Plaintiff S71/2014 v Minister for Immigration and Border Protection and Ors

[2015] HCATrans 39

[2015] HCATrans 039

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S71 of 2014

B e t w e e n -

PLAINTIFF S71/2014

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

JUDGE DRIVER A JUDGE OF THE FEDERAL CIRCUIT COURT OF AUSTRALIA

Third Defendant

Application for order to show cause

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 19 FEBRUARY 2015, AT 11.31 AM

Copyright in the High Court of Australia

PLAINTIFF S71/2014 appeared in person.

MR D.A. HUGHES:   May it please the Court, I appear for the first defendant.  (instructed by DLA Piper Australia)

HIS HONOUR:   I note that there are submitting appearances for the second and third defendants.  I also note that there is an interpreter in Court and I ask that the interpreter be sworn.

MOHAMAD MOKDAD, affirmed as interpreter.

HIS HONOUR:   Now, I have before me an application for an order to show cause, which is supported by an affidavit of the plaintiff sworn 27 March 2014.  Do you wish me to read that affidavit?

PLAINTIFF S71/2014 (through interpreter):   No, I have read that before.

HIS HONOUR:   Yes, very well.  I formally also read that affidavit.  Now, Mr Hughes, you have annexed a file to your submissions.

MR HUGHES:   Your Honour, annexed to my submissions is an affidavit that was filed in the Federal Circuit Court of Australia of Ms Adele Juliet Carr.

HIS HONOUR:   Yes, and you wish me to read that in these proceedings?

MR HUGHES:   Well, your Honour, I tender it as a document that was before the Federal Circuit judge.

HIS HONOUR:   Yes, all right.  Now, the plaintiff, of course, has seen this?  Yes.  Sir, unless you have any objection I propose to read the affidavit of Adele Juliet Carr of 13 March 2014 and to admit into evidence the annexure to that affidavit.

PLAINTIFF S71/2014 (through interpreter):   I have not read that affidavit.

HIS HONOUR:   Well, Mr Hughes, this document has been provided to the plaintiff, has it?

MR HUGHES:   Your Honour, it was provided to him in the Federal Circuit Court and it was provided as an annexure to my submissions which he has.

HIS HONOUR:   Yes.  When was it provided to him as an annexure to your submissions?

MR HUGHES:   Your Honour, I am instructed the document was served on the plaintiff on 10 February by courier, and I have an affidavit of service if that would assist the Court.

HIS HONOUR:   Well, let me just ask the plaintiff.  Sir, you have seen the written submissions prepared by the first defendant in these proceedings?

PLAINTIFF S71/2014 (through interpreter):   I have received something in the mail, but I did not read it as I do not know how to read English.  I cannot read English.

HIS HONOUR:   Yes.  I propose to take a short adjournment to allow the plaintiff, with the assistance of the interpreter, to examine the affidavit annexed to the written submissions of the first defendant.  I will adjourn until 10 to 12.

AT 11.37 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.50 AM:

HIS HONOUR:   Sir, has the affidavit of Adele Juliet Carr been explained to you?

PLAINTIFF S71/2014 (through interpreter):   Yes.

HIS HONOUR:   Do you have any objection to me reading it and taking it into account in this case?

PLAINTIFF S71/2014 (through interpreter):   I did not quite understand the question, your Honour.

HIS HONOUR:   I propose to read it and consider it in my consideration of your case.

PLAINTIFF S71/2014 (through interpreter):   Yes, your Honour.

HIS HONOUR:   That is what I now do.  I read the affidavit of Adele Juliet Carr, including the annexure.  Now, sir, I have your written submissions and I have read them before coming into Court.  Is there anything further you wish to say in support of your application for an order to show cause?

PLAINTIFF S71/2014 (through interpreter):   No, nothing to add, your Honour.

HIS HONOUR:   Thank you very much.  Mr Hughes, I do not need to hear from you.

The plaintiff is a citizen of Lebanon who arrived in Australia on 19 May 2010 on a student visa.  That visa expired on 9 August 2012 as a consequence of which he became an unlawful non‑citizen within the meaning of the Migration Act 1958. On 27 June 2013, three days after being taken into immigration detention, he lodged an application for a protection visa. The application was refused by a delegate of the Minister then administering the Migration Act.  That was on 8 August 2013.  The Refugee Review Tribunal affirmed that decision on 11 October 2013.

On 12 February 2014, the plaintiff purported to apply to the Federal Circuit Court for judicial review of the decision of the Tribunal. The purported application was outside the 35‑day time limit set for the filing of such an application by section 477 of the Migration Act.  On 20 March 2014, Judge Driver refused an application for an extension of time under that section.  His Honour was not satisfied that the plaintiff had advanced a satisfactory explanation for his delay coming to court, nor was his Honour persuaded that the plaintiff had advanced an arguable case that the decision of the Tribunal was affected by error of the relevant jurisdictional kind.

On 31 March 2014, the plaintiff filed an application for an order to show cause in the original jurisdiction of this Court by which he seeks judicial review, both of the decision of the Tribunal made on 11 October 2013 and the decision of Judge Driver given on 20 March 2014.  That is the application which is now before me. 

The application for an order to show cause identifies no ground on which the decision of Judge Driver is sought to be challenged. His Honour’s reasons, delivered ex tempore, disclose no basis on which it might fairly be argued that his decision was affected by jurisdictional error. Insofar as the application for an order to show cause seeks judicial review of the decision of the Tribunal, it is outside the 35‑day time limit set for the filing of such an application by section 486A of the Migration Act.  The length of the plaintiff’s delay in filing his application is slightly in excess of four months.  This Court has power, however, to extend the time for the making of the application if satisfied that it is necessary in the interests of the administration of justice.

In the circumstances of the present case I am not so satisfied. First, the plaintiff had, but failed to exercise within the requisite time, an adequate alternative to invoking the original constitutionally conferred jurisdiction of this Court being his ability to invoke the statutory jurisdiction of the Federal Circuit Court. Second, I am not satisfied that the plaintiff has advanced a satisfactory explanation for his delay in coming to this Court. His affidavit evidence seeks to explain that delay on the basis that his migration agent never informed him that he had a right to appeal to any court. That explanation does not account for the application he in fact purported to make to the Federal Circuit Court. Third, I am not satisfied that the plaintiff advances in this Court an arguable case that the decision of the Tribunal was affected by error of the requisite jurisdictional kind. His grounds in this Court substantially mirror those he sought to advance before the Federal Circuit Court. He argues that the Tribunal denied him procedural fairness and that it misconstrued the terms of section 36(2)(aa) of the Migration Act.

As to the procedural fairness ground, it is necessary to say something of the procedural history of the matter. 

On 19 August 2013, the plaintiff was invited to attend the hearing of the Tribunal to be held at 9.30 am on 26 September 2013.  He did not attend the hearing and the hearing was adjourned to later in the day at which point the plaintiff refused to attend.  The reason he gave was that he was ill.  His solicitor undertook to provide a medical certificate to the Tribunal.  No medical certificate was provided.

The Tribunal then proceeded, under section 426A of the Act, to make its decision without taking any further action to allow or enable the plaintiff to appear before it, resulting in what the plaintiff now contends was the denial of procedural fairness.  The Tribunal was entitled to so proceed under section 426A.  The reasons of the Tribunal disclose that it exercised its power under that section because it found that the reasons that the plaintiff put forward for his failure to attend the hearing were unsatisfactory.  The plaintiff has not identified any error of the requisite kind in relation to that aspect of the Tribunal’s decision.

The Tribunal, in its decision, then found that the lack of information before it meant that it could not be satisfied that the test in section 36(2)(aa) was satisfied. Once it is accepted that the Tribunal was entitled to proceed as it did in the absence of the plaintiff, there can be no reviewable error in that aspect of the Tribunal’s decision.

In the result, I order that the application for an order of review be dismissed.  Do you ask for costs?

MR HUGHES:   I do, your Honour.

HIS HONOUR:   I order that the application for an order of review be dismissed with costs.  The Court will now adjourn.

AT 11.59 AM THE MATTER WAS CONCLUDED