SZRSN v Minister for Immigration and Citizenship and Anor

[2013] HCATrans 227

Replacement Transcript

[2013] HCATrans 227

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S82 of 2013

B e t w e e n -

SZRSN

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

Summons for direction

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 24 SEPTEMBER 2013, AT 9.29 AM

Copyright in the High Court of Australia

SZRSN appeared in person.

MS H. YOUNAN:   May it please the Court, I appear for the Minister.  (instructed by DLA Piper Australia)

HIS HONOUR:   I note that there is a submitting appearance by the second defendant. 

MS YOUNAN:   That is correct, your Honour.

HIS HONOUR:   Ms Younan, this is your application. 

MS YOUNAN:   It is, your Honour.  I understand that the plaintiff [INAUDIBLE] written submissions in response to our application and just received [INAUDIBLE] served on the plaintiff and I will just confirm that.  Yes, it has, your Honour.

HIS HONOUR:   The plaintiff has been provided with your written submissions and all of the other documents filed by the Minister in these proceedings.

MS YOUNAN:   Yes, your Honour.  That is my understanding.

HIS HONOUR:   Mr Plaintiff, I propose, subject to anything you may wish to say, to stand this proceeding down for a few minutes to allow Ms Younan to look at the document you have filed this morning.  That is the course that I will take.  The matter will be stood down for 15 minutes.

MS YOUNAN:   May it please the Court.

AT 9.32 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 9.53 AM:

HIS HONOUR:   Yes, Ms Younan.

MS YOUNAN:   Thank you for that indulgence, your Honour.  I am now ready to proceed.  As your Honour may be aware, this is a motion for dismissal of the plaintiff’s application for an order to show cause why certain writs should not issue against the first and second defendants.  Now, in support of this motion I read the affidavit of Katherine Nicole Hooper affirmed on 19 August and filed on the same day, which I understand your Honour should have.

HIS HONOUR:   Right.  You move on the summons of 19 August.

MS YOUNAN:   That is correct.

HIS HONOUR:   Yes, I have that affidavit.

MS YOUNAN:   Further, in support of that summons I seek leave to file today the affidavit of Emily Ramos affirmed on 19 September.

HIS HONOUR:   Is there any objection, Mr Plaintiff, to me receiving that affidavit?

SZRSN:   No, your Honour.

HIS HONOUR:   Very well, you have leave to file that affidavit in Court.

MS YOUNAN:   Thank you, your Honour.

HIS HONOUR:   Now, you read those two affidavits?

MS YOUNAN:   I do, your Honour.

HIS HONOUR:   Mr Plaintiff, you have copies of the affidavit of Katherine Hooper and the affidavit of Emily Ramos.

SZRSN:   Yes, your Honour.

HIS HONOUR:   I propose to read those affidavits and take them into account, subject to any objection you have to them.  Do you have any objection?  You are shaking your head, the answer is no.  Thank you.  Very well, I read those affidavits.  You will have to allow me a moment to read the affidavit you have just filed in Court.  Yes, thank you, I have read those affidavits.

MS YOUNAN:   Thank you, your Honour.  Your Honour, the starting point of our application is really the Tribunal’s decision ‑ ‑ ‑

HIS HONOUR:   I should just take into account the evidence of the plaintiff, if any.

MS YOUNAN:   Yes, your Honour, I will draw that to your attention now, if that is convenient.

HIS HONOUR:   Yes, perhaps that would be best.  If I receive it into evidence first it would be preferable.

MS YOUNAN:   Yes, your Honour.

HIS HONOUR:   Yes, go ahead.

MS YOUNAN:   Thank you, your Honour.  In support of the plaintiff’s application, the plaintiff has filed an affidavit on 18 April of this year.  Now, that affidavit essentially repeats the grounds and the orders sought in the plaintiff’s application.  There is a supplementary affidavit filed on 27 June in which the plaintiff seeks an enlargement of time and he explains his reasons for so doing.

HIS HONOUR:   Yes.

MS YOUNAN:   They are essentially that he was not aware that he could file an appeal against the Tribunal’s decision and, secondly, that he did not receive the Tribunal’s decision until April of this year.  There was a further affidavit filed on 16 September which was essentially a retraction of the claim that the plaintiff was not aware that [INAUDIBLE].

HIS HONOUR:   The appeal to which you refer is the “appeal” from the Tribunal to the Federal Court.

MS YOUNAN:   Precisely, your Honour, the appeal as the plaintiff describes it, but, in effect, the application for judicial review.

HIS HONOUR:   Yes.  Mr Plaintiff, you wish me to take into account the affidavits that you have filed in these proceedings?

SZRSN:   Yes.

HIS HONOUR:   Well, I propose to read those affidavits.

MS YOUNAN:   We do not object in form to them.

HIS HONOUR:   Very well.  Yes, Ms Younan.

MS YOUNAN:   Your Honour, the starting point is the decision of the delegate of the Minister on 18 October 2010. That was a decision to cancel the visa of the plaintiff on character grounds; specifically on the basis that the plaintiff had a “substantial criminal record”, as that phrase is defined in section 501(6) of the Migration Act.  The plaintiff then applied for review of that decision to the Tribunal and if your Honour turns to exhibit A of Ms Hooper’s affidavit your Honour will there find the application for review of that decision.

HIS HONOUR:   Yes.

MS YOUNAN:   The reasons for the plaintiff’s application are contained at page 7 of that affidavit and that is a letter handwritten by the plaintiff.  Essentially the plaintiff asks for a second chance or a last chance and draws attention to the fact that he has immediate family in Australia as well as three small children in Australia and that is a letter contained at pages 7 to 9 of that affidavit.

HIS HONOUR:   So he is a father of three Australian children?

MS YOUNAN:   Yes, your Honour.  Subsequently the Tribunal affirmed the decision under review, importantly on 21 December 2010, and that is found at exhibit B.  That decision is found at exhibit B to the affidavit, page 21 of the affidavit.  If I could take your Honour through the Tribunal’s decision.  The Tribunal very clearly acknowledges at paragraph 13 that in exercising the discretion, the relevant discretion, the decision‑maker must apply Direction No 41, ministerial direction, which contains a number of primary and other considerations.  Over the page at paragraph 14 the Tribunal identifies the primary considerations which include at paragraph 1(d)(i):

the best interests of the child, as described in the Convention on the Rights of the Child –

Importantly at paragraph 16 the Tribunal makes a finding that the primary considerations relevant in the plaintiff’s case include “the best interests of his children”.  Subsequently in considering that primary consideration at paragraph 40 onwards, the Tribunal acknowledges that under Australian law it is generally presumed that a child’s best interests will be served if the child remains with its parents.  The Tribunal then considers that there are a number of factors which inform that consideration. 

At paragraph 43, on the basis of the evidence that was presented before the Tribunal, the Tribunal finds it is unlikely that a strong parental bond will have been established with the plaintiff’s youngest daughter, who was 11 weeks at the time that the plaintiff was arrested.  The Tribunal then points to the scarcity of evidence regarding the relationship with the plaintiff’s children.  The Tribunal comments or observes that it is difficult to know how the children perceive their father or what the relationship is – the nature of their relationship is with him and what effect separation will have. 

Finally, at paragraph 44 the Tribunal accepts that a child’s best interests will generally be served by the child remaining with its parents.  The Tribunal notes that there is little evidence and that “lack of evidence makes any specific finding impossible”.  However, it does accept that the best interests may be served by their having at least access to their father which will be more difficult if he is returned to New Zealand.  The Tribunal then ultimately weighs the primary considerations, concluding at paragraph 54 that, notwithstanding the primary consideration of the best interests of the children, that consideration is outweighed by the:

need to protect the Australian community against the risk of further serious crime. 

So that is the basis upon which the Tribunal disposes of the matter.

HIS HONOUR:   Yes.

MS YOUNAN:   The plaintiff then sought a review in the original jurisdiction of the Federal Court.  Now, that is found at exhibit A of the affidavit of Emily Ramos.

HIS HONOUR:   The application.

MS YOUNAN:   The plaintiff applied for an extension of time to file a notice of appeal.  This was done on 9 February 2011.  This is at page 11 of the affidavit.  The plaintiff there acknowledged one of the questions of law raised which included the Tribunal’s treatment of the best interests of the children and the plaintiff claimed that the Tribunal failed to consider his right to be with his children.  That is at page 16 of the affidavit.

HIS HONOUR:   Yes.

MS YOUNAN:   There was then a subsequent application under the Migration Act under section 476A on 23 May 2011 and in that application essentially the ground was that the plaintiff took issue with the Tribunal’s finding that there was no strong parental bond with his youngest daughter.

HIS HONOUR:   It was the application under section 476A that was dealt with by Justice Katzmann, is that right?

MS YOUNAN:   Essentially, your Honour, yes.

HIS HONOUR:   When you say “essentially”?

MS YOUNAN:   Well, the original application was an application to extend time and then the subsequent application was the substantive application for judicial review.

HIS HONOUR:   Yes.

MS YOUNAN:   Subsequently, there were two submissions in support of this application, one on 10 June and the subsequent one on 16 June.  Now, in the submission on 10 June – and this is at page 17 of the affidavit of Emily Ramos – the plaintiff accepts that the Tribunal considered the best interests of the children after taking into account the various factors in Direction No 41.  This is at paragraph 14 of those submissions.  Then subsequently, in the submissions of 16 June, the plaintiff takes issue with the weighing up of the primary considerations and suggests that the Tribunal’s conclusion at paragraph 54 [INAUDIBLE] that at first was contained in submissions of the plaintiff and then formally by way of amended application as a ground of the application.

At the time of the hearing, that was the only ground that was maintained and all other grounds were abandoned.  As I have indicated, your Honour, the Federal Court dismissed the application.  That can be found at exhibit D.  That decision can be found at exhibit D of the affidavit of Ms Hooper.

HIS HONOUR:   Yes, I have read that decision.

MS YOUNAN:   Thank you, your Honour.  The court held that:

The tribunal correctly identified the relevant primary considerations as –

amongst others, the best interests of the plaintiff’s children - that is at paragraph 35 of the decision – and acknowledged, at paragraph 51, the Tribunal’s acceptance that the best interests of the children in fact told in favour of the plaintiff but nevertheless was outweighed.

This brings us to the present application, your Honour. The plaintiff now brings in this Court’s original jurisdiction under 75(v) of the Constitution an application seeking writs of prohibition and mandamus directed to the Minister and a writ of certiorari directed to the Tribunal on the ground that, essentially – and there are several grounds stated but they amount to this – that in affirming the decision of the delegate to cancel the visa, the Tribunal denied the plaintiff procedural fairness by failing to consider the best interests of his children as a primary consideration, which consideration he says grounds a legitimate expectation on his behalf.

On that basis, your Honour, we say that the application brought today is an abuse of process and as such the Court should exercise its discretion to dismiss the proceeding.  We say that the application is essentially an attempt to litigate anew a matter that has already been disposed of by an earlier proceeding.

HIS HONOUR:   Now, in that respect I have read your written submissions.  Is there anything you want to add to those submissions?

MS YOUNAN:   Your Honour, my oral submissions do not go any further than my written submissions.

HIS HONOUR:   Yes, thank you.  Mr Plaintiff, you have seen the written submissions prepared by Ms Younan and you have provided me with your own written submissions today.  Is there anything you wish to add to your written submissions?

SZRSN:   No, your Honour.  What is there in front of you that is the submission that I am going on.

HIS HONOUR:   Yes, thank you.  Just allow me a moment to look again at your written submission.  There is nothing more you wish to say?

SZRSM:   No, your Honour.

HIS HONOUR:   Thank you.  I do not need to hear from you further, Ms Younan.

There is before me an application by the Minister for Immigration, Multicultural Affairs and Citizenship for the summary dismissal of a proceeding commenced by an application for an order to show cause in the original jurisdiction of the High Court under s 75(v) of the Constitution. The Minister, who is described in the application for an order to show cause as the Minister for Immigration and Citizenship, is the first defendant. The second defendant is the Administrative Appeals Tribunal, which has filed a submitting appearance.

The background facts are as follows. The plaintiff is a citizen of New Zealand with an extensive criminal record. He arrived in Australia on 13 July 1995 as a minor with his mother and was granted a temporary visa which allowed him to reside in Australia indefinitely. He became the father of three Australian children. His visa was cancelled by a delegate of the Minister on 19 October 2010 on the grounds that he did not pass the character test under s 501 of the Migration Act 1958 (Cth). On 21 December 2010, the Tribunal affirmed the Minister’s decision. An application for judicial review of the Tribunal’s decision under s 476A of the Migration Act was heard and dismissed by the Federal Court, constituted by Katzmann J, on 17 June 2011.

The sole ground pressed at the hearing of the application for judicial review before the Federal Court, which was rejected by Katzmann J, was that in weighing up the considerations of the best interests of the child and the protection of the Australian community from serious crimes, the Tribunal adopted a process of reasoning which was illogical or irrational and that this amounted to an error of jurisdiction on the part of the Tribunal.  Other grounds were included in the application for judicial review as filed but were not proceeded with at the hearing.  

On 10 April 2013, the plaintiff commenced the present proceeding by which he seeks certiorari to quash the decision of the Tribunal and prohibition directed to the Minister to restrain the Minister from removing the plaintiff from Australia.

The essential basis on which the plaintiff seeks the relief which he now seeks in the original jurisdiction of this Court is that the Tribunal denied him procedural fairness in not considering the best interests of his children as a primary consideration.  This, he now claims, was at least the principal jurisdictional error of the Tribunal.  The grounds set out in the plaintiff’s application for an order to show cause are directed in various ways to that central claim.

It is apparent that the plaintiff’s present application seeks to agitate a claim which overlaps with, and is at least to some extent inconsistent with, the ground pressed on his behalf in the application for judicial review which has been heard and determined by the Federal Court.  The plaintiff did not seek to appeal from the decision of Katzmann J. 

The plaintiff has filed an affidavit in which he says, amongst other things, that it was due to a brain injury that he could not recall having sought judicial review of the decision of the Tribunal in the Federal Court at the time of filing his application for an order to show cause in this Court.  He says that he really did not know the process and does not know what was being done by the people who were helping him at the time.  He was, however, represented by counsel at the hearing before the Federal Court and he does not suggest that his legal representatives acted otherwise than on his instructions.

The Minister’s application for summary dismissal falls in these circumstances to be dealt with by reference to principles recently stated by me in Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676; 279 ALR 560; [2013] HCA 22. Absent perhaps most exceptional circumstances, a proceeding commenced in the original jurisdiction of the High Court seeking constitutional writs consequential on an alleged error of jurisdiction in a decision which has already been the subject of judicial review in another court will be an abuse of the process of the High Court. Nothing in the circumstances of the present case takes it outside the ordinary operation of those principles.

The application is, in my view, an abuse of the process of this Court and will be dismissed under r 27.09.4(c) of the High Court Rules.  Accordingly, I make the following orders:

1.The name of the first defendant be amended to the “Minister for Immigration and Border Protection”.

2.The plaintiff be hereafter identified by the pseudonym “SZRSN”.

3.The plaintiff’s application for an order to show cause filed on 18 April 2013 be dismissed.

Do you seek costs, Ms Younan?

MS YOUNAN:   Yes, we do, your Honour.

HIS HONOUR:  

4.The plaintiff pay the costs of the first defendant.

Those are the orders I make.  The Court will now adjourn.

AT 10.18 AM THE MATTER WAS CONCLUDED