SZTUT v Minister for Immigration and Border Protection & Anor

[2016] HCATrans 150

[2016] HCATrans 150

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S254 of 2015

B e t w e e n -

SZTUT

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

Application for order to show cause

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 4 JULY 2016, AT 10.14 AM

Copyright in the High Court of Australia

MR A. KUMAR:   May it please the Court, I appear for the plaintiff.  (instructed by Westside Legal)

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

HIS HONOUR:   Mr Kumar, I have read the papers. 

MR KUMAR:   Yes, your Honour.

HIS HONOUR:   There is no need to take me to any of the written submissions.  If there is something you wish to highlight or to add please go ahead.

MR KUMAR:   Yes, your Honour.  Just looking at my friend’s submission, this was an extension of time application, as your Honour will see from the various paragraphs that are mentioned of the RRT decision and my written submission.  But we say the crux of the matter is that section 477 is the gateway to the applicant being able to run its case in the court below.  So, your Honour, the only point that I would air is that we are not trying to do a substantive review of his Honour’s decision.  There were certain factors that had to be taken into account.  Obviously, in exercising his Honour’s discretion, your Honour, we say that his Honour should have turned his mind to the correct questions in determining whether the review and merits of the case itself was one aspect of the exercise of his Honour’s discretion.

So, your Honour, in focusing to the right question we would submit that thereby – not focusing the correct question – the question is what is engaging his exercise of his jurisdiction, whether the time – exercise of a discretion whether time should be extended or not.  So, in my submission, your Honour, the overrule – the correct questions have not been asked in this particular – unless I can assist your Honour any further those are my submissions.

HIS HONOUR:   Yes, thank you, Mr Kumar.  Mr Markus, I do not need to hear from you.

MR MARKUS:   Thank you.

HIS HONOUR:   Before me is an application for an order to show cause filed in the original jurisdiction of this Court.  There are two named defendants.  The first defendant is the Minister for Immigration and Border Protection who has appeared, through the Australian Government Solicitor, in opposition to the application.  The second defendant is the Administrative Appeals Tribunal which is relevantly the successor to the Refugee Review Tribunal.  It has filed a submitting appearance.

The plaintiff is a citizen of Sri Lanka of Tamil ethnicity.  He arrived in Australia in June 2012.  He made an application for a protection visa which was refused by a delegate of the Minister in a decision which was affirmed on merits review by the Refugee Review Tribunal in June 2013. 

In January 2014, the plaintiff applied to the Federal Circuit Court of Australia under section 477(2) of the Migration Act 1958 (Cth) for an extension of time in which to seek judicial review of the decision of the Tribunal. The sole ground for that application, as it came to be amended, was that the Tribunal had failed to consider the full integers of the plaintiff’s claim. In the Federal Circuit Court Judge Nicholls dismissed the application on 6 November 2015. His Honour concluded that the sole ground on which the plaintiff relied could not be said to be of sufficient merit to warrant the grant of an extension of time.

The application now before me was filed on 4 December 2015.  By that application the plaintiff seeks, amongst other things, constitutional writs and ancillary relief founded on allegations of jurisdictional error on the parts of both the Tribunal and the Federal Circuit Court.  The Federal Circuit Court is not a party named in the application, but I will proceed on the basis that there would be no impediment to the application being amended so as to cure that defect.

The application also seeks an order for an extension of time pursuant to section 486A of the Migration Act.  As the application was filed within 35 days of the order of the Federal Circuit Court I treat the application for an extension of time as being sought only insofar as the plaintiff seeks constitutional writs and ancillary relief founded on allegations of jurisdictional error on the part of the Tribunal.

The application for an extension of time is in that respect one which I reject.  I set out the relevant principle in my reasons for decision in Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676; (2013) 297 ALR 560; [2013] HCA 22 at paragraph 13. That principle applies equally to an application for relief in this Court made by an applicant who has been unsuccessful in obtaining an order from the Federal Circuit Court extending the time for making an application for judicial review pursuant to section 477(2) of the Migration Act.

That brings me to so much of the application as seeks relief founded on allegations of jurisdictional error on the part of the Federal Circuit Court.  Before the Federal Circuit Court it was argued for the plaintiff that the Tribunal had failed to consider what was then described as an aggregated claim that the plaintiff would be at risk of persecution were he to return to Sri Lanka, the alleged persecution arising from him having a facial scar which would be observed at the airport upon his return, along with his Tamil ethnicity.  That observation, it was argued, would lead to a suspicion that the plaintiff had participated in the war or had received military training as part or in support of the Liberation Tigers of Tamil Eelam. 

Judge Nicholls took the view that the aggregated claim was not “part of some express, or clearly arising, aggregation of” the plaintiff’s claims before the Tribunal.  That conclusion was based on a thorough review of the manner in which the plaintiff’s merits review claim had been conducted before the Tribunal which demonstrated that the plaintiff’s argument before the Tribunal regarding scarring was not connected to his claims regarding questioning and possible arrest upon re‑entry.  Country information relied on by the plaintiff at the hearing before the Federal Circuit Court itself noted that “[t]here is no routine evidence to suggest that . . . examinations [for scarring] are routinely carried out on immigration returnees”.

The plaintiff argues before me that Judge Nicholls was wrong and that the aggregate claim did not form part of his “total claims” before the Tribunal.  Judge Nicholls, he argues, further erred in making findings of fact that were findings to be made by the Tribunal itself.  A new ground, not pressed before the Federal Circuit Court, is also formulated in the written submissions.  That ground is that the Tribunal erred in presuming that the plaintiff would be granted bail in the event that he is arrested and brought before a Sri Lankan court for having departed that country illegally. 

The only question before me, as appropriately recognised in the succinct submissions made by Mr Kumar orally this morning, is whether the Federal Circuit Court made a jurisdictional error in exercising its discretion to refuse to extend time pursuant to section 477(2) of the Migration Act. As my recent reasons for decision in AUK15 v Minister for Immigration and Border Protection [2016] HCA Trans 36 illustrate, answering that question is a tightly confined exercise. That exercise turns on the limited question of whether Judge Nicholls misconceived the nature of the function he was performing in deciding whether or not to make the order for an extension of time.

That limited question cannot be answered in the affirmative in the present case. Whether or not the Federal Circuit Court should have found that the Tribunal had not assessed a claim or an integer of a claim by failing to properly assess the risk that was posed to the Tribunal is not a question that is appropriate for me to answer. Those are matters which fall squarely within the jurisdiction of the Federal Circuit Court conferred by section 477(2). The Federal Circuit Court addressed itself to a consideration of those matters and, by any standard, the reasons of the Federal Circuit Court are unobjectionable.

The new ground does not affect the question of whether the Federal Circuit Court’s jurisdiction to extend time miscarried. 

Further, or in the alternative to seeking constitutional writs and ancillary relief, the application for an order to show cause also seeks special leave to appeal from the decision of Judge Nicholls. That application for special leave is incompetent. The constitutional basis of this Court’s jurisdiction to grant special leave to appeal lies, of course, in section 73 of the Constitution. That jurisdiction is subject to exceptions and regulations provided by statute. Here, section 20 of the Federal Circuit Court of Australia Act 1999 (Cth) provides that “[a]n appeal must not be brought directly to the High Court from a judgment of the Federal Circuit Court of Australia”.

For these reasons the application for an order to show cause must be dismissed under rule 25.03.3(a) of the High Court Rules. 

Do you seek to make any further application, Mr Markus?

MR MARKUS:   Yes, your Honour.  The first defendant seeks costs.

HIS HONOUR:   Mr Kumar, can you resist that?

MR KUMAR:   I do not seek to be heard on that, your Honour.

HIS HONOUR:   Thank you, Mr Kumar.  The orders I will make are therefore as follows: 

1.        The application for an order to show cause is dismissed.

2.        The plaintiff is to pay the costs of the defendants.

The Court will now adjourn.

AT 10.27 AM THE MATTER WAS CONCLUDED