Plaintiffs M164-2005 v MIMIA & Ors

[2006] HCATrans 208

[2006] HCATrans 208

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M164 of 2005

B e t w e e n -

PLAINTIFFS M164 OF 2005

Plaintiffs

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

MS PHILIPPA McINTOSH IN HER CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Defendant

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Third Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 27 APRIL 2006, AT 10.25 AM

Copyright in the High Court of Australia

__________________

MR C.J. HORAN:   Your Honour, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, I understood there was to be an appearance on behalf of the plaintiff in this matter.  Is that right or – yes, apparently the Registry received a telephone message from the plaintiff saying that there would be no appearance.  Nonetheless, we should perhaps have the plaintiff called.

MR HORAN:   Yes, your Honour.

HIS HONOUR:   I notice from the affidavit of Ms Harvey deposing to service that the address for service was an address in New South Wales.

MR HORAN:   Yes.  I think some of these matters, although they have obviously all been filed in Melbourne, seem to have originated with plaintiffs who at least are now in New South Wales.

HIS HONOUR:   Yes.

MR HORAN:   That was in part an explanation why the previous matter was only recently transferred to my instructors down in Melbourne.

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Yes.

MR HORAN:   I should say, your Honour, this matter I believe is the first of the post—Migration Litigation Reform Act applications.

HIS HONOUR:   Right.  Now, what consequences follow from that, Mr Horan?  What Act do I need to be looking at for a start?

MR HORAN:   If your Honour has a recent consolidation of the Migration Act ‑ ‑ ‑

HIS HONOUR:   I have Reprint 9.

MR HORAN:   Does the date of reprint appear on the front?

HIS HONOUR:   1 March 2004.

MR HORAN:   One will need the amending Act, the Migration Litigation Reform Act.

HIS HONOUR:   Yes.  What number Act is that?  I will send for it.

MR HORAN:   It is Act No 137 of 2005.

HIS HONOUR:   Yes.  I will have that obtained for me.

MR HORAN:   Perhaps while that is being done, your Honour, the main consequence of that Act is to introduce new provisions dealing with time limits on commencing applications in this Court and in other courts.  Those time limits now apply to purported privative clause decisions which overcomes, in my submission, the issue which was raised in Plaintiff S157 concerning the limit of the definition of “privative clause decision” to decisions which were not affected by jurisdictional error.  So that the definition which is now contained in section 5E of purported privative clause decision includes decisions that would be privative clause decisions if there was not a failure to exercise jurisdiction or an excess of jurisdiction in the making of the decision.

Now, the concept of purported privative clause decision is primarily used in the application of the time limits on commencing proceedings so that those time limits are now sought to be applied to migration decisions whether or not they are affected by jurisdictional error.

HIS HONOUR:   What is the time limit that is imposed if you get into this gateway of purported privative clause decision and the hours of innocent amusement that that definition appears to presage for someone?

MR HORAN:   The relevant section is section 486A which in its current form effectively applies a time limit of 28 days from actual notification which can then be extended by the Court up to 56 further days, so that the outside time limit is 84 days from actual notification. 

I should say, your Honour, the other matter which arises – and I think it was raised on the facts of this application – is that the transitional provisions to that amending Act which are contained in Schedule 1, items 41 and 42, have the effect that the new time limit applies to proceedings commenced on or after the commencement day, which I understand was 1 December 2005.  Where the proceedings relate to a decision which was made before that date, an actual notification took place before that date, the new time limits apply as if actual notification took place on 1 December 2005.  

As a result, there are some applications in the list today that relate to decisions which may have been made some time before the commencement of the proceedings in this Court but that the time commenced to run again was taken to have commenced to have run from 1 December 2005, which potentially brings those proceedings within time, notwithstanding the earlier date of the migration decision under review. 

There are effectively three categories or periods.  The first is applications filed within the 28‑day period.  So, again, I understand that that effectively is applications filed before 29 December, and they are on the face of section 486A within time and do not require an extension of time.  The next category is applications commenced between that date and 23 February, which is the 84‑day period, and those applications are prima facie outside the prescribed 28‑day limit but this Court can enlarge time up to the outside limit of 84 days.  The final category is proceedings which were commenced after the 84‑day period and an application of section 486A in those cases has the result that the proceedings are out of time and this Court cannot extend the time to commence those proceedings.

HIS HONOUR:   Now, can I just understand much better than I do at the moment the way in which any issue about the application of the amendments made by the 2005 Act would become a live issue in the proceeding most immediately of concern.  If the Act, that is the 2005 Act amendments, operated according to what you would say are their terms, the consequence in this case would be, what, there is no power to extend time?

MR HORAN:   No, your Honour. This one again the categories will follow sequentially in order of the least because they have been listed in chronological order and so this falls into the first category. It is an application filed within the 28‑day period, on 21 December 2005, in relation to a Tribunal decision made on 29 June 2000. So notwithstanding the almost 5½ years time that has elapsed since the making of the Tribunal’s decision, the application was not time barred because of the operation of the transitional provisions, although it would have been outside time under the High Court Rules.

HIS HONOUR:   Well, what effect do you say the Act has on those provisions of the Rules that fix times?

MR HORAN:   I am not sure I have specific instructions on the Minister’s position in relation to that. It may be that the time limits override any provision in the Rules dealing with time, but it may also be possible to apply the Rules as an additional matter to applications which are not precluded by section 486A. They may then fall to be dealt with by the High Court Rules in their present form, imposing the six month and two month time limits. I could perhaps, if it would assist your Honour, obtain more specific instructions. I am just reluctant to commit to one position or the other without that specifically being considered by my client.

HIS HONOUR:   I understand that.  Let me just follow it out a moment, understanding that the Minister may wish to adopt ultimately a position in which there is a belt, braces and a piece of string around the trousers as well – it would not be a surprising outcome.  As things stand on the face of the Act, an application for mandamus, prohibition or certiorari or injunction or declaration must be made within a time.  The Rules provide that certain orders to show cause shall not be granted unless.  This application was, you would say, as I understand it, because of items 41 and 42, an application that was made within 28 days of what is taken to be the date of notification of the decision.  Is that right so far?

MR HORAN:   Yes, your Honour.

HIS HONOUR:   Where do you go from there with your argument?  Can I indicate what is worrying me.  Is your argument one which primarily looks to the operation of the Act according to its terms or is your argument one which exclusively looks to the operation of the Act according to its terms?  That is, is your argument one which requires me to confront questions about the operation of this legislation?

MR HORAN:   On one view, your Honour, as your Honour has pointed out, the requirements in the High Court Rules, in rules 25.06 and 25.07, are directed to the granting of particular orders, so that it looks at the outcome of the proceedings and provides that the Court shall not order a particular outcome unless the application has been filed within certain time periods. The statutory section, on the other hand, is a more conventional limitation period which specifically requires applications to be made within a certain time. Looking at least at applications filed within the time limit prescribed by subsection (1), it may still be possible, in the situation where the application is within time, to apply those High Court Rules which deal with the circumstances in which particular orders should be made.

Now, I should say that that might become slightly more complicated in a situation dealt with by section 486A(1A) because then one would have two concurrent powers to extend time under the Act and/or to enlarge time under the Rules. It may be that one would confront what might be called an inconsistency or at least an operational inconsistency between the provisions of the Act and the provisions of the subordinate legislation comprised in the High Court Rules, but I think, again, without specific instructions, I would say that the primary reliance is placed on section 486A but in circumstances where applications are filed within the time prescribed by that section there may still be scope for the Court to apply rule 25.06 in relation to certiorari and rule 25.07 in relation to mandamus.

HIS HONOUR:   Well, what consequence do you submit follows from the observation that this is a proceeding that was commenced within 28 days after the commencement of the 2005 Act?

MR HORAN:   I suppose the first point I would make, your Honour, is that the easy way out in this application would be to proceed with the matter on the basis that the plaintiff has not appeared and to dismiss the application for want of prosecution.

HIS HONOUR:   Yes.

MR HORAN:   Putting that to one side, the Minister would submit that although the application is not barred by section 486A, it nevertheless should be dismissed on the basis either that it fails to raise an arguable case or – and this becomes perhaps more difficult for today’s purposes – on the basis that the repeat application is an abuse of process or raises res judicata or issue estoppel considerations. The third possibility is to deal with the matter under the time limits in the High Court Rules. However, I have just been instructed that the Minister’s position is that the time limits in the Migration Act take precedence over the time limits in the High Court Rules and so I ‑ ‑ ‑

HIS HONOUR:   You make no argument that the Rules can apply?

MR HORAN:   No.  I rely on the belt and braces without the string.

HIS HONOUR:   But the consequence is the Minister makes no argument that the Rules are engaged?

MR HORAN:   Yes, that is right, your Honour.

HIS HONOUR:   In fact, the Minister’s position appears to be not only that the Rules are not engaged, but cannot be, those Rules having been supplanted or overtaken by the Act.  Is that right?

MR HORAN:   Yes, that is correct.  So this application is one within time and must therefore be dealt with either on the basis of the merits of the application or on the basis of the doctrines of preclusion, issue estoppel and res judicata or on the basis ‑ ‑ ‑

HIS HONOUR:   Can I just say this about preclusion.  It seems to me that the preclusion arguments that we so often see in decisions of the Federal Magistrates Court and Federal Court of Australia depend ultimately on really two sources.  They depend on Wong v Minister for Immigration [2004] FCAFC 242 and Applicant S503/2003 [2005] FCAFC 133. They are the Full Court decisions. They seem to in turn go back into Somanader 178 ALR 677 and in turn perhaps go back to Taylor v Ansett 18 FCR 342.

It is not a point that I would want to decide without hearing argument, particularly about what is said in R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1983] 1 WLR 524 – see also [1984] 1 WLR 592 – without consideration of Professor Campbell’s work, which is an article of 20 Monash University Law Review 21.  Now, there may very well be much else to be said on that subject other than those few references that I have just given, but the question about application of doctrines of preclusion, either strictly so‑called or in the form of abuse of process, is, I think, a question of some size.  It may be that it all falls out perfectly neatly and quickly and easily, but it is a question of some size.

MR HORAN:   Accepting that, your Honour, in relation to res judicata and issue estoppel, in my submission, there is less problem in relation to the application of general principles of abuse of process to any proceeding.

HIS HONOUR:   Save this, if there is no preclusion, if a party is not positively precluded, wherein lies the abuse?

MR HORAN:   Well, one example – and I say this hypothetically without applying it to any particular case – would be a case where the proceeding was brought not for the purpose of seeking any relief, but for the purposes of extending a period of stay in Australia.  If that were established or assumed, then that may be, on ordinary principles, an abuse of process, even if the Court had jurisdiction and there was no strict bar provided by previous proceedings.

I note, your Honour, that in a case on which your Honour sat with Justice Kirby in October 2004, and that is Applicant S434 of 2003 v Minister [2004] HCATrans 398, the matter was dealt with on the basis of abuse of process in circumstances ‑ ‑ ‑

HIS HONOUR:   That is a special leave application?

MR HORAN:   It was an application for leave to appeal.  So I think it was an application ‑ ‑ ‑

HIS HONOUR:   And thus engages the principle in I think it is North Ganalanja that an application to the Court for leave to commence a proceeding in the Court generates no decision of precedential value?

MR HORAN:   Yes, your Honour, but without relying upon it as a precedent, if I rely on it simply as a historical occurrence, that in that case it was an appeal from his Honour Justice Heydon and without expressing any opinion on the questions whether the principle of res judicata or other principles of mandatory preclusion applied to public law remedies, your Honours concluded that:

It is enough to say that in the circumstances of this case the application to this Court for the same remedies sought in, but refused by, the Federal Court was an abuse of process where the central complaint of the applicant in this Court and in the Federal Court was identical, or, if the matter had been presented to the Federal Court, would have been identical.

So if one has a case such as the present where identical relief has been sought in judicial review proceedings arising out of the same Tribunal decision and there are no differences in the grounds that are advanced or in other matters, on the face of the application at present, the inference is open that the proceeding is an abuse of process.  In any event, assuming that res judicata and issue estoppel cannot be dealt with for today’s purposes, that would be my primary submission, alternatively, that in circumstances where the application for review is unparticularised and so the grounds are allegations of jurisdictional error without any particulars of the matters that give rise to those alleged errors, it clearly does not pass the threshold required for the grant of any order to show cause.

HIS HONOUR:   Yes.  Now, as to that branch of the argument, if we were to go down that path of comparing relief and grounds, where do I most conveniently find the documents that I should be comparing?  I take it I begin, do I, with the application in this Court and where do I then most conveniently compare it with what has happened in the past?

MR HORAN:   Your Honour, there is an affidavit of Maria Ngo sworn 9 February 2006.  Does your Honour have that?

HIS HONOUR:   I do. 

MR HORAN:   The previous proceedings as are set out in paragraph 8 of that affidavit were commenced in this Court I understand as part of what has been referred to as the Muin and Lie class action.  Exhibit MN‑2 should contain the draft order nisi and affidavit that relates to the commencement of that proceeding.

HIS HONOUR:   Yes.

MR HORAN:   The principal ground of review relied upon was a denial of procedural fairness in taking into account matters adverse to the present plaintiff without notice to the plaintiff.  That matter was ultimately remitted to the Federal Court and was dismissed by Justice Emmett on 30 April 2004.

HIS HONOUR:   Now, when did Justice Emmett deal with that?

MR HORAN:   30 April 2004.

HIS HONOUR:   30 April 2004, yes, I see.  Then there is a separate set of proceedings in 2005 or 2004, is it?

MR HORAN:   I think commenced on 21 May 2004 and dismissed by Federal Magistrate Riethmuller on 3 May 2005.  The application for review is exhibit MN‑4 and that raised a number of matters, some of which were not very well particularised but it comprised primarily failure to consider relevant material, errors in interpreting the Convention and particular social group issues, failure to put to the applicants country information, which is similar to the matter raised in the first High Court proceeding, and then some other Muin and Lie type matters.  Each of those was addressed and dismissed by the Federal Magistrates Court, the judgment appearing in exhibit MN‑5.

HIS HONOUR:   The grounds on which relief is claimed in the present matter are the seven grounds set out in the application for an order to show cause dated 21 December 2005.  Is that right?

MR HORAN:   Yes, your Honour, and those grounds I should say are common to a number of the proceedings listed today and simply recount their allegations of failure to have regard to documents – again, that was something that was specifically ‑ ‑ ‑

HIS HONOUR:   Are the grounds amplified in any relevant respect, do you say, in the affidavit material that is filed?

MR HORAN:   No, your Honour, not that I have noted.

HIS HONOUR:   Yes.  Then does it come to this:  this is the third time of asking and the third time raises no point different from/larger than points previously made and failed?

MR HORAN:   Yes, your Honour.

HIS HONOUR:   Yes, very well.  Mr Horan, do I understand there to be three plaintiffs here:  husband, wife and daughter?  Is that right?

MR HORAN:   That has certainly been the case in earlier – yes.

HIS HONOUR:   I think Ms Ngo’s affidavit, do I read her to write in paragraph 2 that the plaintiffs are husband, wife and daughter?

MR HORAN:   That is right, your Honour.  I think the heading to that affidavit perhaps does not reflect the fact that there is more than one plaintiff, but when one looks at the initiating documents of the applicant, there is, as your Honour has pointed out, three plaintiffs.

HIS HONOUR:   Yes, thank you, Mr Horan.

The plaintiffs are husband, wife and daughter.  All are citizens of India.  The first plaintiff, the wife, arrived in Australia with her daughter in April 1998.  The second plaintiff, the first plaintiff’s husband, had arrived in Australia first in 1993 on a student visa but re‑entered Australia in February 1996.

On 27 May 1998 the wife lodged an application for protection visa.  That application was made on behalf of the husband and daughter.  On 10 June 1998 a delegate of the Minister determined that the plaintiffs were not persons to whom Australia had protection obligations and refused the grant of protection visas.  The plaintiffs applied for review of the delegate’s decision in December 1998 and on 29 June 2000 the Refugee Review Tribunal published its reasons for decision affirming the delegate’s decision to refuse the application for protection visa.

The plaintiffs joined what became known as the Muin and Lie class action commenced in this Court during 2000 and they joined that action on 19 July 2000.  Subsequently on 30 May 2003 the plaintiffs filed a draft order nisi in this Court seeking certiorari and mandamus, certiorari to quash the Tribunal’s decision dated 13 June 2000, which, as I have indicated, was published on 29 June 2000, and mandamus requiring the Tribunal differently constituted to consider and determine the plaintiffs’ application for protection visa.  The grounds specified in that draft order nisi were specified as being:

1.The decision of the [Tribunal] of 13 June 2000 was beyond its jurisdiction.

2.There was a denial of procedural fairness in the making of the decision in that the [Tribunal] took into account matters adverse to the [plaintiffs] without notice to the [plaintiffs].

3.The [Tribunal] breached the rules of natural justice in connection with the making of the Decision.

4.The procedure that was required by law to be observed in order to make this decision was not observed.

5.The making of the decision was an improper exercise of the powers conferred by the enactment in pursuance of which it was purported to be made.

6.Proceedings in this matter be stayed pending the hearing and determination of this Order Nisi or until further ordered.

Those grounds were not further specified. The proceedings were subsequently remitted to the Federal Court of Australia and on 30 April 2004 Justice Emmett of the Federal Court refused the application made for order nisi. Following that refusal of order nisi the plaintiffs commenced a further proceeding in the Federal Magistrates Court of Australia seeking relief under section 39B of the Judiciary Act 1903 (Cth). In the initiating application the plaintiffs described the detail of their claim as being that they were “aggrieved by the decision of the Refugee Review Tribunal” dated 13 June 2000 and claimed:

1.A DECLARATION that the decision [of the Tribunal] was invalid and contrary to law.

2.A WRIT of CERTIORARI to call up and quash the decision or an ORDER that the decision be quashed or set aside.

3.A WRIT OF PROHIBITION or AN INJUNCTION prohibiting the [Minister] whether personally or by [others] from acting on, giving effect to, acting in accordance with or relying on the decision.

4.A WRIT OF MANDAMUS or AN INJUNCTION or an ORDER that the matter be remitted to the Tribunal differently constituted to be determined according to law.

On 3 May 2005 the Federal Magistrates Court of Australia dismissed that application with costs.  On 23 May 2005 the plaintiffs appealed to the Federal Court of Australia.  A single judge of that court (Justice Marshall) exercising the appellate jurisdiction of that court dismissed that appeal on 24 November 2005.  Thereafter, on 21 December 2005 the plaintiffs filed in this Court an application for an order to show cause in which leave was sought extending the time within which the application might be made and seeking further certiorari, mandamus and prohibition.  The grounds on which that relief was claimed were specified as being:

1.        Failure to have regard to the relevant documents

2.Failure to provide reasonable opportunity to respond to adverse material

3.Jurisdictional error for denial of procedural fairness and natural justice.

4.Failure to comply with section 425 of the Migration Act and afford the plaintiff an opportunity to give evidence and/or meet the adverse material

5.The [Tribunal] has taken into account material adverse to the Plaintiff’s case without the knowledge of the Plaintiff thereby depriving [them] of the opportunity to meet the adverse evidence.

6.The [Tribunal] failed to receive or consider relevant material in documentary form that contained information favourable to the Plaintiff’s case and this failure was tantamount to a breach of procedural fairness.

7.The failure to observe procedural fairness constituted a breach of section 425 of the Migration Act 1958 rendering the decision ultra vires.

It is to be noted that those grounds are not further specified in the material filed in support of the application and no further particulars have subsequently been given of the grounds stated in the application for an order to show cause.

The application for an order to show cause now comes on for directions as the first directions following its institution.  The Minister applies for orders summarily terminating the proceedings.  The Minister contends that the proceedings were commenced within the time that is fixed by the provisions of the Migration Act 1958 (Cth) as amended by the Migration Litigation Reform Act 2005 (Cth) when account is taken of the transitional provisions of the 2005 amending Act that are set out in items 41 and 42 of Schedule 1 to that Act.

The Minister contends further that the time limits prescribed by that Act are the only relevant time limits to which reference may be made, account not being now able to be made of those provisions of the High Court Rules 2004 fixing the time within which application may be made for certiorari or mandamus. It is said by the Minister that the provisions of the Migration Litigation Reform Act 2005 have overtaken those time limits. It is unnecessary to consider either the construction of or the application of the 2005 legislation for the purposes of dealing with the Minister’s present application.

The Minister would contend that the plaintiffs’ application is precluded by application of doctrines of res judicata, issue estoppel or the like.  Those are questions which, again, I do not consider it is necessary to embark upon in determining the Minister’s application.  They are questions which, if they are to be agitated, would require consideration of a number of decisions of the Full Court of the Federal Court of Australia, including, in particular, Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242, Applicant S503/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 133, the decision of Justice Merkel in Somanader v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 178 ALR 677 as well also as the decision of the Full Court of the Federal Court in Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342.

In addition, it would be necessary to consider what has been said in the English courts in R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1983] 1 WLR 524 and on appeal to the Court of Appeal [1984] 1 WLR 592, as well also as the writings of Professor Campbell in the article “Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation” (1994) 20 Monash University Law Review 21, particularly at pages 29 to 30, and Professor Wade’s consideration of these questions in successive editions of his work on administrative law:  see, in particular, the fifth edition of that work of 1982.

For present purposes, it is enough to notice that the application which the plaintiffs make in this matter is the third resort they have made to the judicial power of the Commonwealth to seek judicial review of the decision of the Refugee Review Tribunal.  The grounds advanced as the grounds for the application in this Court are expressed in language of great generality.  So far as appears from the papers which the plaintiffs have filed and which they have not sought to amplify, whether in writing or by appearing today to make oral submissions, the grounds of complaint which they would seek to urge in this Court are not relevantly different from grounds of complaint which they have urged unsuccessfully in other courts.

In those circumstances, it appears to me that the Minister’s contention that the maintenance of the proceedings is vexatious and an abuse of process is not answered and, so far as the material before me goes, is unanswerable.  That being so, I am of the view that the orders sought by the Minister summarily terminating the proceeding should be granted and that the application is dismissed.  It must be dismissed with costs.

AT 11.14 AM THE MATTER WAS CONCLUDED