that you need to follow before the two courts could probably listen to my case.  All I knew, I applied to Legal Aid for assistance.  I was declined.  I have the paperwork here.  Legal Aid said they could not do it, and I followed my instincts, so is it now turning a bit too legal now, but I quite understand what you are saying too.  So it is just a Catch-22 situation for me.  It is something I did not know that it has to be a special way of applying.  I thought that you go to court and that is it.  That is why I chose that option.

HER HONOUR:   Now, is there anything else that you wish to put to me?  I do draw to your attention that the factual merits of the case are not issues with which this Court can be concerned. 

PLAINTIFF S311/2012 (through interpreter):   Your Honour, I understand that it is also difficult for you like so hard for me but then what do I do now?  I have some facts to let you know and I want you to give me a fair hearing on that.  I have not had the support.  Now, the Minister is saying he is going to deport me tomorrow and I know that – that I may not even live to see this handsome child that I have.  Would I be given the opportunity to take my child away or I have to leave the child in Australia?  So these are some of the questions that I hope you will help me to address.

HER HONOUR:   I cannot give you any advice or any assistance concerning your access to the child, sir.  Is there anything further you wish to put to me?

PLAINTIFF S311/2012 (through interpreter):   Your Honour, what it is that I am really scared, the idea that I will be sent back to Ghana tomorrow.  I cannot go to Ghana.  Maybe – maybe advice I will take Nigeria, Fiji or any other country but not in Ghana.  All the stuff I had there has been destroyed by people in the area that I lived and I know that if I go I am not going to live and it saddens me that nobody is listening to me and just send me to go and die is disastrous. 

HER HONOUR:   Is there anything further you wish to put, sir?

PLAINTIFF 311/2012 (through interpreter):   I am appealing to you to tell Mr Knowles that they should add the child to me and go with the child – because he is my child.  I would love to have my child, not leave him behind. 

HER HONOUR:   Yes, thank you, sir.  Does that complete everything you wish to put?

PLAINTIFF S311/2012 (through interpreter):   No, no, no, your Honour, I have not finished.  The first point, your Honour, I have mentioned that I cannot go to Ghana because the mob will kill me – those guys will kill me and I cannot just go.  I have been supporting, although I am in detention, I have got friends that I give money and the bit of money that I have, I have received money I send to the child every now and then and I will look after the child.  Although, I got receipts up here, your Honour, for looking after the child.  So, he is my child.  I love him and I do not know why this is being done to somebody who has got a child – Australian here. 

I have a lot of text messages on the phone which is being held by the officer who brought me down here, my own personal phone, a lot of text messages from the child’s mum who is pretty upset with me because when she had the child, I had been detained too, so I could not go to visit and they questioned that how could you love a child when you have not seen him.  It is just that it is not a matter of only seeing somebody before you love that person.  So you could not be bothered to come and support me here because I could not go and visit her.  However, when I send money to her, she takes it and sends the text message to thank me or rings to thank me.  So, that is one of the issues that I want you to take into perspective, your Honour.

I want it to be filed, too, what I am saying here, your Honour, put on a file that I requested my child to come with me and may not probably be granted but for sure is going to be a big boy in future and if I am not sent to Ghana but probably sent to any other country where I think my life will be – not be at stake, there will be communication some time with this boy but please tell them not to take me to Ghana because I know it is not good for me to go to Ghana.

HER HONOUR:   Yes, thank you.  Does that complete the matters you wish to put?

PLAINTIFF S311/2012 (through interpreter):   It saddens me, your Honour, that the RRT, the member representing the body, thinks that because I have had a baby here I am not gay, but we never can understand what people – or things that befall people in their life.  So he is only dwelling on this issue, that because I have a baby I am not gay.  But I know that many gay people probably even adopt babies and others, so I do not know why this has been done to me and nobody seems to be listening.

THE INTERPRETER:   It tends to be a repeat now, your Honour.

PLAINTIFF S311/2012 (through interpreter):   It is just that because the RRT member refused and then even when I was at detention a guy that came to talk to me also said that he thinks that I am a homosexual and cannot comprehend that after going through all the processes of healing, which my mum and the reverend minister back home in Ghana did to me, this annoyed a lot of people, that is why they went and burnt down my kiosk and my property, so that I have swapped camp from here to here and all that and I am not consistent in life so I do not deserve to live.  All that frightens me, the idea of going back to Ghana, and I am still appealing that if the Minister wants to forcibly remove me, do not take me to Ghana but to any other country.  I will be happy with that.

The child is three years now, your Honour, and I know that for sure if I do not die, the child when he grows up will ask the mother where is my dad and he might pursue looking for me.  So I just want it to be on record that if the boy probably goes through the court system to track his father, he might also know that, “Oh, father talked about me”, and I want all those to be recorded very well.  I have the pictures here of him and the mother as well, all the pictures here indicate that, but still the RRT member did not think that I was telling the truth.  That really saddens me.  That is why I pursued the order.

It is not an intent to delay my – after they refused to send me away, it is not an intent to play on the legal system at all like I have been accused.  It is just that I think that I might one day have somebody who will listen and I appreciate that you have really listened to me.  Unfortunately I did not know the legal rights and the procedures that involved.  That is why being stated here and the paperwork in front of me that I did not file – approach the proper procedure to let the case be heard and I did not do anything within probably specified time.  Of course if I had access to lawyers they would have probably advised me that you need to that.  I did not, and I have been pursuing things by myself and here I even have an interpreter to help me to understand everything, so let alone know the proper procedures to file cases.  I have been telling the truth and I thank you for your help.

HER HONOUR:   Yes, thank you, sir.  I will ask Mr Knowles something now.  Mr Knowles, is there anything you wish to add to your outline of submissions?

MR KNOWLES:   Only this, your Honour, the matters addressed by the plaintiff, with one possible exception, this morning, relate solely either to matters that go to the merits of the Tribunal’s decision or other matters of hardship which are not relevant to the grant of a protection visa and by that I mean matters associated with the plaintiff’s daughter. 

The one possible exception is that I understood the plaintiff to say that whilst your Honour is listening to him that the other courts did not allow him to speak or did not listen to him.  That, on one view, is a complaint of a procedural nature which, if true, could give rise to an error but, in my submission, there is no evidence of that and, in fact, the judgments of the Federal Magistrates Court and the Federal Court as well as the Tribunal indicate that the plaintiff was given an opportunity to put his case.  I can take your Honour to the relevant parts if that is useful.

HER HONOUR:   Yes, thank you, perhaps if you would just direct my attention to that.

MR KNOWLES:   Yes, your Honour.  Unfortunately, the affidavit of Ms Stone is not paginated but if your Honour finds the Tribunal’s decision in the annexure, it is at annexure – I apologise, your Honour ‑ ‑ ‑

HER HONOUR:   I have the Tribunal’s decision.  Yes.

MR KNOWLES:   In the Tribunal’s decision, there is a section – which is not unusual in these decisions, starting from paragraph 18, describing the applicant’s claims and evidence ‑ ‑ ‑

HER HONOUR:   Yes, I see that. 

MR KNOWLES:   At paragraph 31 it refers to an interview by the delegate and it later goes on to record the applicant’s claims at the Tribunal hearing.

HER HONOUR:   Yes.

MR KNOWLES:   In the proceedings before the Federal Magistrate ‑ ‑ ‑

HER HONOUR:   Yes, I have that.

MR KNOWLES:   At page 4 of those reasons, paragraph 12, there is a reference to the federal magistrate asking the then applicant, now plaintiff,

about a matter going to a ground of review.  He was given an opportunity to respond to that.

HER HONOUR:   Yes, I see that.

MR KNOWLES:   And before Justice Nicholas in the Federal Court at page 3 of that decision at paragraph 9 in the first two sentences his Honour says that the then appellant, now plaintiff:

did not seek to identify any legal error in the Federal Magistrate’s reasons during the course of today’s hearing.  Rather, he sought to persuade me that the Tribunal ought to have accepted his claim –

which indicates that the Federal Court, as one would expect, gave the plaintiff an opportunity to be heard.

HER HONOUR:   Thank you, Mr Knowles. 

This an application for summary dismissal of the proceedings brought in the Court’s original jurisdiction by which the plaintiff claims constitutional writ relief.  The second defendant, the Refugee Review Tribunal, has filed a submitting appearance.

The plaintiff is a citizen of Ghana.  He arrived in Australia on 11 March 2006.  He applied for a protection visa on 3 November 2011.  In his application he claimed to fear persecution in Ghana on the ground of his homosexuality.  On 15 December 2011, a delegate of the Minister refused to grant the visa.  The plaintiff applied to the Refugee Review Tribunal for a review of the delegate’s decision.  On 15 February 2012, the Tribunal affirmed that decision.  On 26 June 2012, a federal magistrate dismissed the plaintiff’s application for judicial review of the Tribunal’s decision.  On 27 September 2012, Justice Nicholas in the Federal Court of Australia dismissed an appeal from the orders of the federal magistrate.

The present proceedings were commenced on 25 October 2012 by the filing of an application for an order to show cause.  Among the claims for relief in that application are claims for the issue of a writ of certiorari to quash the orders of the Tribunal and for mandamus directed to the Tribunal.  Claims are also made for prohibition and habeas corpus directed to the Minister and for an injunction to restrain the Minister from removing the plaintiff from Australia.  An application for an extension of time in which to bring the proceedings is sought.

In his application and an affidavit filed in support of the relief claimed in the application, the plaintiff makes unparticularised assertions that he was denied procedural fairness by the Minister’s delegate and by the Tribunal and that the Tribunal “constructively failed to exercise jurisdiction” and that its decision was “beyond power”.  The plaintiff claims that his life will be endangered if he returns to Ghana. 

By summons filed on 1 November 2012, the Minister seeks an order for the summary dismissal of the application on the ground that it is vexatious and an abuse of process.  The Minister contends that the plaintiff’s claims have been fully ventilated in the courts below.  He invites the Court to infer that the application has been designed in order to delay the plaintiff’s removal from Australia.  It is unnecessary in the circumstances to determine whether it is appropriate to draw that inference.

In Glennan v Federal Commissioner of Taxation (2003) 198 ALR 250 at 255 [17], the Full Court approved the statement of the principles by Justice Kirby respecting the grant of relief under section 75(v) in Re Heerey; Ex parte Heinrich (2001) 185 ALR 106 at 109-110 [17]-[18]. In that case, his Honour observed that although this Court has jurisdiction with respect to the issue of the constitutional writs, it will ordinarily, as a matter of discretion, refuse that relief in circumstances in which a plaintiff has failed to engage the appellate jurisdiction of the Court. As his Honour noted, if any other approach were adopted, and I quote:

“every party, dissatisfied with a decision of federal judges or magistrates, might seek to engage the original jurisdiction of the court under s 75(v) of the Constitution, asserting actual or constructive failure on the part of those judicial officers to exercise their jurisdiction in accordance with law, thereby circumventing the statutory requirements of special leave.”

The plaintiff has not sought to obtain a grant of special leave to appeal from the decision of the Federal Court of Australia.  The written materials filed by the plaintiff provide no support for his broad and unparticularised claims of legal error on the part of the Tribunal.  His submissions do not engage with the reasoning of the courts below.  In oral submissions this morning, the plaintiff asserted that the courts below had not listened to him.  As Mr Knowles, who appears for the Minister, has noted, that assertion is not supported by reference to the reasons of Federal Magistrate Raphael and the reasons of Justice Nicholas.  No evidence has been led in support of it.  There is before me nothing to lend colour to that assertion.

There is nothing before me to suggest that this is an appropriate case in which to permit the proceedings to continue against the background that I have summarised above. 

For these reasons, pursuant to rule 27.09.4 of the High Court Rules 2004, the plaintiff’s show cause application filed on 25 October 2012 is dismissed. I direct the plaintiff to pay the first defendant’s costs.

The Court will adjourn.

AT 12.25 PM THE MATTER WAS CONCLUDED