SZUSH v Minister for Immigration and Border Protection & Ors; CZBO v Minister for Immigration and Border Protection & Ors

[2016] HCATrans 112

[2016] HCATrans 112

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C6 of 2015

B e t w e e n -

SZUSH

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL CIRCUIT COURT OF AUSTRALIA

Second Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Third Defendant

Office of the Registry
  Canberra  No C7 of 2015

B e t w e e n -

CZBO

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL CIRCUIT COURT OF AUSTRALIA

Second Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Third Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 13 MAY 2016, AT 11.55 AM

Copyright in the High Court of Australia

____________________

MR H.R. FORD:   Your Honour, I appear in each of these matters for the plaintiffs.  (instructed by Hugh Ford Solicitor)

MR P.M. KNOWLES:   May it please the Court, I appear for the first defendant in each of these matters.  (instructed by Clayton Utz)

HIS HONOUR:   Yes, Mr Ford.  Thank you, I have had the benefit of your written outline in the SZUSH matter, for which I am grateful.  You can proceed from there.

MR FORD:   Your Honour, before I begin, I wish to tender the affidavit in this matter and also my submissions in this matter.

HIS HONOUR:   Yes, thank you.  I have received those.

MR FORD:   Your Honour, before I begin I think there are two threshold matters which the Court needs to address before we proceed, and those two matters are the question of remitter and the question of the plaintiff in this matter being out of time.

HIS HONOUR:   Yes.

MR FORD:   Now, your Honour, there was a directions hearing in this matter and you presided in that matter, and in that directions hearing you directed that there be a hearing in this matter.

HIS HONOUR:   That is correct.  The first thing you will need is an extension of time, obviously.

MR FORD:   Well, the next thing is that the Registrar of the Court sent me a letter indicating that there is also to be a hearing in this matter today.

HIS HONOUR:   Yes.

MR FORD: Now, when I see the word “hearing” I take that to mean a substantive hearing. And, further, in connection with that, section 75(v) of the Constitution, which is the basis of this application for an order to show cause, contemplates that there will be a merits review of this matter, not a review in jurisdictional – yes, section 75(v) contemplates or posits that there be a merits review of this matter and, as such, the plaintiff is not required to establish jurisdictional errors, although I have done that, in my submission, your Honour, but it is the plaintiff’s submission that the plaintiff is not required to establish jurisdictional errors.

Now, on the question of remitter, it is the plaintiff’s submission that the most appropriate avenue of jurisdiction to deal with this matter was at the directions hearing, and that if the defendant was concerned to raise the issue of remitter then the most appropriate place to raise that would have been at the directions hearing.  As you are aware, your Honour, the defendant chose not to raise the issue of remitter at the directions hearing; no mention was made of that at all.

Now, on the question of being out of time, once again, section 75(v) of the Constitution is a constitutional right, your Honour. It is a right that cannot be fettered by the legislature or, for that matter, a statute. Any attempt by the statute to fetter the jurisdiction of this Court would be unconstitutional. If, for example, the Migration Act purported to restrict in some way the right of the Court to review such a matter, then that would simply be unconstitutional.

The next thing is that what flows from that, your Honour, is that I have in the course of this matter consulted with the Registrar of the Court and asked for guidance from the Court as to what time limits are appropriate in this matter. Now, the Registrar correctly pointed me to the High Court Rules, and I have examined the High Court Rules, and I believe it is Part 25. Part 25 does not place any time limit on such an application. The appropriate place for such a time limit to be placed is in the High Court Rules, not in the Migration Act and not in the Judiciary Act.

Now, in addition to that, your Honour, the defendant – if the defendant was also concerned about the matter being out of time then, once again, the defendant should have raised this matter at the directions hearing.  The directions hearing is the most appropriate avenue to deal with out of time applications.

HIS HONOUR:   Well, we are dealing with it now, Mr Ford.  What do you say about the extension of time which is sought?

MR FORD:   I say that there is no time limit in such a matter.

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

MR FORD:   If your Honour is mindful to find that the matter is out of time, then in relation to that the defendant has simply no other avenue to go in this matter, no further jurisdiction to pursue, because this matter is out of time in the Federal Circuit Court and the Federal Court.  The matters which I have raised in my submissions are of the highest importance and, essentially, the whole review process is under challenge based on my submissions.

Essentially, every decision of the Administrative Appeals Tribunal in the Refugee Review Division infringes the principles as stated by his Honour Justice Kirby in SGLB.  There is a consistent, constant assessment of credibility, there is never any assessment of the particular claims of the applicant and, as such, all decisions of the Refugee Review Tribunal – sorry, the Refugee Review Division in the Administrative Appeals Tribunal is now open to question.  But, nevertheless, it is my submission, your Honour, that these matters have no time limit, the

Constitution does not impose a time limit and the fact that the legislature attempts to restrict the time limit is an unlawful practice.

Now, your Honour, I would think that you need to make at least an initial decision about these two issues and then we – sorry, your Honour, I have another proposition to make.  The defendant was required to put on some submissions and the defendant has put on submissions, but if you look at the submissions, your Honour, all they do is address the issue of remitter and the issue of out of time.

HIS HONOUR:   Yes.

MR FORD:   There is no discussion of the substantive issues.  Now, this is an application before the Court, and it is the plaintiff’s application, and the plaintiff has made a number of claims concerning the unlawful practices of the Tribunal.  Now, the defendant should have addressed those claims in the defendant’s submission; the defendant has chosen not to address those claims.  So, on concepts of estoppel, I think that the defendant is now estopped from now dealing with these issues because the defendant should have put those issues in their submissions; they chose not to do that.

HIS HONOUR:   Well, do not worry too much about the defendant, I am sure they can speak for themselves.  At the moment, we are considering whether it is necessary for there to be an application for extension of time and the considerations which are pertinent to that if one is required.  Is there anything more you wish to say about that aspect of the matter at this stage?

MR FORD:   No, not at this stage, your Honour.

HIS HONOUR:   All right, then, I will hear from Mr Knowles on that aspect of the matter.  Mr Knowles.

MR KNOWLES:   Your Honour, on the issue of the extension of time, in my written submissions, I have outlined the various propositions which arise but, particularly, the different time limits which are in here depending on whether one is considering the challenge to the decision of the Tribunal or the challenge to the decision of the Federal Circuit Court or the faintly put challenge to the decision of the Minister to impose a no work condition on any bridging visa.  There is a little bit of feedback at my end, your Honour, can your Honour hear my submissions?

HIS HONOUR:   I can, thank you.

MR KNOWLES: The position in terms of the challenge to the decision of the Tribunal, we put that the time limit should not be extended under section 486A(2) of the Migration Act for the four reasons set out.  That is,

firstly, that this application to quash the decision of the Tribunal is an abuse of process, or akin to an abuse of process, in circumstances where the Federal Magistrate – I withdraw that – the Federal Circuit Court has already heard and determined the same issue.  If there is to be any challenge to that decision, it is appropriately done by way of seeking judicial review of the Federal Circuit Court’s decision.

Secondly, we say that the extent of the delay in this case is 18 months and is considerable.  Thirdly, we say it is unexplained or, at least, not adequately explained, and I have referred in my written submissions to the ex tempore decision of Justice Crennan in Plaintiff M90 of 2009 where her Honour indicated that delaying bringing a judicial review application on the basis that a visa applicant was seeking the personal intervention of the Minister in their case is not a sufficient explanation for delay in commencing proceedings.

And, finally, and contrary to my learned friend’s submissions, in paragraph 14 and 15 of the submissions in the SZUSH matter, but also in the CZBO matter, we do address the merits of the challenge to the decision of the Tribunal, and to suggest that the Tribunal is not entitled to take account of the credit of an applicant in reaching its decision is both contrary to authority but also contrary to the structure and text of section 65 of the Migration Act which requires that the Minister be satisfied that an applicant meet the criteria of an particular visa.  They are the submissions that we make on the extension of time application.

HIS HONOUR:   Thank you, Mr Knowles.  Mr Ford, is there anything further you want to say on the extension of time applications?

MR FORD:   Yes, your Honour.  Essentially, the defendant is asserting this is a matter of res judicata or possible abuse of process.  Well, it is the plaintiff’s submission that the plaintiff is simply exercising his constitutional right under 75(v) to pursue his or her rights in this matter.

HIS HONOUR:   Well, I think the point Mr Knowles was making was that the remedy under section 75(v) is discretionary and one of the considerations relevant to the exercise of that discretion is that you might have proceeded more appropriately by way of judicial review of the decision you now seek to attack.

MR FORD:   That may well be, your Honour, but the fact that the plaintiff has other options does not preclude one from commencing proceedings in this Court.

HIS HONOUR:   Yes.

MR FORD: And you look at the provision, section 75(v), is largely – it is unfettered, as you have correctly pointed out, and it is, as I have already indicated, the plaintiff’s submission that there are no time limits in this matter and any purported attempt to impose a time limit is, by the legislature – if you want to go back to basic principles of separation of powers – the legislature is imposing itself on the judiciary and it is something which is to be frowned upon. So the issues of delay are simply not relevant to whether one seeks review in this Court. I have no further submissions, your Honour.

HIS HONOUR:   On 18 November 2013, the Refugee Review Tribunal (“the RRT”) affirmed a decision of the delegate of the Minister for Immigration and Border Protection (“the delegate”) not to grant the applicant, SZUSH, a Protection (Class XA) visa. On 10 July 2014, some 200 days after the expiration of the 35‑day time limit prescribed by s 477(1) of the Migration Act 1958 (Cth) (“the Act”), SZUSH filed in the Federal Circuit Court an application for judicial review of the RRT decision.

On 21 April 2015, the Federal Circuit Court, constituted by Judge Driver, found that it was not established that it would be in the interests of the administration of justice to make an order under s 477(2) of the Act to extend time for filing of the application. In extensive reasons published on 23 April 2015, his Honour explained that he had refused to extend time because SZUSH had not offered a satisfactory explanation for the delay and because SZUSH’s proposed grounds of review were not seriously arguable.

On 2 June 2015, SZUSH filed in this Court an application for an order to show cause why certiorari and mandamus should not go to quash the decision of the Federal Circuit Court and to compel the Federal Circuit Court “to make a decision according to law”; and on the same day SZUSH filed a summons for directions seeking, inter alia, an order that the matter be remitted to the Federal Circuit Court.  Thereafter, however, the matter lapsed for the better part of another year.

On 18 April 2016, SZUSH filed in this Court an amended application for an order to show cause, seeking extensions of time “to allow the High Court to review the decision of the Federal Circuit Court” and “to allow the High Court to review the decision of the Refugee Review Tribunal”, certiorari and mandamus to quash the order of the Federal Circuit Court and to compel the Federal Circuit Court “to make a decision according to law”, certiorari to quash the decision of the RRT and mandamus to compel the Administrative Appeals Tribunal “to make a decision according to law”, certiorari to quash a decision of the Minister to deny the applicant a bridging visa with permission to work and mandamus to compel the Minister to grant SZUSH a bridging visa with permission to work.

On the same day, SZUSH filed a summons seeking, inter alia, an extension of time “to allow the High Court to review the decision of the Refugee Review Tribunal” and an extension of time “to allow the High Court to review the decision of the Federal Circuit Court”.

The grounds of review specified in SZUSH’s amended application are, in substance, the same as those which the Federal Circuit Court held not to be seriously arguable.  The only evidence offered in support of the amended application and application for extension of time, apart from copies of the RRT’s decision and the Federal Circuit Court’s judgment, is an affidavit of SZUSH in which she deposes that she did not appeal from the RRT’s decision to the Federal Circuit Court within time because she could not afford to appeal and because she had sought the intervention of the Minister.  In effect, it is the same excuse as the Federal Circuit Court considered to be unacceptable.

Meanwhile, on 6 August 2015, SZUSH’s husband, CZBO, had filed in this Court an application for an order to show cause seeking, inter alia, a declaration that he is entitled to the grant of a Bridging Visa E with permission to work, certiorari to quash a decision of the RRT made on 13 April 2012 to affirm the decision of the delegate to refuse to grant CZBO a Protection (Class XA) Visa, certiorari to quash orders of the Federal Magistrates Court constituted by Federal Magistrate Neville on 14 February 2013 dismissing CZBO’s application for an extension of time in which to apply for judicial review of the RRT’s decision and mandamus to compel the Federal Circuit Court to grant an extension of time in which to apply for judicial review of the RRT’s decision.  Until now, that application has not been prosecuted, but now SZUSH and CZBO both seek orders that the two proceedings be heard together.

In order to proceed with her amended application to show cause, SZUSH requires an extension of time under s 486A(2) of the Act. Contrary to SZUSH’s submissions, that provision is applicable to this application and, therefore, before I may grant an extension of time, I must be satisfied that it would be in the interests of the administration of justice. I am not satisfied that it would be. The factors relevant to that determination include the length of delay, the explanation for the delay, the prospects of success of SZUSH’s application for review of RRT’s determination and any prejudice to the interests of the administration of justice. In this case, it appears to me that each of those considerations is opposed to the grant of an extension of time.

To begin with, the delay is inordinate.  The time for application to this Court for a remedy to be granted in the Court’s original jurisdiction in relation to a migration decision is 35 days after the date of the decision.  In this case, the application was not made for more than 18 months after the decision.

Secondly, in substance, the application for extension of time is a reiteration of the application for extension of time which was made to and rejected by the Federal Circuit Court on 21 April 2015.  It does not disclose or attempt to grapple with the Federal Circuit Court’s extensive reasons for rejecting that application.

Thirdly, apart from the bare assertion of having inadequate funds with which to appeal, which without further explanation or supporting evidence is not persuasive, and the bare statement that SZUSH was awaiting the intervention of the Minister which is neither a logical nor acceptable reason for hesitation (Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279 per Crennan J), there is no explanation for the delay other than that it appears that SZUSH chose to seek the intervention of the Minister rather than pursuing a curial remedy.

Fourthly, despite SZUSH being given the opportunity at the recent directions hearing to file further evidence in support of the application, nothing has been offered by way of evidence or, indeed, reasoned submission which casts any doubt on the propriety of the delegate’s decision, the RRT’s determination or the judgment of the Federal Circuit Court.  Instead, what has been advanced is a contention that it would be appropriate for this Court to deal with the application for certiorari and mandamus as if it were an application for merits review and an argument that the RRT was guilty of jurisdictional errors by deciding the review on the basis of an assessment of SZUSH’s credibility and by failing to take relevant considerations into account.

The contention that this Court should engage in a process of merits review of the RRT’s determination is untenable.  It is not the function of this Court on application for certiorari or mandamus to engage in a process of merits review.

The complaint that the RRT committed jurisdictional error by deciding SZUSH’s application for review on the basis of an assessment of SZUSH’s credibility was dealt with at length in the Federal Circuit Court’s reasons for judgment and nothing which has been said today casts any doubt on the correctness of the Federal Circuit Court’s rejection of the complaint.

Contrary to SZUSH’s contentions, it is not the law that the credit and reliability of an applicant’s evidence is irrelevant in the determination of a review of an application for protection visa.  Where the establishment of facts is dependent on oral evidence, the evidence must be assessed and weighed in light of its apparent credibility and reliability and findings must be made according to that assessment (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (“MIMIA”) at 21‑22 [42] – [44] per Gummow and Hayne JJ.)

No doubt, as SZUSH contends, refugee cases involve special considerations where credibility is in issue (MIMIA (2004) 207 ALR 12 at 33 [73(7)] per Kirby J, in dissent.) As Kirby J observed in MIMIA, “There is no necessary correlation between inconsistency and credibility in such cases”.  It is necessary to keep in mind that there may be a host of ethnic, cultural, lingual, physical, behavioural and psychological considerations peculiar to refugees which, depending upon the circumstances of a given case, may explain inconsistencies that would otherwise be thought to reveal dishonesty.  But, that said, it remains a process of evaluation for the tribunal of fact to determine what, if any, weight is to be placed on an applicant’s version of events; and where, as here, there were many reasons to disbelieve an applicant’s version of events it is not in error to reject it.

As was observed in the Federal Circuit Court’s reasons for judgment, the considerations which justified the RRT’s rejection of SZUSH’s version of events, included that she lacked knowledge of the political organisation with which she claimed to have been associated; she advanced claims at the hearing, for the first time before the RRT, which she had not previously made; she had failed to take steps to seek protection as a refugee during a period she was out of her home country in another country; she returned to her home country despite her claim that she feared harm; and her claims were inconsistent with other evidence, including evidence provided by the political organisation with which she claimed to be associated.  Each of those matters was relevant to the assessment of the credibility and reliability of SZUSH’s version of events and it was neither illogical nor unreasonable for the RRT to regard them as significant.

A complaint that the RRT failed to take relevant considerations into account was also dealt with in the Federal Circuit Court reasons for judgment and rejected.

SZUSH contends that the RRT erred in placing excessive weight on country information.  She submits that, because the Department of Foreign Affairs and Trade (“DFAT”) was not aware of any evidence that suggested that SZUSH would be subject to persecution if she returned whence she came, the RRT could not conclude that she would not be subject to persecution.  It is, however, apparent from the reasons of the RRT that the DFAT information was but one of many considerations which the RRT took into account in reaching its conclusion.  There is nothing in the reasons to suggest that it gave the DFAT information excessive weight.

As to the attack on the Federal Circuit Court’s judgment, the only submission advanced was that the decision to refuse an extension of time was so unreasonable as to bespeak error of principle (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 631‑635 per Heydon J; 648‑650 per Crennan and Bell JJ). For the reasons already given, I do not doubt the correctness of the judgment.

Finally, nothing has been offered by way of evidence or submission in support of the attack on the Minister’s decision to refuse a bridging visa with permission to work other than an assertion that the Minister acted for the improper purpose of depriving SZUSH of the funds necessary for her to maintain this proceeding.

In the result, like the Federal Circuit Court, I am of the opinion that the chances of SZUSH succeeding in an application for judicial review of the RRT’s determination are such that it would be pointless to grant the extension of time which is sought.  And, as matters stand, the application for review of the Minister’s decision to refuse permission to work appears hopeless.  Accordingly, the application for extension of time is dismissed.

In the matter of CZBO ‑ I should say that the reasons I am about to give should be read as one, as it were, with those which I have just given in the matter of SZUSH (Matter C6 of 2015).  As I have observed in that other matter, on 6 August 2015, the applicant, CZBO, filed in this Court an application for an order to show cause seeking, inter alia, a declaration that he is entitled to the grant of a Bridging Visa E with permission to work, certiorari to quash a decision of the RRT of 13 April 2012 affirming the delegate’s decision to refuse to grant CZBO a Protection (Class XA) visa, certiorari to quash orders of the Federal Magistrates Court constituted by Federal Magistrate Neville of 14 February 2013 dismissing CZBO’s application for an extension of time in which to apply for judicial review of the RRT’s decision and mandamus to compel the Federal Circuit Court to grant an extension of time in which to apply for judicial review of the RRT’s decision.

The grounds of CZBO’s application are, in substance:  (1) that the Minister refused CZBO a bridging visa with permission to work for the improper purpose of denying him the opportunity to appeal to the Federal Circuit Court and this Court; (2) that the decision of the RRT is affected by jurisdictional error constituted of drawing adverse inferences from inconsistencies between statements made by CZBO at different times; (3) that the RRT made its decision notwithstanding that there was evidence to support it; and, (4) that the Federal Magistrates Court’s order refusing an extension of time was affected by Wednesbury unreasonableness (Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at 256 [105] – [106]).

Apart from copies of the relevant decisions and orders, the only evidence offered in support of the application is an affidavit in which CZBO deposes that he did not appeal within time because SZUSH had commenced proceedings in this Court, CZBO was awaiting the outcome of those proceedings and, in effect, it only occurred to CZBO that he should appeal when the Minister recently demanded that he leave this country.

As with SZUSH, in order to proceed with his application for certiorari and mandamus in respect of the RRT’s decision, CZBO requires an extension of time under s 486A(2) of the Act. Before I may grant the extension of time I must be satisfied that it would be in the interests of the administration of justice. Equally, before CZBO may proceed with his application for certiorari and mandamus in respect of the Federal Magistrates’ Court, he requires an extension of time under rr 25.06.1 and 25.06.2 of the High Court Rules 2004 (Cth).

In this case, as in SZUSH, the delay is inordinate.  The application for certiorari and mandamus in respect of the RRT’s decision is more than three years out of time and the application for relief in respect of the Federal Magistrates’ Court’s decision is more than two years out of time, and in each case the only excuse offered for the delay is that CZBO chose to await the outcome of SZUSH’s proceeding and, thus, saw no reason to institute his own proceeding until the Minister required him to leave the country.  I do not regard that as a satisfactory explanation for the delay.

Secondly, in substance, the application for extension of time in relation to the RRT decision repeats the application for extension of time that was made to and rejected by the Federal Magistrates’ Court on 14 February 2013; and, although it is alleged that the Federal Magistrates’ Court made a number of jurisdictional errors and that its decision is affected by Wednesbury unreasonableness, nothing has been offered in evidence or by way of submission in support of that contention.

I allow that CZBO’s task might have been made more difficult in that regard by the fact that the Magistrate’s reasons were given ex tempore and evidently not recorded in writing or transcribed, but I have not been provided even with a note of what it is that the Magistrate is contended to have said or done that is alleged to have been indicative of error.  Ex facie, there is nothing unreasonable or otherwise apparently erroneous about a decision to refuse an application for extension of time made almost a year after time has expired.

Thirdly, the grounds of attack on the RRT’s decision are essentially that the RRT erred in law by taking into account the credibility and reliability of CZBO’s version of events in making an adverse assessment of CZBO’s credibility and reliability and, in part, basing its decision on that assessment.  Particular complaint is made that the RRT took into account that CZBO gave inconsistent evidence about his involvement in a political organisation, inconsistent evidence as to where he lived in another country and inconsistent evidence as to injuries which he was alleged to have suffered.  For the reasons given in Matter C6 of 2015, there is no error in the RRT taking credibility and reliability into account; and, in this case, it does not appear that there was any error in having regard to the identified inconsistencies.

Finally, apart from the bare assertion that the Minister refused CZBO permission to work for the improper purpose of depriving him of the funds needed to conduct this proceeding, nothing has been offered by way of evidence or submission in support of that allegation.

In summary, therefore, apart from the inordinate delay and inadequacy of its explanation, it appears to me that the chances of CZBO succeeding in his applications to quash the decisions of the RRT and Federal Magistrates’ Court are such that it would be futile to grant the extension of time which are sought and that, as the matter stands, the application for review of the Minister’s decision to refuse permission to work appears hopeless.

Accordingly, in this matter, each of the applications for extension of time is dismissed.

MR KNOWLES:   Your Honour, I seek an order for costs be made in both matters.

HIS HONOUR:   Mr Ford, anything to say?

MR FORD:   No, your Honour.

HIS HONOUR:   In each of those matters, the applications for extension of time are dismissed with costs.

Adjourn now sine die.

AT 12.38 PM THE MATTER WAS CONCLUDED