Plaintiff S32/2016 v Minister for Immigration and Border Protection & Anor

[2016] HCATrans 120

[2016] HCATrans 120

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S32 of 2016

B e t w e e n -

PLAINTIFF S32/2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

Application for an order to show cause

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 19 MAY 2016, AT 12.00 PM

Copyright in the High Court of Australia

PLAINTIFF S32/2016 appeared in person.

MR R.S. FRANCOIS:   If the Court pleases, I appear for the respondent Minister.  (instructed by Minter Ellison)

HER HONOUR:   Sir, you are the plaintiff in these proceedings.  You are asking the Court to set aside the decision made by the Administrative Appeals Tribunal in March 2014.

PLAINTIFF S32/2016:   Yes.

SHATHA MANSI, sworn as interpreter.

HER HONOUR:   Sir, I understand the gentleman in the body of the Court is a person who you would wish to have assist you with your application.  Is that correct?

PLAINTIFF S32/2016 (through interpreter):   Yes.

HER HONOUR:   Is that gentleman Mr Seikh Tanveer Hossain?

PLAINTIFF S32/2016 (through interpreter):   Yes, he is.

HER HONOUR:   Mr Hossain has sworn an affidavit in these proceedings on which you seek to rely.  Is that so?

PLAINTIFF S32/2016 (through interpreter):   Yes, it is.

HER HONOUR:   Sir, I am not prepared to allow Mr Hossain to speak for you in these proceedings, but if you would like him to come up and sit near you so that you can, if you need to, obtain advice from him, I am willing to allow that.

PLAINTIFF S32/2016 (through interpreter):   Can he come and sit beside me here?

HER HONOUR:   Yes, he may.  Now, you rely on Mr Hossain’s affidavit and on an affidavit that you swore on 19 January of this year.  Is that right?

PLAINTIFF S32/2016 (through interpreter):   Yes.

HER HONOUR:   Is that the material that you wish to put before the Court in support of your application for an extension of time in which to bring these proceedings?

PLAINTIFF S32/2016 (through interpreter):   Yes.

HER HONOUR:   Ms Francois, is there any objection to the affidavit evidence?

MS FRANCOIS:   Your Honour, the difficulty we have is that we saw that there was reference to an affidavit in the further submissions filed by the plaintiff on 19 April 2016, but when we made inquiries with the Registry, we were told there was no affidavit that had been filed.  So I have not seen it, but if I could just have a short moment to see it, I am sure I can deal with it relatively quickly.

HER HONOUR:   Indeed.  Let me just hand it down to you, Ms Francois.

MS FRANCOIS:   Thank you, your Honour.

HER HONOUR:   Do I take it you do have the affidavit that was sworn by the plaintiff in support of the application?

MS FRANCOIS:   Yes, that is the one‑page affidavit and the one exhibit.

HER HONOUR:   Yes.

MS FRANCOIS:   Thank you, your Honour.

HER HONOUR:   Ms Francois has not seen the affidavit that you filed, that is Mr Hossain’s affidavit.  It should have been served on her solicitors.  We will just take a few moments to allow Ms Francois to read the affidavit to see if she objects to any part of it.

MS FRANCOIS:   Your Honour, I might need a short adjournment, just because there are a number of matters there which are objectionable and I probably need to speak to my instructing solicitor about them.

HER HONOUR:   Yes, that seems reasonable.  In the circumstances, I will adjourn and, perhaps, Ms Francois, when you have had an opportunity to obtain those instructions you might let the Registry know.

MS FRANCOIS:   Thank you, your Honour.

HER HONOUR:   The Court will adjourn.

AT 12.06 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.35 PM:

HER HONOUR:   Yes, Ms Francois.

MS FRANCOIS:   Thank you for that opportunity, your Honour.  May I say that the inquiry we made of the Registry was on 22 April in the morning, which probably explains why they said there was no affidavit because it must have been filed after that.

HER HONOUR:   I see.  Yes, very well.

MS FRANCOIS:   Your Honour, there are objections that we wish to make of different kinds and we have limited it – putting aside boring questions of relevance, all we wish to pursue are SH‑18 and SH‑19 which are complaints made in March of this year to certain bodies about the conduct of the Australian Government in relation to the process that was then taken to have the applicant removed from Australia.  That cannot in any way be relevant to this application.

HER HONOUR:   Yes.  So they are the two objections?

MS FRANCOIS:   No.  The next category of objections is to SH ‑ ‑ ‑

HER HONOUR:   I see.  Yes, just bear with a moment.  I will see if I can turn up those exhibits.

MS FRANCOIS:   Behind the affidavit there is a page numbering system that assists you to find them – by reference to page number.  So SH‑18 and SH‑19 – I do not have a copy of the affidavit but there is an index which will tell you where those ‑ ‑ ‑

HER HONOUR:   I see.  Is this an index of the – no, the index at the front does not appear to have that – unless I am – let me just see if I can turn it up.

MS FRANCOIS:   Thank you, your Honour.  Your Honour, page 3 of the affidavit contains an index.

HER HONOUR:   I see.

MS FRANCOIS:   The numbers on the bottom right‑hand side indicate that these are at 67 to 69.

HER HONOUR:   Thank you.  Yes, any other objections?

MS FRANCOIS:   Those are the first two objections.  Then the others are in a different category and they relate to exhibits SH‑20 through to SH‑24, which are all in the same category of being decisions and orders made in relation to Mr Issa and our objection is related to section 91 of the Evidence Act so they are not admissible to prove the facts that are discussed therein and, in any event, they seem to be an attempt to introduce similar fact evidence and so, should they otherwise have been admissible, there is then that question.  Those are all the objections, your Honour.

HER HONOUR:   Yes, thank you.  Now, sir, some of the material which is attached to Mr Hossain’s affidavit concerns complaints that you made in March of this year to the Australian Government relating to a breach of your privacy.  Those are objected to by the Minister because complaints that you have made to the Australian Government in March of this year can have no possible bearing on the reasons why you should be given an extension of time in which to challenge a decision that was made in the Refugee Review Tribunal in March 2014.  Now, is there anything you want to put to me – my provisional view is that that objection to that material is well made.

THE INTERPRETER:   Can he talk ‑ ‑ ‑

HER HONOUR:   No.  No, the plaintiff is the only person who I will permit to address me on the subject of the application.  Yes - I am sorry, sir, I cannot hear you.

PLAINTIFF S32/2016:   Okay, sorry, sorry.

PLAINTIFF S32/2016 (through interpreter):   I am a bit confused and nervous.  Your Honour, I swore that extension because my life was in danger if I go back to Egypt.

HER HONOUR:   I will give you an opportunity in a moment to explain to me the reasons why you seek the extension.  At the moment, I am directing your attention to the objection that the Minister takes to you putting material before the Court about a complaint that you made in March of this year because the Minister says it cannot be relevant to the issues that I am to deal with.  Now, on the face of matters, that seems a very soundly‑based objection by the Minister.  Do you have anything to say as to why I should not accept that objection and exclude from my consideration the documents relating to your freedom of information complaint about a privacy issue made in March of this year?

PLAINTIFF S32/2016 (through interpreter):   The complaint that I address the Minister, yes?  My counsel wants to speak to me.  Immigration did not give me any time so that I can talk to them or not.  I just received this writ at night and in the morning I was about to talk to my counsel and I am advised in 2015 that no information should be disclosed to my counsel.  If I talk to my counsel that will endanger my life ‑ ‑ ‑

HER HONOUR:   All right.  I am going to interrupt you, sir.  Nothing that you have said explains why this material is relevant to the present application so I propose to exclude it and I do.  Now, I will move next to the other material that is the subject of objection and that is the material concerning the disciplinary proceedings conducted against your former migration agent.  I understand that it is your case that the proceedings before the Refugee Review Tribunal in law were attended by error because your migration agent procured your agreement to the matter proceeding without a hearing.  I understand that. 

The basis of the Minister’s objection to me receiving evidence about disciplinary proceedings that were later taken against your migration agent is that you cannot invite me to make factual findings on the basis of the findings made by the disciplinary tribunal.  Again, on the face of things, the Minister’s objection is a soundly‑based one.  Now, is there anything you want to say about that matter?

PLAINTIFF S32/2016 (through interpreter):   The agent was not the appropriate person.  He was not fit – he was not fit and it shows that he was not honest with me.

HER HONOUR:   I understand, as I have already explained to you, that you wish to have this Court consider a case based on what you say was the misconduct of your migration agent. 

PLAINTIFF S32/2016 (through interpreter):   Yes, he ‑ ‑ ‑

HER HONOUR:   I do not propose to receive the material that is exhibited to Mr Hossain’s affidavit as exhibits 20 to 24 which concern the proceedings that have been taken against the migration agent because I consider the Minister’s objections to the receipt of that material to be well based in law, but that does not mean that I do not understand that the case that you seek to make, if time is extended, concerns the suggested misconduct of the agent in your case.  I will read the affidavit then of Mr Hossain but I reject the – the exhibits SH‑18 to 24 inclusive.

MS FRANCOIS:   Your Honour, might I just say one thing in relation to the affidavit of the plaintiff filed on 22 January?

HER HONOUR:   Yes.

MS FRANCOIS:   That is that we do not accept the truth of paragraph 2, but for the purposes of today we understand that does not trouble you whether or not that is true that is the case he wishes to make.

HER HONOUR:   Indeed.  Thank you, Ms Francois.  Yes, very well.  Well, now, sir, I have before me as the evidence in your application your affidavit and Mr Hossain’s affidavit but without the exhibits that I have just referred to.  I am now going to ask Ms Francois if she relies on the affidavit of the Minister’s solicitor, Mr Pinder, which is dated 1 April 2016.  Do I understand you read that affidavit?

MS FRANCOIS:   I do, your Honour, thank you.

HER HONOUR:   Yes.  Is there any objection to Mr Pinder’s affidavit?  Yes, very well, and I take it that is your evidence, Ms Francois?

MS FRANCOIS:   Yes, your Honour.

HER HONOUR:   Yes, very well, the evidence is complete.  Now, sir, let me explain some matters to you before I invite you to say anything further to me.  In January of this year you commenced proceedings in this Court applying for an order quashing the decision of the Refugee Review Tribunal that was made two years before in January 2014.  The decision that the Tribunal made is one which, under the Migration Act, is subject to a time limit. 

An application of the kind that you have made to this Court was required to be made within 35 days of the date on which the Tribunal handed down its decision.  The Tribunal handed down its decision on 20 January 2014, so any application to this Court should have been made within 35 days of that date.

The order that you seek to quash the decision is also subject to a rule under the rules made for the conduct of this Court that an application to quash is to be made within six months of the decision that is sought to be quashed.  The usual approach adopted by this Court to an application to extend time in which to bring a proceeding to quash an order is that very exceptional circumstances have to be established where that application is brought more than a year after the decision.

Under the Migration Act, before I could extend time, I would need to be satisfied that it is in the interests of the administration of justice to make that order.  Your application seeking the extension, made in writing to this Court, is required to specify the reasons why you say it is in the interests of the administration of justice that I make that order.

Now, when I turn to your application, all that I find in that respect is the statement, “Since then I had a few failed attempt to obtain justice”.  The Minister draws to attention that in the period after the Tribunal made its decision, you applied to the Minister for him to exercise his power to intervene and make a more favourable decision concerning a visa application and the Minister points to the fact that in that application it was said on your behalf that your case, while not strictly satisfying the criteria of having refugee status, nonetheless was a case where there were significant threats to your life and safety and for that reason you were asking for special consideration from the Minister.  Do you understand?

Then, when the Minister failed to grant you the visa, in the exercise of the Minister’s personal power, you applied to commence proceedings in the Federal Circuit Court seeking to have the Tribunal’s decision set aside.  The Federal Circuit Court refused to extend time to bring that application but before doing so Judge Manousaridis looked at the merits of your claim and concluded that you did not have an arguable claim for the relief that you were seeking.

The Minister submits, amongst other things, that you have failed to explain the delay in bringing this proceeding and that to simply bring fresh proceedings in this Court, having failed in the Federal Circuit Court, and not having sought any relief arising out of the Federal Court’s orders, is an abuse of process.  Those are the two bases on which the Minister submits I would refuse the extension that you seek.

Now, I have read your affidavit and a document titled “Plaintiff’s Outline of Submissions”.  Are there further matters that you wish to put to me dealing with those objections that the Minister has to the grant of the extension of time?  Yes.

PLAINTIFF S32/2016 (through interpreter):   I will talk about the first point.  The letter that I sent to him was – I did not say that I am not a refugee.  I did not say that at all.  I said I am a refugee and the second point is the Federal Circuit Court told me that I do not have a real case and ‑ ‑ ‑

HER HONOUR:   I am sorry, could you – who told him?

PLAINTIFF S32/2016 (through interpreter):   The Federal Circuit Court.

HER HONOUR:   Yes.

PLAINTIFF S32/2016 (through interpreter):   That I do not have a case and they did not give me any chance for hearing.

HER HONOUR:   Yes.

PLAINTIFF S32/2016 (through interpreter):   And the Federal Court told me that they do not have any power to take my case.

HER HONOUR:   Yes.

PLAINTIFF S32/2016 (through interpreter):   I refer to point SH‑9 – and the material please.

HER HONOUR:   That is the reasons of the Federal Circuit Court.  Yes, I have those.  Yes.

PLAINTIFF S32/2016:   Yes, there is a judgment for ‑ ‑ ‑

PLAINTIFF S32/2016 (through interpreter):   SH‑10 ‑ ‑ ‑

HER HONOUR:   Yes.

PLAINTIFF S32/2016 (through interpreter):   It is a letter for the Court, for the Federal Court.  Issam Issa lied.

HER HONOUR:   I cannot hear very well.

PLAINTIFF S32/2016 (through interpreter):   Sammy – Sammy Issa – he lied.

HER HONOUR:   Yes.  I see.

PLAINTIFF S32/2016 (through interpreter):   Referring to first point.

HER HONOUR:   Yes, I understand.

PLAINTIFF S32/2016 (through interpreter):   The Tribunal did not give me any chance for hearing.  Based on these two reasons the Federal Court did not give me any chance.  They said we do not have any power.

HER HONOUR:   Yes, thank you.  Ms Francois, I trust I have fairly put to the plaintiff the substance of the submissions that have been filed on the Minister’s behalf.

MS FRANCOIS:   Yes.

HER HONOUR:   May I just take up a couple of matters with you?  Am I right in my understanding that the determination by the Federal Circuit Court not to grant leave to extend time in which to bring the review application does not admit of appeal to the Federal Court of Australia?

MS FRANCOIS:   That is correct.

HER HONOUR: Yes. That is because of section 24(1AA) of the Federal Court of Australia Act.  Is that right? 

MS FRANCOIS:   I think it is also the Migration Act.  Sorry, your Honour, I have not – my instructing solicitor and I will try and bring that up.

HER HONOUR:   Just while you do so, I note that under 24(1AA)(a), the preclusion on appeals refers to a determination of an application of a kind made in section 20(3) and that is an application, amongst other things, for an extension of time in which to institute proceedings.  So that does seem to be the case. 

The plaintiff referred me to the letter which is exhibit SH‑10 to Mr Hossain’s affidavit and that is the advice from the registry of the Federal Circuit Court that the application had been dismissed, that there was no jurisdiction to appeal and that the plaintiff should seek independent legal advice in relation to his options.  The Minister’s contention is that one line of redress might have been proceedings under 39B in the Federal Court.

MS FRANCOIS:   Yes.

HER HONOUR:   Or, I suppose, in a timely fashion in this Court which might then have been remitted, indeed.

MS FRANCOIS:   Indeed.

HER HONOUR:   Yes.

MS FRANCOIS:   There is a slew of litigation now occurring in the Federal Court about the extent of the Federal Circuit Court’s jurisdiction with respect to these extensions of time.  So what are the mandatory considerations, the failure of which to take into account will invalidate the decision of the Federal Circuit Court so there is some litigation currently proceeding along those lines.

HER HONOUR:   Yes, thank you.

MS FRANCOIS:   Your Honour, just to also provide some assistance, my solicitor has brought up and it is 476A(3)(a).

HER HONOUR:   Yes, I understand, thank you.

MS FRANCOIS:   Yes.

HER HONOUR:   I might just raise one further matter with – you referred me to the notice from the registry of the Federal Circuit Court advising you that your application had been dismissed, that there was no right of appeal from that dismissal and suggesting that you should obtain legal advice about your options.  Is there anything you wish to tell me about the steps that you took to do that?  Yes.

PLAINTIFF S32/2016 (through interpreter):   When I was in the detention centre I did not have a lawyer and this is why I wrote to the Minister.  There used to be lawyers to come to the detention every Thursday.  I asked if I can apply for the Federal Court or if I – they told me I do not have any options to apply for the court.  This is why I wrote to the Minister.  I just wrote to the Minister so that I – just to lift the bars.  I did not ask the Minister for a visa.  I just wanted another chance.

HER HONOUR:   Yes, thank you.

PLAINTIFF S32/2016:   Thank you.

HER HONOUR:   On 22 January 2016, the plaintiff filed a summons and an application for an order to show cause.  He claims certiorari to quash the decision of the second defendant, the Administrative Appeals Tribunal, made on 20 January 2014.  He also seeks prohibition or an injunction against the Minister for Immigration and Border Protection (“the first defendant”) restraining him from giving effect to the Tribunal’s decision.  The plaintiff appears in person.  The Tribunal has filed a submitting appearance.

The Tribunal’s decision affirmed that of the delegate of the Minister not to grant the plaintiff a Protection (Class XA) visa.  The plaintiff claims that the decision was affected by jurisdictional error arising as the result of the conduct of his migration agent.  In short, it is the plaintiff’s case that his migration agent procured his signature to a document stating that he wished the Tribunal to determine his application on the papers and that he was not advised of the effect of that election.  He seeks to make a case that the deceptive conduct of the migration agent disabled the Tribunal from discharging its statutory functions with the result that its decision in law is no decision at all[1].

[1] SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at 206 [51] and [52].

The Tribunal’s decision is a migration decision under the Migration Act 1958 (Cth). Section 486A(1) provides that an application for a remedy to be granted in the exercise of this Court’s original jurisdiction in relation to a migration decision must be made within 35 days of the date of the decision. The Court may extend that period if an application for the extension is made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order and the Court is satisfied that it is necessary so to do.

Additionally, r 25.06.1 of the High Court Rules 2004 (Cth) provides that an application for certiorari is to be brought within six months of the decision that is the subject of the challenge. The Minister opposes the enlargement of time, submitting that no explanation has been provided for the lengthy delay in commencing the proceedings. The Minister relies on the frequently cited observation of Justice McHugh in Re Commonwealth of Australia; Ex parte Marks[2] that in all but “very exceptional cases” the time limit for certiorari should be rigidly applied when more than one year has elapsed between the decision and the commencement of the proceedings.  Separately, the Minister contends that the proceedings are an abuse of process.

[2] (2000) 177 ALR 491 at 495 - 496 [16].

The plaintiff has sworn an affidavit in support of the relief claimed with respect to the enlargement of time.  The only account of the reasons for the delay is the assertion that following the Tribunal’s determination “I had a few failed attempt to obtain justice”.

The Minister submits that the history following the Tribunal’s decision requires reference to the matters that are the subject of the affidavit of his solicitor, Mr Pinder. Exhibited to that affidavit is a letter dated 5 March 2014 addressed to the Minister seeking ministerial intervention under s 417 of the Migration Act.  On 21 May 2014, the Minister declined to intervene.

On 23 September 2014, the plaintiff filed an application in the Federal Circuit Court seeking an extension of time in which to seek judicial review of the Tribunal’s decision.  On 3 September 2015, the Federal Circuit Court dismissed that application.  The Federal Circuit Court held that no sufficient explanation for the delay in bringing the application had been provided.  In determining not to grant the extension sought, consideration was given to the merits of the plaintiff’s claim.  This consideration included a ground of challenge advanced orally on the hearing arising out of the claimed misconduct of the migration agent.  The Federal Circuit Court found that no arguable case of fraud by the agent was established.  Taking into account the issues identified by the delegate and the absence of material suggested by the plaintiff that he might have placed before the Tribunal in order to address those issues, the Federal Circuit Court considered that the advice that the application be dealt with on the papers may well have fallen within the range of reasonable advice.

No appeal lay to the Federal Court of Australia from the decision of the Federal Circuit Court refusing to extend time. The Minister observes that the plaintiff could have sought review of the decision under s 39B of the Judiciary Act 1903 (Cth) in the Federal Court. In his submission, having brought proceedings in which the conduct of the plaintiff’s migration agent was ventilated, it is an abuse of process to start afresh invoking the original jurisdiction of this Court. That submission need not be further examined.

In this Court, the plaintiff is seeking to impugn the decision of the second defendant, then the Refugee Review Tribunal, delivered two years before his application was filed. No circumstance of the kind that might qualify as exceptional justifying the enlargement of time to apply for certiorari to quash the decision after this interval is identified. The balance of the relief claimed in the show cause application is dependent upon the issue of certiorari. Moreover, nothing in the material filed in support of the application satisfies me for the purposes of s 486A(2)(b) of the Migration Act that it is necessary in the interests of the administration of justice to extend time under that Act.  For these reasons, the summons and the application are dismissed with costs.

MS FRANCOIS:   As the Court pleases.

HER HONOUR:   The Court will adjourn.

AT 1.35 PM THE MATTER WAS CONCLUDED