Plaintiff S42 of 2016 v Minister for Immigration and Border Protection

[2016] HCATrans 46

[2016] HCATrans 046

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S42 of 2016

B e t w e e n -

PLAINTIFF S42 OF 2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Application for order to show cause

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON MONDAY, 7 MARCH 2016, AT 10.04 AM

Copyright in the High Court of Australia

HIS HONOUR:   Is the plaintiff represented?

MR S.R. TULLY:   Yes, your Honour, I appear on behalf of the plaintiff pro bono - S42 in this matter.  (instructed by the plaintiff)

MR B.D. KAPLAN:   If the Court pleases, I appear for the defendant.  (instructed by Clayton Utz Lawyers)

HIS HONOUR:   Thank you.  Mr Tully, I take it you have been fairly recently briefed in this matter.

MR TULLY:   That is correct, your Honour.  The substance of the materials I have only seen several hours ago.  I understand they were prepared by a colleague of the plaintiff within immigration detention.  I understand they were delivered to the Registry – I cannot clarify exactly what time that was but my learned friend has just received a copy and he has not had the opportunity to consider – particularly, in relation to the outline of submissions.

HIS HONOUR:   I see, yes. 

MR TULLY:   If it may help, your Honour, in terms of the detail with respect to some of those submissions it appears that they were drafted on the basis of an application that was prepared by another lawyer and that is the particular perspective that has been taken with respect to the purchase of this particular case.  I could make some comments in relation to that application or, depending on my learned friend’s particular point of view, whether or not we wish to proceed today.

HIS HONOUR:   First of all, your client is due to be removed from Australia, I think, this evening.  Is that right?

MR TULLY:   My understanding was tomorrow morning, in the event that he is unsuccessful here today.

HIS HONOUR:   Mr Kaplan, can you just confirm what the arrangements are?

MR KAPLAN:   Your Honour, as indicated in the defendant’s written submissions, which I understand were provided to your Honour either over the weekend or today, the Minister’s understanding is that the plaintiff is scheduled to be removed from Australia at 9.55 pm tomorrow.

HIS HONOUR:   Tomorrow, I see, all right.  Yes, what is your attitude to the application for interlocutory relief?

MR KAPLAN:   Your Honour, that application is opposed – primarily on the basis that no prima facie case has been demonstrated by the plaintiff.

HIS HONOUR:   You would also oppose the extension of time application, I take it.

MR KAPLAN:   Yes, your Honour.

HIS HONOUR:   Yes.  I will just have a look at these submissions which have been filed for the plaintiff, if you would just take a seat.  Yes, Mr Tully, I suppose the major issue for you is that the application is in relation to a decision which was made in October 2013.  So you are more than two years out of time.  There is, of course, provision for extension of time under 486A(2) of the Migration Act.  But there does not seem to be any explanation of the reason for delay.  As I understand it, there was a non‑attendance by the plaintiff before the relevant delegate for a scheduled interview when the decision was made.  Is that correct?

MR TULLY:   That is correct, your Honour, yes.

HIS HONOUR:   Yes.  The plaintiff, I think, in an affidavit which has just been filed, blames his then migration agent representative for that – that he was given certain advice.

MR TULLY:   That is correct, your Honour.

HIS HONOUR:   Yes.  The difficulty is that in the request for ministerial intervention by – Mr Hornery, I think, is the migration agent – the explanation for the non‑compliance – his non‑attendance is his mental state and the failure to face up to the reality of what was going on.  I quote his reason for – this was the letter of 22 January 2016 from his migration agent, Mr Hornery, which sought consideration of the exercise of the Minister’s powers under 48B.  In that letter it was said that the plaintiff’s reasons for not attending an interview with the delegate in 2013 and for not making application to the Refugee Review Tribunal was:

one of mental and emotional instability.  He was simply afraid to face the reality of his situation.  There was never any intention of defrauding the Australian Government or its people.

So that is the most recent statement of the reasons for his non‑attendance.  What I can do, I suppose, subject to what we might hear from Mr Kaplan, is, given the urgency of the matter, to give you some time just to look at the

papers and perhaps get more familiar with them and perhaps bring you back later on today.

MR TULLY:   That would be helpful, your Honour, certainly. With reference to those materials that your Honour has helpfully referred me to, I am not familiar with that particular letter at this stage. Your Honour’s characterisation of the circumstances, with respect to that, yes, the challenge for the applicant in this particular case is demonstrating exceptional circumstances for the grant for the extension of time since October 2013 and the second challenge for the applicant in this case is establishing an arguable case for jurisdictional error.

HIS HONOUR:    Well, that is right and both of those, I think, frankly on the materials before me, you face considerable difficulties, but in any event I do not want to pre‑empt it. You might have an opportunity to look at those, but I will hear from Mr Kaplan if there are any – I was thinking in terms of bringing you back this afternoon at, say, 3 o’clock.  Mr Kaplan?

MR KAPLAN:   Your Honour, I have to obtain some instructions with respect to that brief adjournment but I should just say for my part I was given by my learned friend shortly prior to the commencement of this morning’s proceedings not only an outline of submissions with respect to the interlocutory application but also an affidavit sworn by a Mr Hossain, which is lengthy – it runs to about 60 pages.  It is not clear to me whether the plaintiff’s assertion, to which your Honour referred earlier, about the former migration agent forbidding the applicant to attend the interview before the delegate is contained somewhere in that affidavit.  If so, I would need to consider that material, your Honour.

HIS HONOUR:   That affidavit seems to have, so far as I can tell – all I have at the moment is the affidavit.  I have not gone through the exhibits, which are voluminous.  The affidavit itself is only four paragraphs but it relates to a decision of the Migration Agents Registration Authority regarding the cancellation of the former agent’s registration as a migration agent and then the disciplinary record of the Office of the Legal Services Commissioner in relation to that same person’s suspension of his practicing certificate as a solicitor.  Now, whether that has anything at all to say about - it may be just directed to what happened to the previous migration agent. We just do not know at the moment until we have looked at the exhibits.

MR KAPLAN:   Yes, your Honour.

HIS HONOUR:   Obviously, Mr Tully is not in a position because he has not seen it himself, I suspect.

MR KAPLAN:   Would your Honour excuse me for a moment while I obtain some instructions with respect to your Honour’s foreshadowed adjournment of the proceedings?

HIS HONOUR:   Yes.  There may be some practical implications in terms of security arrangements and so forth.

MR KAPLAN:   Yes.  Your Honour, the defendant would not oppose the proceedings being stood over to 3.00 pm today.

HIS HONOUR:   Yes, all right.  Well, I will have to confirm that – I am sure the video link will be available; I am told it will be.  So, Mr Tully, we will stand the matter down until 3.00 pm this afternoon, and then I will hear from you as to the threshold issues really, which go to the question of interim relief obviously but also ultimately to the merits of the application itself, I suppose.

MR TULLY:   Thank you very much, your Honour.

HIS HONOUR:   Yes, all right.  I will adjourn the Court briefly now so that the next matter can then be put on.

AT 10.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 2.59 PM:

HIS HONOUR:   Yes, Mr Tully.

MR TULLY:   Thank you, your Honour, and thank you also for the opportunity of an adjournment and also to review the papers.  Your Honour, I was just discussing with my friend in relation to some evidence that I propose to rely upon.  Now, this particular material my friend has not had the opportunity to have a look at.  I am just marking up the identity of those particular paragraphs and the date for him.  I have sent those through to the High Court Registry down in Canberra.  I am not sure whether you have had the opportunity to receive them at this stage, but there are only ‑ ‑ ‑

HIS HONOUR:   Well, what I have, Mr Tully, is some extracts from a statutory declaration.

MR TULLY:   That is correct.

HIS HONOUR:   Page 1 of 22, page 11 of 22, and then a copy of a letter – or part of a letter I should say – from Mr Hornery to the Minister, dated 14 January, and then a clinical record in relation to the plaintiff, a one sheet clinical record.

MR TULLY:   That is correct, your Honour, yes.  They are a limited number of extracts.  I only propose to rely on those documents in very narrow respects, one paragraph in the statutory declaration, two paragraphs in the letter from Mr Allan Hornery and one in relation to the clinical records and the clinical records document.

HIS HONOUR:   Yes, all right.  Now, where was the statutory declaration made and for what purpose?

MR TULLY:   Yes, your Honour.  The statutory declaration was part of a ministerial intervention request made on 12 November 2015.

HIS HONOUR:   Okay.  Yes.

MR TULLY:   The letter from Mr Allan Hornery, dated 14 January 2016, was also part of a ministerial intervention request.

HIS HONOUR:   A later one, yes.

MR TULLY:   Yes, and the clinical records, as I understand it, were part of the medical records that were also part of the ministerial intervention request, dated 14 January 2016.

HIS HONOUR:   Yes, all right.  Now, Mr Kaplan, do you have any difficulty with the reference to those materials?

MR KAPLAN:   Well, your Honour, I have only just been given this material.  It was not foreshadowed earlier by my learned friend but only a couple of minutes prior to your Honour coming onto the Bench.  I can read the material while my learned friend is making his submissions.

HIS HONOUR:   Why do I not just give you a few minutes to look at it now before he gets up and then if there is a problem emerging from his submissions you can raise that with me?

MR KAPLAN:   If the Court pleases.

HIS HONOUR:   Yes, so just take a seat and have a look at it now.  Ready now?

MR KAPLAN:   Your Honour, I have read those parts of the documents upon which the plaintiff proposes to rely and there is nothing arising from those parts with which my client takes issue.

HIS HONOUR:   Yes, well, I presume the relevance of them will be explained in due course so we will hear what Mr Tully has to say.

MR KAPLAN:   Certainly.

HIS HONOUR:   Yes, Mr Tully.

MR TULLY:   Thank you, your Honour.

HIS HONOUR:   Now, Mr Tully, you have got – before me at the moment is your client’s application and summons and with the application and summons was an affidavit sworn by your client of 18 February, and then there is an affidavit which – I am not sure whether it has been filed ‑ by one Seikh Hossain and that is sworn on 6 March 2016.  Are you wanting to refer to each of those affidavits?

MR TULLY:   Yes, I am, your Honour.  In terms of whether or not they have been properly filed and served, I am in a little bit of difficulty in terms of answering those questions.  Much of this paperwork has been prepared by Seikh who has prepared that second affidavit.

HIS HONOUR:   Yes.  Well, the first affidavit has been filed.  That was filed on 19 February.  I will read the second affidavit on the basis of your undertaking to have it filed.

MR TULLY:   Very well, your Honour.  Yes.

HIS HONOUR:   Well, I suppose it has probably been lodged, in any event, but a copy should be filed with the Registry.  Now, you are seeking really at this stage, as I understand it, interlocutory relief, and related to that a time extension.

MR TULLY:   That is correct, your Honour, yes.  Essentially, your Honour, if I could address the second question first in terms of the time extension, if that would be convenient for your Honour?

HIS HONOUR:   Yes.

MR TULLY:   We would be certainly seeking the Court’s leave with respect to the extension of time.  In terms of – certainly, we acknowledge that the application is well beyond the time limits and it would require the exercise of the Court’s discretion.  In relation to that, there are essentially two grounds on which the applicant points to in relation to whether or not time should be granted in this particular case.  The first one relates to the second chances in which his protection visa application was refused and the invitation to attend an interview before the Department, with respect of his protection visa application and the role of Mr Sam Issa, the registered migration agent, with his application.

And the second aspect relates to the plaintiff’s particular state of mind, his mental health at that time.  If I could take your Honour firstly to the affidavit of the plaintiff, and if I could take your Honour’s attention – this is the outline of submissions, rather – forgive me, your Honour – the plaintiff’s outline of submissions regarding the interlocutory application.

HIS HONOUR:   Yes.

MR TULLY:   It is described as an outline of submission but should have been properly put in as an affidavit but, nevertheless, at paragraph 4 there is an indication by the plaintiff that he was effectively discouraged from attending the interview with the Department on the basis of advice provided by his then migration agent, Mr Issa; in particular, if he attended the interview by himself he would be picked up, detained and deported back to his home country.

HIS HONOUR:   Yes.

MR TULLY:   The next detail is drawn from – in terms of explaining the applicant’s delay, particularly his inactivity during the period when he was an unlawful citizen.  If I could take your Honour to the plaintiff’s own words ‑ and this is found within the statutory declaration that your Honour has just referred to as part of the ministerial intervention request on 12 November 2015, in particular paragraph 174 – in terms of what was the plaintiff’s reason for why he did not approach the Department at that stage during the period when he was an unlawful citizen.

That particular perspective in relation to his reluctance to approach the authorities at that time is picked up in the further document from Mr Allan Hornery, dated 14 January 2016, again forming part of the ministerial intervention request.  In particular, on the second page, the second and third paragraphs, the paragraph beginning with “…..did not attend the scheduled initial interview” and the further paragraph “He also did not make representation to the RRT”.

HIS HONOUR:   Yes.

MR TULLY:   Effectively, the position there is, from the plaintiff’s perspective, given the history of his – in terms of the history of his particular migration applications with the Department, these are referred to within – before I get to that, your Honour, I might just take you to the affidavit of the plaintiff, filed 19 February 2016 and, in particular, your Honour, to paragraph 2 where effectively the plaintiff is saying Mr Issa was giving him false and misleading advice and information that resulted in the refusal of the application by the defendant.  Annexed to that particular affidavit is a copy of that decision.

If one turns to that exhibit, exhibit YE1, this effectively annexes the departmental decision and, in particular, page – I am referring to the bottom right‑hand side of the page, some of those pages have two numbers, but the one of the further right ‑ ‑ ‑

HIS HONOUR:   Well, you are taking me to the decision‑maker’s references to his non‑attendance at the interview and the decision‑maker’s consequential inability to assess the credibility of his claims.

MR TULLY:   That is correct, your Honour, yes.  And two specific parts of that, but also in relation to the procedural history of the plaintiff’s application, the first one appearing on the top of page 10 in terms of the history of the applicant’s migration history and his unsuccessful attempts at applying for a particular visa in Australia and there is a range of applications made in different visa classes and also different ministerial applications.

But, in particular, your Honour, if I could take you to page 14 of that document and the second paragraph there.  Now, this is effectively – so page 14 of the annexure YE1 of the delegate’s decision, so it is headed “Is the fear well‑founded?” and the second paragraph there begins “On 14 September 2013 ‑ ‑ ‑

HIS HONOUR:   Yes.

MR TULLY:   ‑ ‑ ‑ a letter was sent to the applicant’s agent”.  Now, effectively that paragraph basically says, a letter was sent to Sam Issa, it is deemed to have been received after seven days.  He was advised that he should be attending a departmental interview.  It was mailed to an Australian address to the agent.  But the critical aspect there is the last sentence in that paragraph:

On 27 September 2013, the applicant’s Migration Agent notified the Department that he was no longer acting on behalf of the applicant.

An indication there that the agent was no longer acting on behalf of the applicant ‑ the plaintiff.  Nevertheless, the interview was scheduled for a later date on 11 October 2013, and then the delegate in that further paragraph is basically indicating, well, the plaintiff did not attend the interview for the reasons that are indicated in that decision record.  This has, on the plaintiff’s case, a number of significances.  If I could take your Honour then to the affidavit of Seikh Tanveer Hossain.

HIS HONOUR:   Well now, I have had a look at that and that exhibits essentially a record of a finding which had led to the cancellation of Mr Issa’s registration as a migration agent and his suspension from practice as a solicitor.

MR TULLY:   That is correct, your Honour, yes.

HIS HONOUR:   How do you rely on that?

MR TULLY:   Yes, certainly.  The last two decisions within that bundle, there are basically three decisions.  The first one is in relation to the OMARA one and the second one where Mr Issa attempts to challenge that particular decision.  Now, my particular reliance on the first decision there is in terms of the authorities’ consideration of Sam Issa’s conduct with respect to his dealings with clients in terms of supporting their particular finding that there was non‑compliance with the Code of Conduct for registered migration agents.  In particular, if I could take your Honour to paragraph 19 of that document, which appears on page 7, and the last sentence ‑ ‑ ‑

HIS HONOUR:   This being the decision record of ‑ ‑ ‑

MR TULLY:   The OMARA decision record, yes, the Office of the Migration Agents ‑ ‑ ‑

HIS HONOUR:   The Office of the Migration Agents Registration Authority, yes.

MR TULLY:   That is correct, your Honour, yes.  Effectively to provide your Honour with context, what I am saying out of this particular document is having a look at Mr Issa’s conduct in his dealings with his clients and also his communication with the Department.  This to some extent corroborates the applicant’s concerns in relation to what he claims Mr Issa failed to do in handling his particular protection visa application, in particular advising him of the importance of attending an interview.

The last sentence in paragraph 19, “The Agent also emphasised”, the sentence beginning there.  Effectively what that says is notwithstanding that Sam Issa may have acted on behalf of a particular applicant previously and his authority has now ceased is nevertheless still acting in giving instructions to the Department on false claims.  In other words, what I am seeking to draw out of that is Mr Issa not complying with his duties with respect to his client in terms of ‑ ‑ ‑

HIS HONOUR:   Well, paragraph 19 is about the agent’s submissions to the authority, is it not?

MR TULLY:   That is correct, yes.

HIS HONOUR:   Both sentences.

MR TULLY:   Yes, thank you, your Honour, yes.  In other words, there is some sort of disconnect between what his client’s instructions may be and what he may be portraying to the Department.  There are clearer indications further within this document, in particular the conclusions made under the reasons for decision at paragraph 102, and the sentence beginning:

Based on the Protection visa applications prepared by the Agent, it appears that the Agent either misled vulnerable Protection visa applicants into thinking that their visa applications would be successful or that both parties were aware that the claims lacked merit or that they were false.

Some suggestion there in terms of misleading the applicants, but also the last sentence of paragraph 103, the fourth line from the bottom:

it appears that the Agent continued his support of his clients and the lodgement of visa applications without questioning or raising concerns with his clients as to the genuineness of their claims ‑

Effectively, where this is going, your Honour, is to establish that there is an arguable case of jurisdictional error within the decision record made by the delegate. 

HIS HONOUR:   The delegate was quite right when he said that the applicant – the plaintiff did not turn up for interview.  There is no error there.

MR TULLY:   No.  I would agree with that, your Honour.  Yes, there is no error.

HIS HONOUR:   There is no complaint about how he used that or the effect of that on his ability to judge the plaintiff’s claims.

MR TULLY:   Yes, your Honour.  Just to step back a little bit.  The way in which this case has been put is effectively reliance on Wei.  I do not know if your Honour has had the opportunity to look at that, but that is the way this particular individual has put this case.  The facts of Wei are quite interesting and it could be considered to be reasonably analogous to the circumstances before us.  I would be happy to address your Honour on that particular issue.

HIS HONOUR:   Sorry, which?

MR TULLY:   I am sorry, your Honour.  This is Wei Wei v Minister forImmigration and Border Protection [2015] HCA 51.

HIS HONOUR:   Yes.  That was the failure of the university to provide particular information, was it not?

MR TULLY:   That is correct, your Honour, yes.  The failure of Macquarie University to basically keep a student’s records updated.  Non‑compliance with its particular duty resulted in the failure of a subsequent duty sufficient to give rise to jurisdictional error.  In other words, the way in which this case has been put is, effectively, the delegate’s satisfaction in this particular case, under section 65, has been formed by a process of fact finding derived from the process of an interview that should have occurred which is tainted by non‑compliance of a third party with an imperative statutory duty.  In other words, what the plaintiff is trying to do in this case is analogise that particular principle and apply it to the circumstances of his particular case.

HIS HONOUR:   And the statutory duty of the agent here was?

MR TULLY:   Yes, your Honour ‑ ‑ ‑

HIS HONOUR:   It has to be a statutory duty breached by the agent’s alleged warning that if the plaintiff went to an interview by himself, they would pick him up, put him on a plane and deport him to Lebanon. 

MR TULLY: Yes, your Honour. If the duty was put in those terms, then I would concede that it would be difficult to find a statutory duty along those terms. The best that the plaintiff can do would be to point – and what is done in this case is to point to section 314(2) of the Migration Act which effectively requires “A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct”.

HIS HONOUR:   Section 314?

MR TULLY:   Subsection (2). 

HIS HONOUR:   There is some reference to various provisions of the Code of Conduct, I think, in the reasons of the authority.  Is there any relevant provision to which you would draw my attention there?

MR TULLY:   Yes, there are a number of general sort of Code of Conduct provisions in terms of the importance of the agent acting with fairness, with integrity, something along those nature.  The particular rule of the Code that I have in mind is not presented there within the submissions but I am happy to just describe it and leave it there.  But, nevertheless, there is no particular Code that I can take your Honour to – no particular relevant Code I could take your Honour to within the delegate’s decision.  So, if I may be permitted to refer to a rule 2.19 of the Code?

HIS HONOUR:   Yes.

MR TULLY:   Rule 2.19 of the Code effectively provides:

a duty to provide sufficient relevant information to the Department to allow a full assessment of all the facts against the relevant criteria.

Now, having reviewed the Code, that is probably the key provision, I would suggest to your Honour, that might arise in these circumstances other than the general obligation of an agent to act honestly and with integrity in their dealings.

HIS HONOUR:   That rule appears at page 31, I think, of the reasons, paragraph 155.

MR TULLY:   Thank you, your Honour, yes, it does.  To relate it back to the particular context of the decision, effectively there are a number of paragraphs here which basically indicate that Mr Issa’s practice was to basically put in protection visa applications but to advise applicants not to ‑ I generalise, but to advise applicants not to attend interviews and to see what the Department would do on the basis of the limited information that is before them.  So that is how that particular clause 2.19 of the Code becomes relevant.

HIS HONOUR:   Incidentally, the applicant’s bridging visa I think expired on 19 November 2013.  That is the bridging visa which he had been granted pending his application for a protection visa, and he was not taken into immigration detention until 19 August 2015, so it is nearly two years later.  So what is happening in the meantime?

MR TULLY:   Yes.

HIS HONOUR:   Bear in mind that I have got to see some explanation for a delay of more than – or nearly two years, I am sorry.

MR TULLY:   Yes, your Honour, the only thing I could point to with respect – well, as well as the detail about Mr Issa in terms of that sort of material, effectively the plaintiff’s submission would be this, that given the way in which he has been treated by Mr Issa and his discouragement to attend the Department with respect to client interviews, that has effectively discouraged him from approaching the immigration authorities with respect to regularising his immigration status.

HIS HONOUR:   We are not talking here about an approach to immigration authorities.  We are talking here about an application for review to this Court.  Now, of course, I know you say he did not make application to the Refugee Review Tribunal because he was infected by the same sort of considerations that deterred him from turning up for interview.

MR TULLY:   Yes.

HIS HONOUR:   But an approach to this Court, I have to have a reason for the delay in making the application with which I am faced.

MR TULLY:   Yes, your Honour.  There are only two real points I can point to within the materials before us.  The first one would be based on the chronology that the plaintiff also seeks to rely on.  This was the third document headed “The Department of Immigration and Border Protection Minute”.

HIS HONOUR:   Where is that?

MR TULLY:   This was one of the recent documents that was provided by Seikh this morning.  It was only a short three‑page document and it came with the affidavit.  It is headed “For Official Use Only Department of Immigration and Border Protection Minute”.

HIS HONOUR:   Just a minute, just bear with me a moment.

MR TULLY:   No problem, your Honour, thank you.

HIS HONOUR:   How was that document provided?

MR TULLY:   I think it was emailed to the Court either late yesterday or earlier this morning.  It was handed to my friend earlier this morning as well.

HIS HONOUR:   Okay.  I think we have to get it.  I do not have it with me at the moment but my associate is just procuring it.  Anyway, go ahead and refer to it, Mr Tully.

MR TULLY:   It may be sufficient for me to simply rely on my learned friend’s chronology of events.

HIS HONOUR:   Yes, I have that.

MR TULLY:   Thank you, your Honour.  Effectively, what I am saying there is there has been a belated attempt by the plaintiff to seek judicial relief.  It has only commenced in the most recent time in 2015 as a result of having obtained proper immigration assistance.  If one has regard to my learned friend’s chronology, that is indicated in terms of his attempts to seek judicial review and the outcomes have been fairly unsurprising, given the nature of the circumstances in front of him, for instance, the Tribunal rejecting his claim on the basis of no jurisdiction and also his application being rejected before the Federal Circuit Court.

HIS HONOUR:   I am just looking at what has happened.  You have got November 2013 his bridging visa ceases, so he becomes an unlawful non‑citizen.  Then the next item is August 2015 when he is detained under section 189, and then he goes off to the AAT which says it does not have jurisdiction, and then he tries for a medical treatment visa, and then he signs a request for removal form.

MR TULLY:   Yes, your Honour, I note that.

HIS HONOUR:   All right.  Then the next thing, his ministerial intervention request on 12 November; again, a request for removal form signed on 4 January. 

MR TULLY:   Yes, but I certainly cannot shy away from those two particular facts in terms of the plaintiff signing those removal forms.  The other thing I certainly cannot shy from is the applicant’s efforts to obtain judicial relief and to seek judicial solutions has only really been prompted as a result of being put into detention in 2015.

HIS HONOUR:   That happened – the first judicial review application was 3 February and that was in relation to the presumably non‑referral of the request for intervention under 48B was it?

MR TULLY:   I am unable to clarify that particular point, your Honour.  My learned friend instructs me that is the case.

HIS HONOUR:   Then the Federal Circuit Court dismisses that on the following – it must have been an urgent application for interlocutory relief by the sounds of it.

MR TULLY:   That may well have been the case, your Honour, yes.

HIS HONOUR:   Then, the next thing happens he applies to this Court but going back to the decision of October 2013.

MR TULLY:   That is correct, your Honour, yes.

HIS HONOUR:   All right.

MR TULLY:   The second part of this particular argument in relation to providing an explanation for the delay, and admittedly as weak as it is, effectively, I can only take your Honour to a number of limited references with respect to the plaintiff’s mental state and mental health.  Certainly some of that evidence is more evident more recently but, in my submission, those sorts of conditions, those sorts of issues may be a part explanation for the reason for the plaintiff’s delay.

There is only two short documents, if I could take your Honour to.  The first would be the document by Allan Hornery attached to the Minister’s chronology of events.  This is the document dated 22 January 2016.  At the bottom of the page is a – the second last paragraph is a request by the applicant to have – for the decision‑maker to have reference to particular medical records with respect to his emotional and mental state.  This is as a result of the decision with respect to the protection visa ‑ and a request or giving his permission to the Minister to access his medical records.  Then, if I could take your Honour to page 4 of 4 of that document, in response to the questions:

Why did the applicant not attend his initial interview with DIBP?  Why did he not make application to the Refugee Review Tribunal?  Why did he remain unlawful and non‑compliant for so long?

His reason is one of mental and emotional instability.

My central submission is the reason why – one of the reasons for his delay was his particular mental condition and emotional stability.  The evidence with respect to that admittedly, your Honour, is fairly thin but in terms of that material, I could only take your Honour to – this is one of the earlier diagnoses of the plaintiff.  This is the one‑page document I just communicated to you this afternoon.  This was the medical records that are attached to the second ministerial intervention on 14 January 2016.  The date of this particular medical record is 20 August 2015 and if I could take your Honour’s attention to the diagnosis made for the plaintiff, the impression of “anxiety, panic, sx” – I am unclear what sx may mean – “situational crisis with suicidal ideation mod risk”.  Effectively, your Honour, some evidence, albeit limited, in relation to the applicant’s particular mental state certainly in August 2015 such as the evidence as it is. 

HIS HONOUR:   Yes.

MR TULLY:   Your Honour, I have only got three other issues to address really.  The first one would be to take your Honour’s attention to the particular statutory provisions that the plaintiff says are relevant to your Honour’s consideration with respect to the assessment against Wei.

HIS HONOUR:   Yes.

MR TULLY:   The difficulty that confronts the plaintiff in this particular case with respect to relying on Wei is essentially establishing the existence of two duties and how the failure to perform one particularly imperative statutory duty has a flow‑on consequence with respect to the responsibilities of someone else who also is subject to statutory duties. 

In this particular case, I have referred your Honour to section 314(2) with respect to the obligation that I say Mr Sam Issa was subject to in terms of conducting himself in compliance with the Code of Conduct. The other particular provisions that were relevant to the delegate, the key particular provision taking the approach that was suggested by Wei would be section 65 in terms of its state of satisfaction and whether or not the applicant would satisfy the criteria for the grant of a protection visa. 

If I was to be more particular in terms of how it related to the statutory obligations of the delegate, in terms of the particular process of conducting the interview itself, I would refer your Honour to sections 56, 58 and 59 of the Migration Act.  They do provide some assistance, albeit limited assistance.  Effectively, what that framework sets up is that the Minister may get relevant information, but if it does get that information, then it must have regard to that information, and subclause (2), inviting the applicant:

to give additional information in a specified way –

That may be under section 58 to attend at an interview. Section 59 goes on to say –

An applicant must make every reasonable effort to be available for, and attend, an interview.

I suppose the difficulty in relying on particularly section 56, in terms of establishing an obligation for the delegate in this case, is to what information the delegate is obliged to have regard to, sufficient to say that it has not performed its particular duty. I have taken your Honour to the procedural history in terms of the dispatch of the invitation, plus also the information that has been received by Sam Issa that he is no longer acting for this particular plaintiff. That is all I can point to ‑ ‑ ‑

HIS HONOUR:   The situation in – I am just looking back to SZFDE, where the migration agent’s advice to the applicant for review in that case before the RRT was not to go because I think the agent said he would be applying to the Minister directly under 417, if I recall correctly, and then that interfered directly with the RRT’s review function under the Migration Act, it had been properly characterised as a species of third party fraud.  I am not sure that you have that kind of intersection here, do you?

MR TULLY:   Yes, your Honour.  In terms of that, I am a little bit stuck in terms of when I originally became familiar with the facts.  SZFDE certainly did strike me as a more convincing basis upon which to make a particular judicial review application.  The difficulty I have is the application, on which it is put, is framed in terms of non‑compliance with section 314 and, as my friend has pointed out, a breach of natural justice.  I have not sought leave to amend the particular application, but I would agree with your Honour that in terms of the natural justice ground that is put before your Honour, stated as it is, my understanding – that is, put as a breach in terms of failure to be advised to attend that interview, in terms of the plaintiff’s non‑attendance at the delegate’s interview ‑ there are a number of questions raised, and based on the evidence before us it is a little bit difficult to determine whether or not, with respect to this particular plaintiff, there was fraud in this case or negligent conduct or just improper advice or poor advice.

HIS HONOUR:   It may be that you can run an argument that this advice, if made out, as it were, informs or affects the discharge of the statutory function of the delegate.  I do not express any view on that.  The difficulty that remains is that that was back in 2013.  The problem is we have a delay in taking any action – at a time when he has been going through a whole array of applications of various kinds – to seek judicial review of that decision, which only now he seeks.  I mean, if it had come about, say, three or four months later and he had got out of the shadow, as it were, of the migration agent, then that might be a different kettle of fish.  When did he cease his affiliation with the migration agent?  Do we know that?  Or when did the migration agent cease to act?

MR TULLY:   The evidence is a little bit limited.  The only thing I can take your Honour to is that paragraph within the delegate’s decision record in terms of Mr Issa formally notifying the Parliament that he had ceased to act.

HIS HONOUR:   I see.

MR TULLY:   In my discussions with the plaintiff, however ‑ this is not within the evidence that is before the Court ‑ is that he was never in fact informed that Sam Issa was ceasing to act for him, but there is no evidence to that effect before your Honour.

HIS HONOUR:   Thank you.

MR TULLY:   That leaves me then with just two large issues to address in terms of the prima facie case and in terms of the balance of convenience, so turning then to the injunctive relief that also forms part of the application.  Unless your Honour has any further questions in relation to ‑ ‑ ‑

HIS HONOUR:   No.

MR TULLY:   Thank you, your Honour.  With respect to the prima facie case, effectively I am limited to the submissions I have made before with respect to establishing an arguable base of jurisdictional error by reference to Wei and given the nature of the evidence before you with respect to the very limited evidence that is provided by the plaintiff in his affidavits and outline of submissions, plus also documents in relation to the non‑compliance by Mr Issa with the Code of Conduct.

If your Honour is against me with respect to an arguable case of jurisdictional error, then the prima facie case element has not been satisfied.  With respect to the balance of convenience favours the grant of relief, there are only limited points I can make with respect to that.  I can only say that, with respect to any potential prejudice to the Minister, that would be fairly limited.  The plaintiff would continue to remain in detention.  In my submission, there would not be any convenience to the Minister were the relief to be granted.

HIS HONOUR:   The plaintiff is currently due to be removed ‑ tomorrow, is it?

MR TULLY:   That is correct, your Honour.  One of the difficulties ‑ ‑ ‑

HIS HONOUR:   There was a previous attempt to remove him, I think, which was aborted in the light of allegations of assault and so forth against him.

MR TULLY:   That is right, and that is what I was about to turn to.  This was referred to in the affidavit, filed by the plaintiff, of 19 February 2016, paragraphs 2 and 3.  Paragraph 2 talks about an allegation of assault by the escorting officers and the matter of substance currently subject to investigation by the AFP.

The second point appears at paragraph 3 just in relation to the injuries that he claims to have experienced as a result of that, and the injuries the result of paragraph 2 were dealt with at Liverpool Hospital.  There does appear to be some sort of ongoing investigation with respect to the plaintiff’s circumstances within Australia.

With respect to one final point, your Honour.  My friend has referred your Honour to Plaintiff M196 within his written submissions. I would say in terms of analogising that particular case with this one, certainly not as to the outcome but as to the particular consideration in that case, the relevant consideration or the relevant legal question arising for the purposes of the substantive proceedings on this case would be with respect to the interpretation of section 314(2) and interaction with primarily the statutory provisions under the Migration Act but also relevant provisions under the Code of Conduct.  And, in that sense, injunctive relief would preserve the subject matter of those substantial proceedings in terms of overstating the nature of that particular obligation and the consequences of its breach.

HIS HONOUR:   Who promulgates the Code of Conduct, by the way, is that done by the registration authority?

MR TULLY:   I believe it is, your Honour, unless I am corrected by my friend, that is my understanding.

HIS HONOUR:   Yes, thank you, Mr Tully.  Is there anything further?

MR TULLY:   No, that concludes my submissions.  Thank you, your Honour.

HIS HONOUR:   All right.  Yes, Mr Kaplan.

MR KAPLAN:   If the Court pleases, may I address your Honour first on the plaintiff’s application for interlocutory relief?  There is, obviously, some overlap between the applications in terms of the matters that your Honour needs to consider.  We say, your Honour, that the plaintiff’s two grounds of review do not raise an arguable case for the grant of the judicial review remedies that he seeks. 

In the first ground of review, the plaintiff asserts that his former agent gave him false and misleading advice and information during the visa application process.  I will come to the Code of Conduct in a moment, your Honour, but in fairness to the plaintiff, may I just say a few words about fraud and the decision of this Court in SZFDE 232 CLR 189. An argument may well be made by the plaintiff that the former agent committed a fraud on my client’s Department, thereby stultifying the visa application process.

What we say in relation to that is that the evidence before your Honour to support that assertion is scant at best.  It has not been ‑ the allegation that is ‑ has not been distinctly made and clearly proved.  Following this Court’s judgment in SZFDE, Full Courts of the Federal Court have stressed that a moving party bears a heavy onus in demonstrating fraud, as your Honour would be aware, given the level of satisfaction required by Briginshaw.

If I might just give to your Honour two examples; the first is the case of SZLIX (2008) 245 ALR 501 at paragraph [33] and the second is the case of SZRUR (2008) 216 FCR 445 at paragraph [51] which is in the reasons for judgment of Chief Justice Allsop.

HIS HONOUR:   Well, I am not really concerned at the moment about whether such an allegation is established and the basis upon which it is established.  I suppose I am concerned with what allegation is raised on the material and whether that would disclose an arguable case down the track.

MR KAPLAN:   Well, your Honour, we say that it does not.  Does your Honour wish for me to turn to the Code of Conduct allegation?

HIS HONOUR:   Well, I think you need to indicate why ‑ I mean Mr Tully has suggested that the Code of Conduct might be construed in such a way that whether or not you call it fraud, what the agent is alleged to have told the plaintiff is a breach of the agent’s duties under the Code and, therefore, under section 314(2) and that somehow that interferes with the statutory function of the delegate in determining whether or not to grant a protection visa.

MR KAPLAN:   Yes.  What we say about that, your Honour, is that the evidentiary position before the Court is simply unclear and inconsistent.  The explanations given by the plaintiff for not attending the interview in, for example, the ministerial intervention request made on 22 January 2016, in his written submissions filed in this Court on 6 March 2016 – I withdraw that – dated 6 March 2016 – and in the 14 January 2016 letter from Father Hornery to the Minister, are inconsistent.

The last mentioned document, your Honour, makes vague assertions with respect to the plaintiff’s grief and the fact that nobody would have assisted him at the hearing.  Paragraph 174 of the statutory declaration which was provided to the Court today does not make entirely clear when the alleged statement was made by Mr Issa.  It is also not consistent, in the Minister’s submission, with paragraph 4 of the plaintiff’s submissions dated 6 March 2016.

So, the evidentiary position is simply not clear, in my submission.  The Minister would also add, your Honour, that there is a discord between paragraph 4 of the plaintiff’s submissions and paragraph 2 of the plaintiff’s affidavit which annexes the delegate’s decision.  The alleged statement made by Mr Issa, which is set out in the written submissions, is not contained in the plaintiff’s affidavit.  The plaintiff relies upon paragraph 2.19 of the Code but what has not been made clear, in my submission, is how the agent failed to provide sufficient relevant information to the Department which is what paragraph 2.19 of the Code of Conduct requires.

Also, your Honour, the reason for Mr Issa ceasing to act for the plaintiff is not clear either. So the Minister respectfully submits that, on the evidence before the Court, your Honour cannot be satisfied that, first, the alleged assertion set out in paragraph 4 of the plaintiff’s submissions was made. Second, even if it had been made, that paragraph 2.19 of the Code of Conduct had been breached. Third, that section 314(2) of the Migration Act had, thereby, been breached.  Even if the Code of Conduct had been breached in some way, your Honour, which would have resulted in a breach of section 314 of the Act, your Honour would still have to be satisfied that such breach vitiates the delegate’s decision.  We say that it cannot and that this Court’s judgment in Wei [2015] HCA 51 is not apposite to the present case.

Your Honour, there is a second ground of review.  The Minister submits, with respect to the second ground, that the plaintiff has not identified with specificity how it is that the delegate acted in a procedurally unfair manner.  There is, for example, no allegation made that the delegate breached section 57 of the Act which, your Honour knows, is the primary decision‑maker equivalent of sections 359A and 424A, nor is there any other assertion made that some other aspect of the code of procedure in Subdivision AB of Division 3 of Part 2 of the Act – which comprises sections 51A to 64 – was breached.  For those reasons, your Honour, the Minister submits that there is no prima facie case revealed by the material before your Honour.

Your Honour, as to the length of the delay, that is either two years and three months, or one year and 10 months, depending upon whether the focus is upon the time limit fixed by section 486A(1) of the Migration Act or rule 25.06.1 of the High Court Rules, the latter dealing with the time limit for the grant of certiorari. In either case, however, your Honour, the Minister submits that the delay is excessive.

The Minister relies upon Justice McHugh’s oft cited judgment in Ex parte Marks (2000) 75 ALJR 470. In particular, the Minister relies upon his Honour’s observations in paragraphs 13 and 16, that in all but very exceptional cases time ought not to be extended if the delay is longer than many months or a year, let alone two years as in the present case.

The Minister says that those principles are engaged in the present case, and they are engaged with particular force, having regard to the fact that the period between the delegate’s decision and the commencement of proceedings in this Court has been occupied, as your Honour is aware, by the plaintiff’s attempts to seek ministerial intervention under section 48B of the Migration Act.  Those requests were made recently, first in November 2015, secondly in January 2016.  We say that the making of such requests is not a satisfactory explanation for delay in approaching this Court, and single Justices of this Court have recognised this, your Honour, in those cases to which I referred in footnote 4 of my written submissions.

HIS HONOUR:   Now, the application for intervention under 48 – sorry, just bear with me for a moment.  So that was in each case, of course, a request for consideration of the grant of a protection visa?

MR KAPLAN:   That is so, your Honour. 

HIS HONOUR:   Yes, all right.

MR KAPLAN:   Your Honour, in any case, those ministerial intervention requests were made well after the expiry of the relevant time limits, and as your Honour has been advised, for most of the period of the delay, namely, from 20 November 2013 to 18 August 2015 the plaintiff was an unlawful non‑citizen.  He was placed in immigration detention on the following day, that is, on 19 August last year.  No steps since that date were taken to approach this Court during that period or for that matter, your Honour, in the period shortly after the AAT’s decision which was that it did not have jurisdiction to review my client’s delegate’s decision on 7 October 2015.

HIS HONOUR:   Now, do we know anything on the record about what was happening between 20 November 2013 and 19 August 2015?

MR KAPLAN:   Your Honour, I do not have any instructions with respect to that period.

HIS HONOUR:   In any event, the plaintiff was not in detention?

MR KAPLAN:   That is so, your Honour.  Your Honour, furthermore, the Minister submits that the reason given in paragraph 2 of his written submissions is not a satisfactory explanation for delay.  That is that it was only in December last year after this Court delivered judgment in Wei that he could only approach the Court, and I am paraphrasing when I say that.  As submitted earlier to your Honour, this Court’s judgment in Wei has no bearing on the delegate’s decision.

As to the plaintiff’s medical condition, the evidence before your Honour is scant.  The condition that the plaintiff asserts he had did not prevent him from seeking ministerial intervention on two occasions and, in my respectful submission, there is no reason given by the plaintiff as to why, notwithstanding those approaches, he could not approach this Court to seek judicial review of the delegate’s decision earlier than he did. 

Finally, your Honour, a further factor that the Minister submits your Honour ought to take into account in determining whether to enlarge time is that which Justice McHugh identified in paragraph 15 in Marks and that is that where a moving party seeks the issue of constitutional writs “the public interest requires that there be an end to litigation about the efficacy of such acts or decisions”, “of public bodies or officials”.  Now I just inquire, your Honour, as to whether your Honour requires me to make submissions with respect to the relief that is being sought by the plaintiff ‑ ‑ ‑

HIS HONOUR:   No, I have read your submissions.  You say that the relief is inapposite.

MR KAPLAN:   Yes, your Honour.  The prohibition is inapposite and that mandamus ‑ and perhaps this may be an oversight on the part of the plaintiff ‑ has not been sought.

HIS HONOUR:   Well, that could be easily cured, I think, if they were a problem.

MR KAPLAN:   Yes.

HIS HONOUR:   All right.  Thank you, Mr Kaplan.  Yes, Mr Tully, in reply.

MR TULLY:   Thank you, your Honour; just a number of quick points.  In terms of the nature of the evidence that is before your Honour and the way in which the application has been drafted, in particular the allegations that have been made within that application, with respect to those matters, they have been prepared by a non‑lawyer and so therefore if there is considered to be a lack of adequacy within the evidence or in terms of the way in which

they have been drafted, that would certainly be attributable to that particular factor.

Your Honour, I would urge your Honour to bear that consideration in mind, in terms of your assessment of the way in which the plaintiff’s case has been put to your Honour.  Nevertheless, there is, as I have sought to indicate, sufficient material, in my submission, thin as the evidence may be, in terms of establishing there is an arguable case of jurisdictional error within the nature of the application, consistent with the allegations that have been made within the particular application.

With respect to the proposition that my learned friend has put in respect of Marks, certainly the plaintiff does not cavil with the proposition where there is circumstances of excessive delay, that only exceptional cases should warrant the grant of additional time.  With respect to those matters, if your Honour is not satisfied that there are exceptional circumstances arising in this particular case, having regard to the history of the applicant’s dealings with Sam Issa but also his subsequent attempts in the terms that he describes it to obtain justice by the way in which he has done so, if your Honour is against me on that particular point in terms of exceptional cases, my submission would be that the length of time would not be excessive.

My learned friend has pointed to some discrepancies in relation to the dates that have being indicated; in other words, that depending on the nature of the relief that is sought the delay may be different depending on which particular rule is under consideration.  In my submission, having a look at the nature of that rule and the relief that is sought, an argument could be made that that particular period of time would not be considered excessive.  I draw your Honour’s attention to my friend’s submission, with respect, at paragraph 14 where an application for certiorari was only one year and 10 months outside of the time fixed by the particular rules.

Finally, your Honour, if there are any deficiencies with respect to the relief that is being sought by the plaintiff, there are opportunities to have those requests for relief cured and I would urge the Court to consider that particular possibility but I also appreciate the circumstances confronting your Honour and the way in which the application has been put to your Honour this morning and also the difficulties that my friend has had dealing with this case.  So, if there are no further questions, your Honour.

HIS HONOUR:   Yes, thank you, Mr Tully.  I will just adjourn briefly to consider what course I should take.

AT 4.03 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.25 PM:

HIS HONOUR:   On 19 February 2016, the plaintiff filed an application in this Court requiring the Minister for Immigration and Border Protection to show cause why a writ of prohibition or an injunction should not issue to restrain him from giving effect to a decision made on 11 October 2013 refusing the plaintiff’s application for a Protection (Class XA) visa. The plaintiff also seeks certiorari to quash the Minister’s decision. The plaintiff also filed a summons in the proceedings seeking an interim injunction restraining the Minister from removing him from Australia until the finalisation of his application for prohibition. Section 486A(1) of the Migration Act 1958 (Cth) provides that:

An application to the High Court for a remedy to be granted in exercise of the court’s original jurisdiction in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

Section 486A(2) provides:

The High Court may, by order, extend that 35 day period as the High Court considers appropriate if:

(a)an application for that order has been made in writing to the High Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)the High Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

The High Court Rules 2004 (Cth) also provide that any application for certiorari is to be made within a specified time. In this case, however, it is the application for prohibition and an injunction that invokes the Court’s jurisdiction under section 75(v) of the Constitution. In his application for an order to show cause the plaintiff also seeks an order that the time limit for the making of the application be extended to 19 February 2016, the date of its filing.

The grounds upon which the application is made are that the delegate’s decision was affected by a jurisdictional error and by breach of natural justice. The jurisdictional error is said to have arisen because the plaintiff’s migration agent warned him not to attend an interview with the Minister’s delegate in relation to his application for a protection visa and that in doing so the agent, who has since had his registration cancelled for a variety of reasons, breached the Code of Conduct prescribed for migration agents by regulations made pursuant to section 314(1) of the Migration Act and thereby breached his statutory duty under section 314(2) to conduct himself in accordance with the Code. That breach is said to have affected the delegate’s decision‑making functions under the Migration Act because as a consequence the plaintiff did not attend an interview.  The breach of natural justice alleged is not elaborated.

A matter of primary concern in this application is the very great delay that has occurred in bringing the application and the inadequate reasons given to explain that delay.  In an affidavit filed with the originating process and his summons for interlocutory relief the plaintiff says that on 4 February 2016 he was taken to the airport for deportation from Australia.  He claims to have been assaulted by the escorting officers and to have been taken to Liverpool Hospital until 9 February and thereafter detained in an isolation section at the Villawood Immigration Detention Centre.

He said that at the time of filing this application he was still being held in that centre and had not been informed of any deportation date.  His application and supporting material was served on the Minister by email on 20 February 2016.  He was notified on 1 March that he was to be removed from Australia to Lebanon tomorrow at 9.55 pm.

The plaintiff’s history relevant to this application has been set out in a chronology attached to submissions made by the Minister, which is not in dispute.  In short, the plaintiff arrived in Australia in May 2008, holding a student visa which expired in July 2009.  In June 2010, he lodged an application for a partner visa and was granted a bridging C visa while that application was considered.  His partner visa application was refused on 21 October 2010.  That refusal was affirmed by the Migration Review Tribunal on 5 November 2012.

The applicant then applied for a protection visa on 18 April 2013 and that was refused on 11 October 2013 by a delegate of the Minister.  It is that decision which is the subject of his originating process in this Court.  His bridging visa expired on 19 November 2013.  He then became an unlawful non‑citizen.  He was, however, not taken into immigration detention until 19 August 2015.  The record is silent as to what activities he undertook during that time but it appears not to be in dispute that he was at liberty during the period between 19 November 2013 and 19 August 2015.

He sought review of the refusal of his protection visa in the Administrative Appeals Tribunal which held on 7 October 2015 that it did not have jurisdiction. He then made an application, which was found to be invalid, for a medical treatment visa. On 15 October 2015, he signed a request for removal form. On 12 November 2015 he made a request for ministerial intervention under section 48B of the Migration Act which provides for non‑compellable consideration by the Minister of whether to permit a further application by an unlawful non‑citizen otherwise barred from making an application by section 48A on account of an earlier refusal.  A departmental officer determined on 4 January 2016 not to refer that request to the Minister.

On 22 January 2016, the plaintiff again applied for ministerial intervention under section 48B, a request forwarded to the Minister by a registered migration agent, Mr Hornery, who was not the migration agent representing the plaintiff at the time of his application for a protection visa. It was decided not to refer that request to the Minister on 1 February 2016. On 3 February the plaintiff applied to the Federal Circuit Court for an injunction and to seek review of the section 48B decision but that application was dismissed on 4 February. In an affidavit in his application to this Court the plaintiff said that:

During the time of my protection visa application my Migration Agent Mr. Issa gave me many false and misleading advice [sic] and information which resulted [in] the refusal of that application by the Defendant on 11 October 2013.

A copy of the notification of the decision of 11 October 2013 is exhibited to the affidavit.  The reasons for decision state, among other things, that the plaintiff failed to attend a scheduled interview; the delegate said he was not able to make a finding in relation to the credibility of the plaintiff’s claims for protection.  In particular, he was not able to accept that the plaintiff had a real chance of being subject to significant harm on account of his religious affiliation if returned to Lebanon.

The Minister has exhibited to his submissions in this case the letter dated 22 January from the plaintiff’s migration agent, Mr Hornery, seeking consideration of the exercise of the Minister’s powers under section 48B which I mentioned earlier. In that letter it was said that the plaintiff’s reasons for not attending an interview with the delegate in 2013 and for not making an application to the Refugee Review Tribunal was:

one of mental and emotional instability.  He was simply afraid to face the reality of his situation.  There was never any intention of defrauding the Australian Government or its people.

Counsel for the plaintiff referred to the plaintiff’s mental state and an extract of an impressionistic diagnosis of anxiety and panic, situational crisis and suicidal ideation. Extracts from the plaintiff’s own statutory declaration supporting his request for section 48B intervention were also referred to and counsel further referred to the effect of this Court’s decision in Wei v Minister for Immigration and Border Protection [2015] HCA 51 as recently suggesting a pathway for judicial review which might be applicable in this case.

A delay of the kind indicated in this case requires full explanation and exceptional circumstances before the Court will intervene under section 486A(2).  Even allowing for the absence of fully versed legal assistance in the preparation of the application, the plaintiff has simply left unexplained the very substantial gap between November 2013 and August 2015 when he was taken into immigration detention.

The material before me does not disclose a justification for the delay, much less exceptional reasons for extending the time within which an application for prohibition and certiorari can be made.  The case for jurisdictional error is marginal but, in my view, the lateness of the application is fatal.  The application to extend time will, therefore, be dismissed and the summons for interim relief accordingly dismissed.  In the event, it follows that the application itself, being out of time, should be dismissed.  In so saying I would express my thanks to Mr Tully who provided his services at very short notice pro bono for the plaintiff and said all that could properly be said in favour of the application competently and candidly.

The orders are that the application for an enlargement of time is dismissed.  The application for interim relief is dismissed.  The application is dismissed.

MR KAPLAN:   The Minister seeks an order for his costs.

HIS HONOUR:   What practical benefit does that have?

MR KAPLAN:   Well, your Honour, it may not have a practical benefit, but the Minister submits that the ordinary rule ought not to be displaced in this case.

HIS HONOUR:   Mr Tully, what do you say?

MR TULLY:   Thank you, your Honour.  In my submission, there should be no order as to costs in this particular case.  I would refer your Honour to the fact that the Minister’s submissions in this particular case were not changed by reason of the additional evidence that was put on this afternoon and also with respect to the arguments that had been put this afternoon.  Certainly, there was an adjournment of several hours’ time which may have inconvenienced the Minister but, nevertheless, there was limited additional evidence to consider and there was certainly no attempt made to amend the particular application that was put for your Honour’s consideration.

I note there was one instructing solicitor involved in this particular matter and the hearing this afternoon was relatively short, of approximately one and a half hours.  The issues were put within a very narrow compass limited to the way in which the application had been put before your Honour.  So, in my submission, your Honour, there should be no order as to costs.

HIS HONOUR:   Yes, I think that the ordinary rule has to apply unless there is some exceptional reason for displacing it, Mr Tully, so the order will be that the plaintiff is to pay the defendant’s costs of the application.  The Court will now adjourn.

AT 4.37 PM THE MATTER WAS CONCLUDED