Plaintiffs A17 of 2006 v MIMIA

[2007] HCATrans 435

[2007] HCATrans 435

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A17 of 2006

B e t w e e n -

PLAINTIFFS A17 OF 2006

Plaintiffs

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

Pronouncement of orders

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 16 AUGUST 2007, AT 9.37 AM

Copyright in the High Court of Australia

HER HONOUR:   On 27 July 2006 the plaintiffs filed an application for an order to show cause seeking certiorari directed to the Minister for Immigration and Multicultural and Indigenous Affairs, and to the member who constituted the Refugee Review Tribunal, to quash the decision of the Tribunal made on 19 May 2000 affirming the decision of a delegate of the Minister not to grant the plaintiffs’ protection visa.

The application in this Court further seeks prohibition to prevent the Minister from acting on the Tribunal’s decision and mandamus to compel the Minister to grant permanent protection visas to the plaintiffs. On 2 October 2006 the plaintiffs filed a summons in accordance with rule 25.03.01 of the High Court Rules 2004 (Cth).

The plaintiffs, a husband and wife and their son, arrived in Australia on 10 February 1994 and made an application for protection visas on 22 December 1995.  A fourth applicant, the daughter of the adult plaintiffs, was originally included on this application but she is no longer a party to the proceedings.

A delegate of the Minister refused that application on 7 November 1996 and the plaintiffs sought review of that decision by the Refugee Review Tribunal.  On 3 April 1998 the Tribunal affirmed the decision of the Minister not to grant the plaintiffs protection visas, the first Tribunal decision.  After the Tribunal made its decision on 3 April 1998 the plaintiffs made an application for judicial review to the Federal Court of Australia.  On 20 November 1998 Justice Mansfield set aside the first Tribunal decision and remitted the matter to the Tribunal to determine the plaintiffs’ claim.

On 18 May 1999 the differently constituted Tribunal affirmed the decision of the Minister, the second Tribunal decision.  The plaintiffs again applied to the Federal Court and Justice von Doussa by consent remitted the matter to the Tribunal for determination on 29 November 1999.  The Tribunal, again differently constituted, affirmed the decision of the Minister on 19 May 2000, the third Tribunal decision.  It is this decision which gives rise to the present application.

The plaintiffs then applied for judicial review of the third Tribunal decision.  On 11 April 2001 Justice O’Loughlin dismissed that application.  The plaintiffs appealed the decision of Justice O’Loughlin and this appeal was dismissed by Justices Gray, Dowsett and Stone in the Full Court of the Federal Court of Australia on 21 December 2001.  The plaintiffs then brought an application in this Court for special leave to appeal against the decision of the Full Court of the Federal Court.  That application was dismissed on 11 April 2003.

The plaintiffs filed an application in the Federal Court seeking to have the third Tribunal decision quashed for jurisdictional error.  On 30 September 2005 Justice Mansfield ordered that the application be summarily dismissed.  The plaintiffs filed an application for special leave to appeal against the decision of Justice Mansfield and this was dismissed by Justice Finn on 19 December 2005.

The plaintiffs have brought various other proceedings relating to their application for protection visas and also for other visas.  The summary above sets out the litigation relevant to this application.  The plaintiffs’ case has at all stages of the proceedings in this Court been run by the first plaintiff.  He is in custody and was for practical reasons unable to appear before the Court today.  The Registrar advised the first plaintiff that if he could not appear before the Court the matter would be decided on the papers filed by him and the first defendant.

The first plaintiff has filed numerous documents in support of the application to show cause. The first defendant advised the Registrar that a determination on the papers was satisfactory and filed written submissions and other documents. The second defendant has entered a submitting appearance. A final determination of this matter will be made today under rule 25.03.3 of the High Court Rules 2004 (Cth).

The central issue raised by the plaintiffs is their allegation that they were not accorded natural justice by the Tribunal which made the third Tribunal decision.  In particular, the plaintiffs allege that the Tribunal in coming to that decision relied on material not provided by the plaintiffs, did not give the plaintiffs an opportunity to comment on that material, and did not take into account other material provided by the plaintiffs.

The plaintiffs further allege that the Tribunal applied the incorrect test but gave no particulars of either the incorrect test supposedly applied by the Tribunal or the test which the plaintiffs believe should have been applied in its place.  The plaintiffs also attacked some of the factual findings made by the Tribunal.

The various affidavit submissions and other documents filed by the first plaintiff have been read and considered.  There is no support for the plaintiffs’ argument that the second respondent fell into jurisdictional error in reaching the third Tribunal decision.

With respect to factual errors alleged by the plaintiffs all facts found by the Tribunal were open to it.  Factual errors cannot usually support an application of the kind made by the plaintiffs.  The allegation made by the plaintiffs that the Tribunal applied an incorrect test must also fail as the submission made by the plaintiffs in respect of this ground is not particularised.  Nor does it appear that the plaintiffs are correct in their submission that the Tribunal fell into error with respect to the material it did and did not consider.

It is clear from the third Tribunal decision that the Tribunal did in fact give the plaintiffs the opportunity to comment on the material it considered and it was within the jurisdiction of the Tribunal to ascribe weight to evidence as it sees fit.

The plaintiffs have filed new material consisting of a few short newspaper articles from online sources.  The material does not raise any issues not considered by the Tribunal previously.  Even if some jurisdictional error could be ascribed to the Tribunal the fact is that these issues have already been litigated in the proceedings outlined above.  The present proceedings depend essentially on the same facts.  No special circumstances have been advanced such as to justify permitting further proceedings and the raising of further arguments which could have been raised in earlier proceedings.

Given the history of the litigation outlined above and the lack of particularity and merit in the grounds now sought to be advanced, the appropriate course is to dismiss the proceedings.  The plaintiffs must pay the respondent’s costs.  I so order and I publish that disposition.

AT 9.44 AM THE MATTER WAS CONCLUDED