Plaintiff S62/2012 v Minister for Immigration and Citizenship & Ors

[2012] HCATrans 124

[2012] HCATrans 124

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S62 of 2012

B e t w e e n -

PLAINTIFF S62/2012

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

THE HONOURABLE FEDERAL COURT MAGISTRATE EMMETT

Third Defendant

Application for an order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 21 MAY 2012, AT 11.08 AM

Copyright in the High Court of Australia

PLAINTIFF S62/2012 appeared in person.

MR J.B. KAY HOYLE:   If your Honour pleases, I appear for the first defendant.  (instructed by Clayton Utz Lawyers)

JOSEPH KALOU, sworn as interpreter:

HIS HONOUR:   Now, [Plaintiff], I have your affidavit of 13 March and I have read that.  Do you want me to take that into account?

PLAINTIFF S62/2012 (through interpreter):   I have a handwritten document here, your Honour, which I would like to give you.

HIS HONOUR:   Yes, I will take that in a moment, but he does want to rely on this affidavit filed on 13 March?

PLAINTIFF S62/2012 (through interpreter):   I have those copies here, your Honour.

HIS HONOUR:   My question is simply this.  Is he relying on the affidavit that he filed on 13 March?

PLAINTIFF S62/2012 (through interpreter):   Yes, your Honour.

HIS HONOUR:   Right.  Mr Kay Hoyle, do you object to the affidavit?

MR KAY HOYLE:   No, your Honour.

HIS HONOUR:   Do you wish to cross‑examine the plaintiff on the affidavit?

MR KAY HOYLE:   Yes.

HIS HONOUR:   Now, this other piece of paper that the plaintiff wants to hand up – are there any copies of that?

PLAINTIFF S62/2012 (through interpreter):   I have only got the original, your Honour.

HIS HONOUR:   Right, what language is that written in?

PLAINTIFF S62/2012 (through interpreter):   It is written in this language.

HIS HONOUR:   Very well.  Do you have a copy, Mr Kay Hoyle?

MR KAY HOYLE:   I do not, your Honour.

HIS HONOUR:   Very well, if you could hand that to the Court Officer.  You can sit down.  It might be simplest if I just read this out and then if you want to look at the document – it is, in effect, a written submission headed “Adjournment No 362 of 2012”:

1.I apply for an adjornment of the proceedings so that a lawyer who saw me in Villawood last week who has now got my documents to this case should help to prosecute my case.

2.I do not understand the process of the law

3.But this I know that I am a refugee and that I will be persecuted and suffer degrading and inhuman harm if returned back to Fiji

4.The Tribunal’s decision is vitiated by jurisdictional error

5.He promised to look into my case and to secure a barister to help me with the case in court and file amended Form 12.

6.I ask that you grant the adjornment in the interest of the administration of justice.

7.I am unable and incapable to prosecute my case as I do not understand English and do not understand the law and in particular the migration law.

8.I did not understand why I was told to enter into a small box in the Federal Magistrate Court.

9.I did not understand anything that was said or the questions that I was asked when I was in the box.

10.I just sat there not knowing any thing at all.  It was all confusing to me.

11.They were speaking very very big big English which I did not understand.

12.So please adjorn the case.

Do you want to see the document?

MR KAY HOYLE:   Only to the extent that when my instructing solicitor endeavoured to take a copy, that invitation was refused and therefore the attitude of the first defendant to that adjournment could not readily be ascertained at the time.  The only thing I would say about the matters referred to, your Honour, is that I would anticipate that such an application for adjournment would be opposed, but I do not have any specific instructions in that regard.

HIS HONOUR:   How long will it take to get them?

MR KAY HOYLE:   A few minutes.

HIS HONOUR:   Very well.  I will adjourn for 10 minutes.

MR KAY HOYLE:   In that regard it would be useful to have a copy of that document, if I could have the assistance of the Court in that regard.

HIS HONOUR:   Yes, it will be handed to you now then.

MR KAY HOYLE:   Thank you.

HIS HONOUR:   The Court will adjourn for 10 minutes.  If you want more time, just let the Registry officers know.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.27 AM:

HIS HONOUR:   You have instructions, Mr Kay Hoyle?

MR KAY HOYLE:   Your Honour, I am grateful for the brief adjournment.  I do have instructions.

HIS HONOUR:   Yes.

MR KAY HOYLE:   I am instructed to oppose the adjournment.  Just very briefly if I could outline the reasons for that opposition?

HIS HONOUR:   Perhaps we should hear the reasons why the adjournment should be granted, from the plaintiff.

MR KAY HOYLE:   Your Honour does have a point, yes.

HIS HONOUR:   Could you ask the plaintiff the reasons why he wants an adjournment?

PLAINTIFF S62/2012 (through interpreter):   I would like to seek legal representation, your Honour, for a lawyer to speak on my behalf.

HIS HONOUR:   Yes.  Could you ask the plaintiff what he has done between 13 March 2012 when he filed his application and now to getting a lawyer?

PLAINTIFF S62/2012 (through interpreter):   I have been making inquiries, your Honour, and I saw one briefly last week but he has not attended since.

HIS HONOUR:   What was the name of that lawyer?

PLAINTIFF S62/2012 (through interpreter):   He did not mention his name, your Honour.

HIS HONOUR:   Did the plaintiff show that lawyer the papers that have been filed in these High Court proceedings?

PLAINTIFF S62/2012 (through interpreter):   Yes, your Honour.

HIS HONOUR:   Did he take them away?

PLAINTIFF S62/2012 (through interpreter):   No.

HIS HONOUR:   Did he say he would help the plaintiff in the future conduct of these proceedings?

PLAINTIFF S62/2012 (through interpreter):   He only mentioned that he will come to see me, your Honour.

HIS HONOUR:   Was the lawyer a solicitor?

PLAINTIFF S62/2012 (through interpreter):   I do not know, your Honour.  I just knew that he told me that he is a lawyer.

HIS HONOUR:   Did he say anything about being paid for his services?

PLAINTIFF S62/2012 (through interpreter):   No, he did not mention any payment.

HIS HONOUR:   How long an adjournment does the plaintiff want?

PLAINTIFF S62/2012 (through interpreter):   I would like to leave it up to you, your Honour.

HIS HONOUR:   Yes, thank you.  Yes, Mr Kay Hoyle.

MR KAY HOYLE:   Your Honour, two matters.  First of all, in my submission, this is not an appropriate case for an adjournment given the fact that there has now been a period of over two months since the time when the application was filed and it would appear from the plaintiff’s own evidence that the plaintiff only took steps to find a lawyer relatively recently within that period.  Secondly, the evidence provided by the plaintiff is, in my submission, unsatisfactory in that it fails to identify the lawyer concerned.

HIS HONOUR:   It was not evidence that was given.  He was just answering questions.  He was not giving evidence.

MR KAY HOYLE:   I am obliged to your Honour.

HIS HONOUR:   I suppose his submissions in support of the adjournment fail to identify.  Evidence in this Court is only given on oath or affirmation.

MR KAY HOYLE:   Quite so, your Honour.  The submissions made by the plaintiff failed to identify the identity of the lawyer or any other pertinent details save for the fact that he had met with someone who told him he was a lawyer.  In those circumstances, your Honour, it would be my submission that, given the length of time involved, and the inability to identify with any specificity the steps taken or the individual sought to be retained that it would be open to infer that the plaintiff did not take appropriate or speedy steps to find legal representation given the nature of the delay that has occurred since the time of the filing of the application.  In those circumstances it would be my submission that this is not an appropriate case in which to exercise your Honour’s discretion.

HIS HONOUR:   Thank you.  Does the plaintiff want to say anything more about the adjournment application?

PLAINTIFF S62/2012 (through interpreter):   Just with regarding the length of time, your Honour, I had been immobile for quite a while since I got injured at the detention centre.

HIS HONOUR:   Yes, thank you.

On 13 March 2012, the plaintiff filed an application to show cause why various forms of relief should not be granted in relation to orders of the Federal Magistrates Court made on 27 February 2012.  That application was supported by an affidavit filed on the same day, together with a summons.  It follows that more than two months have passed between the time when those documents were filed and today, the first return day for the proceedings.

The plaintiff seeks an adjournment of unspecified length in order to obtain legal representation.  He says that he was rendered immobile after being injured at the detention centre where he presently resides.  He has been making inquiries about getting a lawyer.  He saw one briefly last week, that is to say he spoke to a person who said he was a lawyer briefly last week.  He has not seen that person since then.  He does not know that person’s name.  He showed that person, according to the submissions he made this morning, the papers relating to these High Court proceedings, but the person in question did not take them away.  The person said he would come back to the detention centre and see the plaintiff.  The question of paying for that person’s services was not discussed.

The very general nature of the contact with the person last week does not raise any inference that legal assistance is likely to be forthcoming in the near future.  Assuming that the plaintiff was injured and immobile, that circumstance alone does not explain the failure to take more energetic action, either before these proceedings were instituted or since they have been instituted.  Accordingly, I reject the application for an adjournment.

Now, Mr Kay Hoyle, you are relying on two affidavits.  Is that right?

MR KAY HOYLE:   That is correct, your Honour.

HIS HONOUR:   That of Richard John Baird filed on 16 May 2012?

MR KAY HOYLE:   Yes.

HIS HONOUR:   And that of Mr Oliver Richard Jones filed on 17 May 2012?

MR KAY HOYLE:   That is correct, your Honour.

HIS HONOUR:    Could you ask the plaintiff whether he objects to the receipt of those two affidavits.

PLAINTIFF S62/2012 (through interpreter):   I accept, your Honour.

HIS HONOUR:   He accepts.  Yes, very well.  Does he want to cross‑examine the deponents to those affidavits?

PLAINTIFF S62/2012 (through interpreter):   I would like to have legal representation, your Honour.

HIS HONOUR:   Well, I am afraid he cannot have legal representation today.  Does he wish to cross‑examine either Mr Jones or Mr Baird about their affidavits?

PLAINTIFF S62/2012 (through interpreter):   I would like the lawyer to do that for me, your Honour.

HIS HONOUR:   Very well.  Those two affidavits will be received into evidence and in the absence of any lawyer there will not be any cross‑examination of those gentlemen.  Now, can I ask the plaintiff this question?  I have read everything that has been filed.  What does he want to say in support of his application for the orders he has asked to be made in his original application?

PLAINTIFF S62/2012 (through interpreter):   I would like to present to this Court, your Honour, that I cannot return to Fiji.  Through your help now I cannot return to Fiji, I cannot do anything.  With this situation I am in, I will be detained as soon as I get to the airport in Fiji because the news about me here has already been known in Fiji, with all my court appearances here in Australia.

HIS HONOUR:   Yes.  Anything else he wants to say?

PLAINTIFF S62/2012 (through interpreter):   That will be all, your Honour.

HIS HONOUR:   Very well, thank you. 

The plaintiff is a citizen of Fiji.  He sought a protection visa on the ground that he feared persecution on political grounds if he were to return to Fiji.  A delegate of the Minister for Immigration and Citizenship, the first defendant, refused that application.  The Refugee Review Tribunal (“the Tribunal”) affirmed that decision.  Although it accepted that the plaintiff had been detained in 2008, it considered, but rejected his claim to have been detained by reason of any links with a party opposing the government.  The Tribunal did not accept that he would not be able to engage in political activities on his return to Fiji.  It considered that his claimed fear of persecution was ill founded.

The plaintiff then applied to the Federal Magistrates Court for judicial review.  The application was filed about six months late.  The plaintiff applied for an extension of the time within which to file that application.  Federal Magistrate Emmett refused the plaintiff’s application to extend time and dismissed the application for review of the Tribunal’s decision. 

In this Court the plaintiff, on 13 March 2012, filed an application to show cause seeking prohibition, certiorari and mandamus, as well as injunctive relief and relief in the nature of habeas corpus. The application alleges that the Tribunal fell into error because it acted pursuant “to a process compromised by a third party fraud by the Interpreter who deliberately disabled the Tribunal from properly discharging its duty” under section 425 of the Migration Act 1958 (Cth) (“the Act”).

The focus of the present application must be on the Federal Magistrates Court. The plaintiff complains that Federal Magistrate Emmett refused him legal representation. The central issue is whether she erred in refusing to extend time under section 477(2) of the Act and in concluding that there was no utility in extending time.

On the extension of time question, Federal Magistrate Emmett found that the plaintiff had not made any approach to a lawyer until a week before a hearing and had not applied for legal aid until that time.  She concluded that that explanation was unsatisfactory.  On the utility point, Federal Magistrate Emmett said that even if one accepted the plaintiff’s complaint that the interpreter did not tell the Tribunal that the plaintiff would be detained if he returned to Fiji that would not demonstrate a jurisdictional error by the Tribunal.  The Tribunal clearly understood that the plaintiff claimed to fear harm were he to be returned to Fiji.

In relation to the plaintiff’s allegation that Federal Magistrate Emmett refused him legal representation, he claims that on the day of the Federal Magistrates Court hearing counsel for the defendant sought his consent to an adjournment so as to give him, the plaintiff, time to get legal representation.  He gave that consent.

Paragraph 23 of the plaintiff’s affidavit in this Court states in relation to the events in the Federal Magistrates Court:

“I was dragged into a box and asked many times things I do not understand and given a bible to say some things.  That was just like I was being mocked as I did not understand anything that was being said or why things were done that way.  I simply did not understand.  That is why I asked, told [her] Honour that I wanted a lawyer and the court should appoint a lawyer for me as the court had done for other detainees who have no lawyers.”

I interpolate that the transcript of the hearing before Federal Magistrate Emmett reveals that there was an interpreter present who interpreted what was said to the plaintiff and what he had to say for himself.  Paragraph 30 of his affidavit states:

“The learned Magistrate Emmett erred in law for denying me my right under the common law and Constitution, for denying me legal representation when I have mentioned the fact that I have been actively seeking legal representation and the fact that counsel for the respondent has approached me and sought my consent for the matter to be adjourned to June 2012 before he went into court and that will allow me time to seek legal representation and I was forced into the dock to answer questions which I did not understand. This prejudiced my case and denied me procedural fairness and Emmett FM should have so found and not dismissed my case.”

The transcript for the hearing of 27 February 2012 records that her Honour stated that she proposed to hear the application that day.  Some minutes later the hearing of the plaintiff’s application for judicial review before her commenced.  Federal Magistrate Emmett asked the plaintiff, who had already filed an affidavit, whether he sought leave to give oral evidence to explain his delay in going to the Federal Magistrates Court.  He said “Yes”.  He did not complain about her request.  He did not seek an adjournment.  He did not refer to any agreement with counsel for the defendant that there would be an adjournment.  He did not ask for a lawyer.  He did not demonstrate that he failed to understand any aspect of the questions he was asked through an interpreter.  He did not say at the time that he did not understand the questions he was asked. 

In my opinion it has not been established that Federal Magistrate Emmett fell into any jurisdictional error in refusing to extend time.  Accordingly, the application must be dismissed with costs.

The Court will now adjourn.

AT 11.50 AM THE MATTER WAS CONCLUDED