Seruqaranivalu v Minister for Immigration and Border Protection

[2015] HCATrans 38

[2015] HCATrans 038

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S68 of 2014

B e t w e e n -

RATU EPARAMA MASIVESI SERUQARANIVALU

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Application for order to show cause

GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO PERTH

ON WEDNESDAY, 18 FEBRUARY 2015, AT 11.30 AM

Copyright in the High Court of Australia

MR R.E.M. SERUQARANIVALU appeared in person.

MR A. MARKUS:   If your Honour pleases, I appear for the defendant.  (instructed by Australian Government Solicitor)

JOSEFA NAWAI, sworn as interpreter.

HIS HONOUR:   Sir, you have an application before this Court challenging a decision refusing to grant you a visa.

MR SERUQARANIVALU (through interpreter):   That is correct.

HIS HONOUR:   You have filed with the Court, in support of that application, two affidavits.

MR SERUQARANIVALU:   Yes, sir.

HIS HONOUR:   Do you wish me to read those affidavits?

MR SERUQARANIVALU (through interpreter):   If it is possible, but also I have copies with me.

HIS HONOUR:   Well, I read those affidavits.  Sit down for a moment, please.  Mr Markus, you have an affidavit?

MR MARKUS:   Yes, your Honour.  Can I also just note in relation to the two affidavits that paragraphs 9 to 13 of the first affidavit, if I can refer to it in that way, and paragraph 6 of the second affidavit appear to be more in the nature of submissions than evidence, but I assume that ‑ ‑ ‑

HIS HONOUR:   That is evident on their face and I read them in that way.

MR MARKUS:   Thank you, your Honour.

HIS HONOUR:   Yes.

MR MARKUS:   Your Honour, I do seek to read an affidavit affirmed by Louise Bernadette Buchanan on 4 February 2015 and filed on the same day.

HIS HONOUR:   Has the plaintiff a copy of that affidavit?

MR MARKUS:   I believe so, your Honour.  It was served by facsimile, or it was sent by facsimile to the applicant’s current address.

HIS HONOUR:   Thank you, Mr Markus.

MR MARKUS:   Thank you, your Honour.

HIS HONOUR:   Sir, do you have a – could you stand up, please, sir?  Do you have a copy of an affidavit of Louise Buchanan?

MR SERUQARANIVALU (through interpreter):   Sir, there is a concern that I would like to present to this Court, the disadvantages that I have because of my relocation, and this document affidavit that you are referring to I did not receive that until yesterday.  And at the moment I am not able – unable to go through them because I have not got my reading glasses with me, and also I do have some matters that concerning some of this legal part of my case, especially with the law - that all these documents that I have, I have not been able to have with me since my – been transferred over to Western Australia.  There is some – that is a disadvantage that I want to present to this Court where I have been ‑ ‑ ‑

HIS HONOUR:   Very well.  The first question is do you have a copy of the whole of the affidavit?

MR SERUQARANIVALU (through interpreter):   Yes, I do, your Honour.

HIS HONOUR:   The second question is have you read the affidavit?

MR SERUQARANIVALU (through interpreter):   I did not receive these documents till about 4.00 pm yesterday.

MR SERUQARANIVALU:   That is how the service provider provide me with these documents, it is quite late.

HIS HONOUR:   My question is have you read the affidavit?

MR SERUQARANIVALU (through interpreter):   I have roughly gone through it.  My problem, as I have mentioned before, I need glasses to read and that is – I have tried to go through it.

HIS HONOUR:   Is there any reason why I should not read the affidavit now?

MR SERUQARANIVALU (through interpreter):   I do not mind you reading the copy of affidavit, it is just that with my understanding and

things that I believe that this document is supposed to be with me for – at least give me some time before I get it, before I come to Court, and I did not receive this document till 4.00 pm yesterday.

HIS HONOUR:   Very well.  Sir, will you sit down please for a moment?  Mr Markus, what is the explanation?

MR MARKUS:   Your Honour, could I please hand up three documents?  The first one is – or there is a letter dated 4 February 2015 to the plaintiff enclosing by way of service the affidavit, a covering facsimile – it looks like an email, but it is a facsimile to the Yongah Hill Immigration Detention Centre, requesting that the affidavit be provided to the plaintiff as soon as possible, and a facsimile confirmation sheet on top confirming that the facsimile was transmitted on 4 February 2015.

HIS HONOUR:   The facsimile from the Australian Government Solicitor?

MR MARKUS:   That is correct, your Honour.

HIS HONOUR:   So if I receive that it will prove what?

MR MARKUS:   If your Honour receives it, it will prove that the facsimile was received at Yongah Hill Immigration Detention Centre on 4 February with a request that it be provided to the plaintiff as soon as possible.  Your Honour, I know that there has been later correspondence forwarded to the plaintiff which comprised the submissions and the bundle of authorities that have been filed with the Court more recently.  That has been sent, or attempted to have been sent, by facsimile and email and we have been in contact with the service provider in relation to that bundle of documents and we understand that that was delivered on Monday to the plaintiff.  Your Honour, I am not in a position to assert from the Bar table when the plaintiff did or did not receive these documents.

HIS HONOUR:   No, so me receiving the facsimile confirmation is not going to particularly help his – me understanding his problem, and that is he says he did not see the affidavit until 4 o’clock yesterday.

MR MARKUS:   Yes, your Honour.

HIS HONOUR:   Mr Markus, I am not going to string this matter out.  It is important that the applicant have an opportunity to consider your affidavit.  What I propose to do is to adjourn for half an hour, to leave the video link open in which time he can communicate with the interpreter and I expect that half an hour will be sufficient time, subject to anything he has to say, for him to form a view as to whether or not there is anything in the affidavit that causes him a problem.

MR MARKUS:   Yes, your Honour.

HIS HONOUR:   Mr Interpreter, I have not asked you to interpret what I have just said.  What I will do now is adjourn for half an hour and during that time I would – I direct that you assist the plaintiff to the extent he wishes that to occur in understanding the contents of the affidavit on which Mr Markus seeks to rely.  Very well, I adjourn the Court to 12.15.

AT 11.43 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.14 PM:

HIS HONOUR:   Sir, have you now read the affidavit of Louise Buchanan?

MR SERUQARANIVALU (through interpreter):   Yes, your Honour.

HIS HONOUR:   Do you have any objection to that affidavit?

MR SERUQARANIVALU:   In paragraph 11 they denied me fairness when they made the decision on 2 May 2006 refusing me the grant of a Partner visa under the (Class UK) and Partner (Residence) (Class BS) given the fact I met and satisfied one of the primary category required to grant the visa.  On the documents on 14 May I have notified them on that date that I had – my son was sick and I was in hospital attending to his welfare and condition because he was admitted and I was asking for extension of time and they denied me and they did not give me the extension of time. 

That is why I am showcasing – in my showcase in my REMS 1/REMS 2 that I am on my affidavit that I am producing – the Department’s unfairness to grant me these visas on UK.  It was also on financially – financially hardship.  I was asking for extension of time and they did not grant me an extension of time.  That is in paragraph 14 and 11 on there.

HIS HONOUR:   Very well.  I propose to read that affidavit.  I have heard what you have said about it.  Is there anything else you want to say in support of your application?

MR SERUQARANIVALU:   Your Honour, just my movements.  I notified the Department and the service provider that I would – because it is High Court and I would like to appear in Court, not by video link – in person because I have my support and my resources back in New South Wales and that makes me disadvantaged and when they move me around they are cutting my lifeline away.  I could not – my textbooks, my law books that I had with me and which my wife has provided to help me, to grant – legitimately get help in my status, doing my status myself since we have financially hardship and since finding – she is very emotionally distressed.  She just brought me a new suit from David Jones and the service provider has lost it along the way.  They lost my textbook and half of my paperwork has been misplaced.  That brings me disadvantage to appear in person.  I do not have any representative and I am doing this on my own.  It took me 11 months to put my paperwork together to appear in court. 

HIS HONOUR:   Sir, I have read your paperwork ‑ ‑ ‑

MR SERUQARANIVALU:   Yes.

HIS HONOUR:   ‑ ‑ ‑ and I have read your written submissions as well as read your affidavits.  This is your opportunity to say anything in addition to that paperwork.

MR SERUQARANIVALU:   That is why I am applying – appealing for to be granted leave so I can be closer to my resources, especially my wife and my kids.  She is emotionally distressed.  I have got a son who is admitted – who went off track just last month.  He is in juvenile detention centre.  No father would let – I did not rear my son up to end up in that situation.  In these kind of circumstances I have been away – it is almost three years I have been in detention and I want to be granted leave. 

My past – I know that I have a past history in immigration history.  There is history.  I am looking forward to fix my status up in a better way, legitimate way.  Now, if I have been granted leave I will oblige with every circumstances the condition of the leave, just to be with my wife.  We are having difficulties.  My daughter just started school.  That is why I am appealing for leave, so I can put my case together and come up really professionally. 

I have done everything but at the moment on my – my son did - my glasses – I have got bad eyesight, your Honour, and when they moved me – I have been handcuffed all the way.  I have not been so darn low in my life.  I have been dragged all the way from Melbourne, from Sydney, Melbourne and here in an aeroplane handcuffed.  I do not know what is the difference between detention and correctional – I have been trying to – the service providers have lost most of my documents, misplaced my court clothes.  I am sorry I did not appear professionally well dressed up in court today because I had to ask for clothes in the detention centre just to come in with respect – to respect the Court.

HIS HONOUR:   What I want you to focus on, sir, is the application you have made to this Court.  Is there anything further you want to say in support of that application?

MR SERUQARANIVALU:   Just everything I have provide – from REMS 1 to REMS 4 – 1, 2, 3 and 4.  Those are my claims on the fairness of the judicial error the Department has made me disadvantaged from 2006.  That is all I am trying to put forward – contesting their affidavit – so paragraph 11 and 14, 12 and 14.

HIS HONOUR:   Yes, very well.

MR SERUQARANIVALU:   On 2 May bring back to my affidavit on paragraph 9 that I was denied fairness on those grounds.  When I put in my application I mentioned my son – and that is the primary applicant and that is (Class BS) and the (Class UK) of the Partner (Residence) and Partner (Residence) (Class BS) and UK.  It says that justice for his failure to consider that the best interests of my child as a primary consideration in breach of the United Nations Convention on the Rights of the Child.

HIS HONOUR:   I am sorry, sir.  You are reading this from somewhere.  Where are you reading it from?

MR SERUQARANIVALU:   From my affidavit.

HIS HONOUR:   Yes.

MR SERUQARANIVALU:   I am contesting 11 at paragraph 5 of the second affidavit.

HIS HONOUR:   Thank you.

MR SERUQARANIVALU:   It is that – I am looking at – when looking at my affidavit on number 10 they did not look on the fairness of the primary applicant, which is my son.  I provide that to them.  I was - due to the documents and the finance on paragraph 14 of the affidavit they did not give me extension of time.  I notified them but they did not note it on the affidavit.  I notified them by phone because when I received the letter it was sent to wrong address and I did not have time to appear.  I was asking for extension of time so I can appeal it and work on the finance because I was finding financial difficulties due to my son was in hospital in Mildura.  He

was admitted into hospital in Mildura and they did not give me extension of time to appeal the case. 

HIS HONOUR:   Is there anything else you want to say?

MR SERUQARANIVALU:   No, your Honour.

HIS HONOUR:   Thank you very much. 

MR SERUQARANIVALU:   Thank you, sir.

HIS HONOUR:   You can take a seat now.  Mr Markus, I do not need to hear from you.

MR MARKUS:   Thank you, your Honour.

HIS HONOUR:   The plaintiff is a national of Fiji whose application for Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visas was refused by a delegate of the Minister then administering the Migration Act 1958 (Cth). That refusal was on 2 May 2006.

By an application for an order to show cause filed in the original jurisdiction conferred on this Court by section 75(v) of the Constitution on 28 March 2014, the plaintiff seeks constitutional writs for the judicial review of that refusal decision made on 2 May 2006. The effect of section 486A of the Migration Act is relevantly to require an application to this Court for a remedy in relation to a decision to refuse a visa to be made within 35 days of the date of that decision. The effect of amendments to the Act, introduced in 2009, is that decisions made before 15 March 2009 are treated as if they were made on that date. The plaintiff’s application was therefore made almost five years out of time. Nevertheless, under section 486A(2) of the Migration Act this Court may extend the time for the making of the application if satisfied that it is necessary in the interests of the administration of justice.

The plaintiff has filed two affidavits in support of his application for an order to show cause, one filed on 28 March 2014 and the other filed on 4 December 2014.  The plaintiff’s first affidavit explains his failure to make an application within the relevant time on the basis that he did not receive notice of the decision.  The plaintiff states that had he been aware of the decision he would have made an application for merits review.  The plaintiff’s second affidavit discloses, however, that a person helping him contacted the Department of Immigration to inform the Department that the letter giving notice of the decision bore an erroneous postcode.  An affidavit filed on behalf of the Minister on 4 February 2015 further discloses that the applicant in fact lodged an application, albeit an invalid application, for review to the Migration Review Tribunal, that application having been made on 29 May 2006.

Turning to the merits of the application, the grounds on which the plaintiff seeks to challenge the decision of the delegate are that he was denied procedural fairness because he satisfied one of the primary criteria for the grant of the visas, that he was denied procedural fairness because the interests of his children were not taken into account as a primary consideration and that the delegate constructively failed to exercise jurisdiction.  I am not satisfied that any of those grounds provide an arguable basis for the existence of jurisdictional error on the part of the delegate.

In relation to the plaintiff’s complaints that he has been denied procedural fairness, it is sufficient to note that the grant of the visas for which he applied was contingent on the satisfaction of all of the relevant criteria and not merely the satisfaction of one criterion.  In relation to his complaints about the best interests of his children not being taken into account, the decision record states that the plaintiff made no response to letters requesting information about children and, indeed, that there was no evidence before the delegate that the plaintiff or his nominating spouse had dependent children.  His claim that the delegate constructively failed to exercise jurisdiction is not particularised and requires no elaboration. 

The length of the plaintiff’s delay, the lack of a satisfactory explanation for that delay and the lack of merit in the plaintiff’s legal claim make plain that it is not necessary in the interests of the administration of justice to extend the time for the making of the application to this Court.  In those circumstances I order that the plaintiff’s application for an order to show cause be dismissed.

Do you seek costs, Mr Markus?

MR MARKUS:   Yes, your Honour.

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

AT 12.30 PM THE MATTER WAS CONCLUDED