SZTDF v Minister for Immigration and Border Protection & Anor
[2016] HCATrans 35
[2016] HCATrans 035
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S300 of 2014
B e t w e e n -
SZTDF
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
REFUGEE REVIEW TRIBUNAL
Second Defendant
GAGELER J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON MONDAY, 15 FEBRUARY 2016, AT 10.14 AM
Copyright in the High Court of Australia
SZTDF appeared in person.
MR A. MARKUS: If your Honour pleases, I appear for the first defendant Minister, who is the applicant to the summons. (instructed by Australian Government Solicitor)
BALASINGAM PRABAKARAN, sworn as interpreter.
HIS HONOUR: Mr Markus, this is your application.
MR MARKUS: Yes, thank you, your Honour. Your Honour, I should just note that on 11 February our office has received a communication by way of a facsimile from the plaintiff which I think has also been forwarded to the Court whereby the plaintiff indicates that he seeks a vacation of today’s hearing date. Your Honour, our position is to oppose that application insofar as your Honour is treating it as an application having been made.
HIS HONOUR: Very well. It may be best if that communication is tendered so it forms an exhibit.
MR MARKUS: Yes, thank you, your Honour. Can I formally tender a copy of a facsimile addressed to our office and to the Registrar of this Court, dated 11 February.
HIS HONOUR: Yes, that will be received and marked as Exhibit A.
MR MARKUS: Thank you, your Honour.
EXHIBIT:Exhibit A…..Facsimile dated 11 February addressed to Australian Government Solicitor and the Registrar of the High Court
HIS HONOUR: Mr Markus, I take it that you oppose that application?
MR MARKUS: Yes, your Honour.
HIS HONOUR: Very well. If you sit down for a moment, I will ask the plaintiff whether he seeks an adjournment of today’s hearing.
SZTDF (through interpreter): Yes, your Honour.
HIS HONOUR: Is the basis on which you seek that adjournment set out in your letter of 11 February?
SZTDF (through interpreter): Yes.
HIS HONOUR: Is there anything else you wish to say in support of your application for an adjournment?
SZTDF (through interpreter): No.
HIS HONOUR: All right. I do not propose to grant that adjournment. Mr Markus, you can proceed.
MR MARKUS: Thank you, your Honour. Your Honour, I seek to formally move on a summons filed on behalf of my client on 9 December and to read the affidavit of Elizabeth Warner Knight affirmed on the same day and filed in support of that summons.
HIS HONOUR: Yes, thank you. I have read that affidavit.
MR MARKUS: Your Honour, very briefly, these proceedings were commenced by the plaintiff on 4 December 2014 and no step has been taken whatsoever since the commencement of the proceedings. The application that was made on 4 December 2014 relates to a decision of the second defendant Tribunal as it then was. Now, I think, your Honour, the functions, or the former functions of the Refugee Review Tribunal are carried out by the Administrative Appeals Tribunal. But the decision was made by the Tribunal as it then was on 21 March 2013.
HIS HONOUR: The 21st or 31st?
MR MARKUS: I am sorry, your Honour, I looked at my submissions which said 21st, but I am just going to check that. Your Honour, the copy of the decision is exhibited to the affidavit of the plaintiff affirmed on 2 December as exhibit A and your Honour is quite correct – 30 May is the date – 30 May 2013.
HIS HONOUR: Yes.
MR MARKUS: I apologise for that, your Honour. I think, your Honour, I looked at the wrong date. The delegate’s decision was made on 21 March 2013.
HIS HONOUR: Yes.
MR MARKUS: The Tribunal’s decision was made on 30 May. There was then an application made for judicial review including an extension of time to the Federal Circuit Court. That application was subsequently refused. Your Honour will see a copy of the reasons for decision exhibited to the same affidavit of the plaintiff as exhibit B. The orders themselves appear as part of exhibit EWK‑2 to the affidavit of Ms Warner Knight.
HIS HONOUR: Yes. There was a refusal to extend time.
MR MARKUS: It is a refusal to extend time, yes, your Honour.
HIS HONOUR: The basis of that refusal, as I understand it, was her Honour’s assessment – principally, her Honour’s assessment of the low prospects of success.
MR MARKUS: Her Honour was not satisfied that a reasonable basis was disclosed for the grant of leave that was sought and, on that basis, her Honour refused the extension of time.
HIS HONOUR: That was before the decision of Justice North in WZAPN.
MR MARKUS: That is correct.
HIS HONOUR: As I understand the application for an order of review as filed in this Court it was based, squarely – indeed, exclusively – on the decision of Justice North.
MR MARKUS: That was the only Crown case, yes, your Honour. We make the point in our submissions that that judgment has been overruled by this Court since that time. But, your Honour, the primary basis for our application is simply the plaintiffs want to prosecute these proceedings.
HIS HONOUR: Yes.
MR MARKUS: Your Honour, on that basis, we ask that your Honour dismiss the application. Your Honour, we are also seeking costs and, in that respect, I would like to draw your Honour’s attention to the letter that was sent to the plaintiff which is at exhibit EWK‑2 of the affidavit of Ms Warner Knight.
HIS HONOUR: The letter of 21 October.
MR MARKUS: Yes, your Honour.
HIS HONOUR: Yes.
MR MARKUS: Your Honour will note that an offer was made to the plaintiff that if he was prepared to consent to orders no costs would be sought. No response has been received from the plaintiff to that communication. Unless your Honour wishes to hear from me further, those are my submissions.
HIS HONOUR: Thank you, very much. Would the plaintiff please stand? You are aware that the application made against you is for your proceeding in this Court to be dismissed.
SZTDF (through interpreter): Yes.
HIS HONOUR: The basis of the application is that you have done nothing in the proceeding since you commenced it on 4 December 2014. Do you want to offer any explanation for your inactivity or do you want to say anything against the application now made?
SZTDF (through interpreter): I really do not know the reasons.
HIS HONOUR: All right. Is there anything more you want to say?
SZTDF (through interpreter): I really do not understand the reasons for dismissing this case.
HIS HONOUR: The reason is based on your inactivity – doing nothing.
SZTDF (through interpreter): I mean I have submitted whatever I can submit together with my application.
HIS HONOUR: Thank you. Please sit down.
On 4 December 2014, the plaintiff filed an application for an order to show cause seeking constitutional writs in the original jurisdiction of this Court in respect of a decision of the Refugee Review Tribunal made on 30 May 2013 affirming a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the plaintiff a Protection (Class XA) visa.
The plaintiff’s application having been filed more than 12 months outside the 35 day period prescribed by section 486A(1) of the Migration Act 1958 (Cth), the plaintiff would require an order extending time pursuant to section 486A(2) were the application to proceed. In an affidavit filed contemporaneously with the application, the plaintiff stated that he was indigent, unemployed and impecunious, and that he was unable to find legal representation throughout the course of his matter. He stated that the application was nevertheless drafted with the assistance of a lawyer.
In breach of the procedural requirements of Part 25 of the High Court Rules 2004 (Cth), the plaintiff has taken no step in the proceeding on the application for an order to show cause since the filing of the application and the accompanying affidavit. Before me now is a summons by the Minister filed on 9 December 2015 which seeks orders that the proceeding be dismissed for want of prosecution and that the plaintiff pay the Minister’s costs of the proceeding. The evidence filed in support of that summons indicates that the Australian Government Solicitor wrote to the plaintiff on 21 October 2015 informing him of his default under the High Court Rules and notifying him of the intention to file the summons now before me and the plaintiff did not respond to that letter.
The plaintiff, who has appeared before me this morning, has offered no explanation for his failure to take any of the procedural steps required by the High Court Rules beyond that which is evident from his description of himself in the affidavit to which I have referred. He has proffered some explanation for his failure to file written submissions in anticipation of the matter today. That explanation was contained in a letter sent to the Registry on 11 February 2016 seeking an adjournment of today’s hearing. The letter indicates that the plaintiff approached an unnamed solicitor on 10 February 2016 to seek assistance but that the solicitor needs time to seek the opinion of counsel before deciding whether or not to act for the plaintiff.
I have refused the plaintiff the adjournment he sought in that letter because I am unable to see any point in prolonging the proceeding by granting that adjournment.
On 19 November 2013, the Federal Circuit Court refused the plaintiff an extension of time in which to bring an application for judicial review of the decision of the Tribunal, essentially on the basis that there would be no utility in granting the extension of time given that the plaintiff had not identified any error on the part of the Tribunal which gave him any prospect of success and that none was apparent on the face of the decision of the Tribunal.
The sole ground of the application for an order to show cause, which the plaintiff went on to file in this Court on 4 December 2014, was that the decision of the Tribunal was erroneous in light of the decision delivered by Justice North on 3 September 2014 in WZAPN v Minister for Immigration and Border Protection (2014) 229 FCR 477. However meritorious that ground might possibly have seemed on 4 December 2014, it has been overtaken by this Court’s decision in Minister for Immigration and Border Protection v WZAPN (2015) 89 ALJR 639.
The sole ground of the application is bound to fail in light of that decision and there is accordingly no basis on which this Court could possibly consider it necessary in the interests of the administration of justice to make an order extending time pursuant to section 486A(2) allowing the application to proceed. The plaintiff thus being grossly in default of the procedural requirements of the High Court Rules, and having no prospect of success on the sole ground of his application were he to be excused from that default, I consider it appropriate to make the orders sought by the Minister in the summons.
The orders I therefore make are:
1.The proceeding commenced by an application for an order to show cause be dismissed on the basis that the plaintiff has failed to prosecute the proceeding.
2.The plaintiff pay the first defendant’s costs of the proceeding.
MR MARKUS: If the Court pleases.
HIS HONOUR: Those are the orders I then make. Thank you.
AT 10.32 AM THE MATTER WAS CONCLUDED
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