SZTOV v Minister for Immigration and Border Protection & Ors

[2015] HCATrans 159

[2015] HCATrans 159

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S260 of 2014

B e t w e e n -

SZTOV

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 23 JUNE 2015, AT 9.31 AM

Copyright in the High Court of Australia

MR S.E.J. PRINCE:   If the Court pleases, your Honour, I appear for the plaintiff.  (instructed by Westside Legal)

MS A.M. MITCHELMORE:   If the Court pleases, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, Mr Prince.

MR PRINCE:   Thank you, your Honour.  The matter comes before the Court on the return of an application for an order to show cause.  The proposed directions in relation to the matter are set out in the submissions which have been filed together with the summons bringing the matter on.  The first respondent’s submissions filed on 29 May 2015 propose a narrower set of directions but also, in the alternative – or really I suppose as their primary submission – that the application for a show cause order be dismissed.  In my submission, it would be premature and wrong to dismiss the application for an order to show cause at such an early stage. 

This case is about a refusal of an adjournment by Judge Emmett in the Federal Circuit Court which his Honour found to involve error, the immediate proceeding to hearing of a show cause application to dismiss the application by her Honour in the absence of legal representation and in the shadow of the decision which his Honour below correctly found was in error in circumstances where that application – albeit the dismissal of the proceedings by her Honour in those circumstances was done obviously without a trial, without any evidence being before the court, without there being a green book, without the normal processes or procedures of dealing with these matters at first instance having been adopted.

So it was in that context that the matter came before Justice Flick.  His Honour, in my submission, again correctly, dealt with the error in the decision to refuse the adjournment to allow legal representation which was imminent.  His Honour then dealt with the second part of the appeal against the second decision on the same day dismissing the proceedings and, principally – and not only dismissed the appeal but refused to grant leave to appeal.

Obviously, the decision of her Honour striking out the matter summarily was an interlocutory decision and the Rules provide for that to be so, and, of course, that is what necessitated the obtaining of leave before his Honour Justice Flick to the right of appeal.  That interlocutory decision, although clearly it was effectively a final decision, ought to have been the subject of a grant of leave and his Honour misdirected himself on issues of the test to be applied in granting leave below and fundamentally engaged in the wrong – sorry, a process which was not the exercise of his Honour’s appellate jurisdiction.

HER HONOUR:   Mr Prince, if I may interrupt you for a moment.  I understand that the first defendant, the Minister, asserts that, correctly understood, his Honour uncontroversially applied the principles in Décor v Dart and directed his attention to whether refusal of the leave would result in substantial injustice.  Now, I appreciate there may be an issue between the two of you about that matter, but if I could just come back to the criticisms that are made by the Minister of the breadth of the grounds of relief that you claim.

MR PRINCE:   Yes, your Honour.

HER HONOUR:   If the matter were to be stood over for hearing, that is, if I decline to grant the principal relief that the Minister seeks in his submissions, an issue would arise concerning what it is that I have before me and there are some criticisms that on the face of them seem to have some merit concerning the drafting of the application for an order to show cause.  Have you given thought to that, Mr Prince?

MR PRINCE:   Yes, I have, your Honour.  Indeed, some of the same criticisms have arisen in some other cases which have been occasioned by this statutory regime which effectively prevents an application for special leave to appeal in what is really an appellate decision but is styled a refusal to grant leave.  So those grounds in the other cases have been put to one side because they are only there so that we cannot be accused on an Anshun basis of not having included all the arguments that we want to make.  For instance, I accept that if we are successful ‑ my client is successful in obtaining relief in a judicial review ‑ on a judicial review basis against Justice Flick, the constitutional issues do not arise and the issue about special leave just does not arise ‑ ‑ ‑

HER HONOUR:   Yes, exactly.

MR PRINCE:   ‑ ‑ ‑ and the matter can be dealt with in short order, really.  Those issues, in my submission, could be reserved so that they did not need to be dealt with in a principal hearing.  The only reason I am a little hesitant about that is because in the past separation of matters can sometimes lead to other problems down the track, and the arguments probably would not take up that much more time. 

But the argument is that it may be better that the issue of special leave could be dealt with by an application to extend time for special leave if my client is unsuccessful in the judicial review application and then those arguments could be made, but I wanted to avoid any multiplicity of litigation.  That is the special leave point, your Honour.  I think that is grounds ‑ ‑ ‑

HER HONOUR:   Well, there is no small difficulty in these proceedings in the claims for relief that include the grant of special leave in paragraph 4 and ‑ I am sorry, the grant of leave to file the application for special leave in paragraph 4 and the grant of special leave in paragraph 5.

MR PRINCE:   Yes.

HER HONOUR:   Now, what avenues might be open to your client - in the event this application were not successful is a matter for you, Mr Prince, but on the face of it there are lively procedural problems attending some of the relief that is claimed.

MR PRINCE:   Yes, I understand that, your Honour.

HER HONOUR:   If the matter were to be listed for hearing it would be desirable that it was clear what was listed for hearing.

MR PRINCE:   Yes, your Honour.

HER HONOUR:   Now, I think you accept, Mr Prince, in light of the discussion in Edwards v Santos that the relief that you claim in – indeed, really, in the first order, that is in paragraph 1, would give you all that is sought.

MR PRINCE:   Yes, it would dispose of the proceedings; quite, yes.

HER HONOUR:   Yes.

MR PRINCE:   And it would put the matter back on a track that would not require any of these matters to be dealt with.

HER HONOUR:   Yes.

MR PRINCE:   Your Honour, there was a second category of additional claim.

HER HONOUR:   Yes, that was the claim ‑ ‑ ‑

MR PRINCE:   For a writ of certiorari directed to the second defendant.

HER HONOUR:   Yes.

MR PRINCE:   The criticism is made of that, that it is somehow inconsistent with the position that we are taking, but it is not because this Court, unlike the Federal Court, does have original jurisdiction to deal with judicial review of decisions of the underlying proceedings.  It would actually short circuit the whole of the issue about Justice Flick’s decision on one view if there was simply a judicial review of the second defendant’s decision in this Court.  The reason I say that that is not an abuse of process is because there has never been a hearing of the application for judicial review of the Tribunal’s decision.

HER HONOUR:   Then why should there not be a hearing in the ordinary course if that submission is successful, Mr Prince?  If you get the relief that you claim in your first order then, surely, the answer to that is for the matter to be dealt with in the ordinary course below.

MR PRINCE:   Well, if we get the first order, your Honour, that leads us back into the position where there is an application for leave to appeal from Judge Emmett’s second decision ‑ ‑ ‑

HER HONOUR:   Indeed, which should be dealt with in the ordinary course, surely?

MR PRINCE:   In the Federal Court, that is right.

HER HONOUR:   Yes.

MR PRINCE:   So what that would mean would be that if the plaintiff were then successful in that proceeding in the Federal Court all that could possibly result in, because of the nature of the appeal and the decision from which the appeal is brought, is the remitter of the matter back to the Federal Circuit Court ‑ ‑ ‑

HER HONOUR:   Indeed.

MR PRINCE:   ‑ ‑ ‑ to ultimately do exactly what could be done by this Court in the original jurisdiction in a thrice.  So that is why that order was put there – that application was put there.

HER HONOUR:   Yes, on the face of it, it is somewhat inconsistent with the relief that is claimed in order 1.

MR PRINCE:   Yes, it is a true alternative, really, to the relief sought in order 1.  So, again, I am content for that to be put to one side because the relief in order 1 would not preclude that matter from being agitated some point down the track if that is the way it went.

HER HONOUR:   I will hear from Ms Mitchelmore.

MR PRINCE:   Yes, your Honour.

MS MITCHELMORE: Yes, your Honour, just addressing the issues of relief. Of course, the Minister’s primary position, as set out in the written submissions, is that the application should be dismissed, but if I can focus on what your Honour has put this morning? Looking at the relief claimed on page 2 of the application for an order to show cause, orders 3 to 5 which deal with the question of the validity of section 33(4B) of the Federal Court of Australia Act and then the subsequent orders relating to special leave, as I have said in my written submissions the Minister contends that the relief that the plaintiff is seeking in paragraphs 1 and 2 of the relief sought as to which the first defendant’s position is there is no merit, but they would seem comprehensively to address the applicant’s concerns with the decision.

The applicant has not advanced any additional grounds that would be the subject of a special leave application, apart from what has been advanced in relation to the grounds that are advanced in this application and, in my submission, in those circumstances the Court would not be entertaining the application for relief in paragraphs 3 to 5.

Insofar as my friend has said this morning that he accepts that if his application succeeds as to paragraphs 1 and 2, the special leave application matters do not arise, in my submission, on the flipside, if he does not succeed that is because there has been a determination on the merits of those matters, and that would not be a basis on which a special leave application would probably be made, in my submission.  So, for those reasons, in my submission, paragraphs 3 to 5 should not proceed if the matter is to proceed to a show cause.

HER HONOUR:   What should happen to them?

MS MITCHELMORE:   Well, in my submission, your Honour could limit the basis on which the matter proceeds to a show cause, as I have set out in the first defendant’s proposed directions.

HER HONOUR:   Yes.  In the event the matter were to be listed for hearing, you submit it should be listed for hearing on orders 1, 2, 8 and 9 alone?

MS MITCHELMORE:   Yes, and the balance should be dismissed, in my submission.  Similarly, your Honour, in relation to paragraphs 6 and 7, which is the relief that is sought in relation to the decision of the Tribunal, in my submission, it is problematic for the reasons that your Honour has put to my friend this morning.  They seek to review the underlying decision in circumstances where that decision is the subject of the decision that is the primary basis of challenge in the application to show cause.

I would note further, your Honour, that no grounds have been advanced in the application in support of relief as to paragraphs 6 and 7, other than an assertion in paragraph 6 that the decision of the second defendant – that might be actually the Federal Court’s decision – no, that is the decision of the Tribunal; it is an assertion that it is attended with jurisdictional error but it is not particularised and, in my submission, nothing arises on the show cause application that would warrant that being referred for hearing by your Honour.  If the Court pleases.

HER HONOUR:   Thank you.  Ms Mitchelmore, just in formal terms, if the matter were to be stood over for hearing, limited in the way you propose, the balance of the claims for relief that are the subject of objection might be dealt with at the conclusion of that hearing in the sense – you submit that the appropriate course is dismissal ‑ ‑ ‑

MS MITCHELMORE:   Yes.

HER HONOUR:   Do you invite me to do that today?

MS MITCHELMORE:   Well, your Honour could dismiss them at the conclusion of the proceedings.  I do not have a difficulty with that, so long as ‑ ‑ ‑

HER HONOUR:   Procedurally, that might have some advantages, Ms Mitchelmore.

MS MITCHELMORE:   Yes, I understand.

HER HONOUR:   Yes.  Yes, Mr Prince.

MR PRINCE:   Yes, your Honour ‑ ‑ ‑

HER HONOUR:   I am sorry, Mr Prince, I should just take another matter up with Ms Mitchelmore.

MR PRINCE:   Of course, your Honour.

HER HONOUR:   Ms Mitchelmore, I understand the Minister’s principal position is ‑ just bear with me a moment – I think I am right in describing it as the principal submission is that the application to show cause should be dismissed?

MS MITCHELMORE:   That is correct, your Honour, yes.

HER HONOUR:   And you have developed the reasons for that in the written submissions that were filed on 29 May last.

MS MITCHELMORE:   Yes.

HER HONOUR:   Is there anything you wish to add to those?  I am minded to not accede to that application but to set the matter down.  Is there anything you wish to put further to dissuade me?

MS MITCHELMORE:   Well, as your Honour put to my friend this morning, the Minister’s primary position is that the test for leave, namely, the two limbs of the test in Décor were considered by his Honour and his Honour focused in particular on the second limb, there needs to be substantial injustice, and the Minister’s position is that his Honour’s decision was entirely within jurisdiction and there is no error in this application, yes, but I hear what your Honour says.

HER HONOUR:   Thank you.  Yes, Mr Prince, you would understand from that exchange I am minded to list the matter for hearing in respect of the claims for relief sought in paragraphs 1, 2, 8 and 9 alone of the application to show cause.

MR PRINCE:   Yes, your Honour.

HER HONOUR:   Now, is there anything further you want to put to me?

MR PRINCE:   No, your Honour.  Your Honour, to the extent it makes a difference, can I express my client’s preference for the procedural course that your Honour proposed, which is that the balance be dealt with at the conclusion of that hearing?

HER HONOUR:   Yes, but just so it is clear, Mr Prince, the hearing is confined to the orders sought in those paragraphs.

MR PRINCE:   Yes, your Honour, I understand that.

HER HONOUR:   Yes, all right.  Now, just in terms of dates, I had it in mind to list the matter, if it is convenient to counsel, in the week commencing 27 July.  Is that convenient?  Is there a date in that week that is convenient to the both of you?

MR PRINCE:   Your Honour, I am in London that week.

HER HONOUR:   I see.  Well, that presents some difficulties, Mr Prince.

MR PRINCE:   I could not even appear before you from Katoomba, your Honour.

HER HONOUR:   Well, we will try again.  When do you leave for London, Mr Prince?

MR PRINCE:   On the 27th, your Honour.

HER HONOUR:   The 27th.

MR PRINCE:   I am only gone for a week or so.  I am back in Australia on the evening of 6 August.

HER HONOUR:   The Court’s August sittings begin on 3 August, so another alternative would be for it to go over to the week beginning 17 August.  Alternatively, the other possibility would be Wednesday, 22 July.  I see – I think that presents difficulties for you, Ms Mitchelmore.

MS MITCHELMORE:   It does, your Honour, yes.

HER HONOUR:   Well, Ms Mitchelmore, does the week of 17 August ‑ is that too far hence?

MS MITCHELMORE:   No, your Honour, it seems to be convenient, in the circumstances.

HER HONOUR:   Do you have any dates in that week?

MS MITCHELMORE:   Yes, I can do 19 August.

MR PRINCE:   That is suitable to me, your Honour.

HER HONOUR:   Very well.  It sounds as though we should set the matter down for hearing on 19 August.

MS MITCHELMORE:   Thank you, your Honour.

HER HONOUR:   Now, Mr Prince, the Minister proposes directions in terms that you file any written submissions on or before 4.00 pm, 10 working days before 19 August.

MR PRINCE:   Yes, that is suitable, your Honour.

HER HONOUR:   Is that suitable?

MR PRINCE:   Yes, your Honour.

HER HONOUR:   And you seek an order that the – just bear with me a moment – I am just trying to turn up your summons for direction – yes, that the appeal book before Justice Flick stand as evidence in the proceedings.

MR PRINCE:   My friend tells me that there was not an appeal book.  There was not a green book at first instance, so it is likely there was not an appeal book.

HER HONOUR:   Yes.  I think his Honour approached it on the basis that the – his Honour had the reasons of the Tribunal before him and I understood from something, but I have probably not read the judgment with the same care that you have, Mr Prince, that his Honour considered that that provided an adequate basis for the challenges that were being advanced.

MR PRINCE:   I think that is right, your Honour.  That is my recollection of how it was dealt with – I mean, having read the decision.  I, of course, was not there.

HER HONOUR:   Yes.  Well, in that case, it would be sufficient if I make directions in the terms proposed by the Minister.

MR PRINCE:   Yes, your Honour.

HER HONOUR:   Yes.

MR PRINCE:   I think all of that material is called for, your Honour, in the affidavit in support of the application for an order to show cause, in any event.

HER HONOUR:   Thank you, Mr Prince.

MS MITCHELMORE:   Yes, it may be that the Minister may wish to put the written submissions that were before the court below into evidence, but my directions make provision for any evidence in submissions to be filed.

HER HONOUR:   Yes, that is so.  Thank you.

Yes, very well, I will stand the matter over for hearing in respect of the claims for relief in paragraphs 1, 2, 8 and 9 of the application for an order to show cause to 19 August 2015 at 10.00 am.  The plaintiff is to file and serve any evidence on which he proposes to rely and any written submissions on or before 4.00 pm, 10 working days before the date fixed for hearing.  The first defendant is to file and serve any evidence on which it proposes to rely and any written submissions on or before 4.00 pm, five working days before the date of the hearing.

Just before I adjourn, there is one matter, and that is on the last occasion I think no appearance had been entered on behalf of the third defendant.  I think that remains the position.  Has the application been served in conformity with the Rules on the third defendant?

MR PRINCE:   I am told it has, your Honour.  There was an affidavit of service I saw somewhere ‑ on 9 May, I think.  Would your Honour just give me a moment?

HER HONOUR:   Yes.

MS MITCHELMORE:   I can perhaps indicate, your Honour, my solicitors do not have instructions but Mr Markus is content to attempt to follow up with the Federal Court if that would assist.

HER HONOUR:   That would assist.  Thank you, Ms Mitchelmore.  I would like the position regularised before the hearing.

MR PRINCE:   I will make inquiries.

MS MITCHELMORE:   Yes, of course.

HER HONOUR:   Very well.  Adjourn the Court.

AT 9.57 AM THE MATTER WAS ADJOURNED