Plaintiff S33 of 2016 v Minister for Immigration and Border Protection & Anor

[2016] HCATrans 214

[2016] HCATrans 214

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S33 of 2016

B e t w e e n -

PLAINTIFF S33 OF 2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 7 SEPTEMBER 2016, AT 10.15 AM

Copyright in the High Court of Australia

PLAINTIFF S33/2016 appeared in person.

MR T. REILLY:   I appear for the first defendant, if your Honour pleases.  (instructed by DLA Piper Australia)

SEVU WAQATAIREWA, sworn as interpreter.

HER HONOUR:   Mr Reilly, I have read the papers in this matter.  Do I take it you rely on the submissions filed on 1 September 2016?

MR REILLY:   Yes, your Honour, and the affidavit of Chloe Ann Hillary affirmed 31 August 2016.

HER HONOUR:   Yes, thank you, and there was a delay here of more than eight months.

MR REILLY:   Yes, that is so.

HER HONOUR:   That is, more than eight months after the expiration of the 35‑day period?

MR REILLY:   I think it might be seven months after – approximately seven months after the expiration of the 35 days.

HER HONOUR:   Yes, very well.  Thank you.  Madam, do you have a copy of the submissions that the Minister has filed.

PLAINTIFF S33/2016 (through interpreter):   Yes, she does, your Honour.

HER HONOUR:   Has someone explained to you the content of those submissions?

PLAINTIFF S33/2016 (through interpreter):   She has read it and it is clear to her, your Honour.

HER HONOUR:   So you understand that the Minister is asking me not to make an order extending time to allow you to bring this proceeding in the Court, do you understand that?

PLAINTIFF S33/2016 (through interpreter):   Yes, your Honour.

HER HONOUR:   And the Minister does that because he says, firstly, there is a long delay and it is not adequately explained and, secondly, he says the application in any event lacks any legal merit.  He points out that in your affidavit which you filed at the time you sought to commence the proceedings you referred to having mental health difficulties associated with your miscarriage, and the Minister points out these were not matters that you referred to when you wrote to him asking him to intervene and make a more favourable decision.  Is there anything that you wish to put to me today as to why I would extend time?

PLAINTIFF S33/2016 (through interpreter):   Your Honour, she is stating that she did not receive the letter from the Minister until she reported – she went in when her three months was due, the visa extension.  When she goes to report every three months, that is when she found out about the Minister’s letter, which is why she was – there is that gap on that period, in addition to her having the health issues that she stated.  She said that the first letter she received from the Minister was not signed.  Then when she received the second one she asked why it was not signed and then when she received it the second time via email then it was signed. 

HER HONOUR:   The matter that I was raising with you was the Minister’s submission that you did not, when you wrote to him on 5 June 2015 asking him to personally intervene and grant you the protection visa - you did not refer to the miscarriage and to your mental health problems which you say formed part of the reason why you did not proceed to commence proceedings.

PLAINTIFF S33/2016 (through interpreter):   She apologises for not submitting that any earlier.

HER HONOUR:   Yes, is there anything else she wants to put to me?

PLAINTIFF S33/2016 (through interpreter):   No, your Honour.

HER HONOUR:   Thank you.  Yes, I do not need to hear further from you, Mr Reilly.

The plaintiff is a citizen of Fiji who arrived in Australia on a tourist visa on 4 December 2013.  She applied for a protection visa on 27 February 2014.  Her claims to engage Australia’s protection obligations were based on a history of being subjected to domestic violence by her de facto partner.  In particular, her claims focused on an incident that was alleged to have occurred on 15 November 2013 which had led her to flee from the home that she shared with her de facto partner. 

A delegate of the first defendant, the Minister for Immigration and Border Protection, refused the plaintiff’s application on the basis that the delegate was not satisfied of the veracity of the claims in circumstances in which the plaintiff had failed to attend for an interview. 

On 20 June 2014, the plaintiff applied to the Refugee Review Tribunal to review the delegate’s decision.  On 4 May 2015, the plaintiff appeared before the Tribunal and gave evidence.  On 14 May 2015, the Tribunal affirmed the delegate’s decision.  The Tribunal found that there were significant discrepancies in the plaintiff’s account of the incident on 15 November 2013.  The plaintiff sought to explain these discrepancies by saying that she had completed her protection application in a hurry.  The Tribunal did not consider that this provided a satisfactory explanation for why the plaintiff should give a different account of material matters in that application.  The Tribunal did not consider that the effect of any trauma or nervousness provided a satisfactory explanation for the inconsistencies that it identified. 

The Tribunal did not place weight on letters which the plaintiff relied on in support of her application.  One letter was from a hospital and another letter was from a police station.  The dates on each letter appeared to have been altered.  The plaintiff said that the letters were in this condition when she received them.  She did not have the originals but only the scanned copies which had been sent from Fiji.  The Tribunal considered it noteworthy that neither document referred to the plaintiff’s de facto partner by name.  The plaintiff said that she had identified her de facto partner by name in her report to the police and to the staff at the hospital.

The Tribunal did not accept the plaintiff’s claims as credible.  It did not accept that were the plaintiff to return to Fiji she would be subject to domestic violence or any other kind of harm on the basis of the claims made in her application.  The Tribunal was not satisfied that the plaintiff had a well‑founded fear of persecution in Fiji.  For the same reasons, the Tribunal found when addressing the complementary protection criterion that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the plaintiff being removed from Australia to Fiji she would suffer significant harm.

On 24 June 2015, the plaintiff sought ministerial intervention under section 417 of the Migration Act 1958 (Cth). By letter dated 13 January 2016, the plaintiff was notified that the Minister had personally considered her case and had determined not to intervene. On 27 January 2016, the plaintiff filed an application for an order to show cause claiming prohibition to prevent the Minister from taking any steps consequent upon the Tribunal’s decision, certiorari to quash the decision and mandamus directed to the Tribunal to determine the review according to law. An order dispensing with the time limit in which to commence the proceedings was also claimed.

The successor to the Refugee Review Tribunal, the Administrative Appeals Tribunal, is the party against whom the relief is sought.  The Administrative Appeals Tribunal has filed a submitting appearance. 

The plaintiff appears unrepresented. Her claims for relief are advanced on three grounds: first, that the Tribunal’s decision is legally unreasonable; secondly, that the Tribunal denied her procedural fairness; and, thirdly, that the Tribunal misconstrued and misapplied the complementary protection criterion in section 36(2)(aa) of the Migration Act.

The plaintiff has not taken any step in the proceedings since filing her application and supporting affidavit. She has not filed a summons for directions and outline of submissions as required under Part 25 of the High Court Rules 2004 (Cth). In her affidavit, the plaintiff states that she was unaware that it was open to her to challenge the Tribunal’s decision in the Federal Circuit Court and that she had been advised to seek ministerial intervention. She also states that at this time she was in a very difficult situation in that she had just had a miscarriage and she was very depressed and was experiencing psychological and mental health issues.

As foreshadowed in the written submissions filed on the Minister’s behalf on 1 September 2016, the Minister opposes an order extending time under section 486A(2) of the Migration Act.  The Minister points out that the application was filed more than seven months after the Tribunal’s decision and that the plaintiff has not adduced any evidence in support of her claim to have suffered a miscarriage and mental health difficulties.  In these respects, the Minister observes that the plaintiff did not refer to these circumstances in support of her application for ministerial intervention. 

Under the High Court Rules, an application for mandamus is to be made within two months of the date of the decision. The Rules contemplate that in special circumstances further time may be allowed. This is in addition to the general power to enlarge time whether before or after the expiration of the time fixed for which rule 4.02 provides.

Section 486A of the Migration Act requires an application for a remedy to be granted in the exercise of the court’s original jurisdiction in relation to a migration decision to be made within 35 days of the date of the decision.  The Court may, by order, extend that period if it is satisfied that it is necessary in the interests of the administration of justice to make the order. 

The principal focus of the Minister’s submission that it is not in the interests of the administration of justice to extend time is the contention that the grounds in the application do not disclose any arguable basis of successful challenge.  I accept the Minister’s submission that upon a fair reading of the Tribunal’s decision it is plain that the plaintiff’s unparticularised assertion of legal unreasonableness must fail[1]. 

[1] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

The plaintiff’s second ground, the claimed denial of procedural fairness, is also unparticularised. The Tribunal considered whether the plaintiff came within the criteria for the grant of a protection visa as a refugee, or because there are substantial grounds for believing that as a necessary and foreseeable consequence of her removal to Fiji there is a real risk that she will suffer significant harm. In circumstances in which the Tribunal rejected the entirety of the plaintiff’s claims, it found that neither the refugee criterion nor the complementary protection criterion was established. The Tribunal reached this view, having heard the plaintiff’s evidence and her arguments in support of the grant of the protection visa. The plaintiff does not assert, and there is nothing in the Tribunal’s reasons to suggest, that the decision was based on information that would enliven the obligation under section 424A of the Migration Act.  I accept the Minister’s submission that the plaintiff’s assertion of denial of procedural fairness has no prospect of success.

The assertion that the Tribunal misconstrued and misapplied the complementary protection criterion is also unparticularised.  The Tribunal found that the plaintiff would not suffer significant harm as a necessary and foreseeable consequence of being removed to Fiji.  That finding was open.  The Tribunal correctly stated the criterion in the terms of the statute. 

I consider that none of the grounds for the relief claimed in the application raises an arguable basis for a successful challenge to the Tribunal’s decision. 

The plaintiff was notified of the Tribunal’s decision by letter dated 15 May 2015, to which was attached a copy of the Tribunal’s reasons and a document titled “Information About Tribunal Decisions”.  The latter contains advice, both with respect to the Minister’s intervention power and judicial review of the Tribunal’s decisions before the Federal Circuit Court of Australia.  The plaintiff’s acceptance of advice to seek the Minister’s personal intervention rather than to seek judicial review does not provide an adequate explanation for the delay[2]. 

[2] Plaintiff M90/2009 v Minister for Immigration and Citizenship & Anor [2009] HCATrans 279 per Crennan J; SZUSH v Minister for Immigration and Border Protection [2016] HCATrans 112 per Nettle J.

I am not satisfied that it is necessary in the interests of the administration of justice to make an order extending the 35‑day period under section 486A(2) of the Migration Act.  It follows that the application for an order to show cause must be dismissed.  For these reasons there will be the following order:  the application for an order to show cause is dismissed with costs.

AT 10.39 AM THE MATTER WAS CONCLUDED