Transcript Of Proceedings

[2020] HCATrans 100

[2020] HCATrans 100

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S23 of 2020

B e t w e e n -

CIC19

First Plaintiff

CIE19

Second Plaintiff

CIF19

Third Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 5 AUGUST 2020, AT 9.32 AM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   The orders I make in this matter are as follows:

1.The application is dismissed under r 25.09.1 of the High Court Rules 2004 (Cth).

2.The first and second plaintiffs pay the costs of the first defendant.

I publish my reasons and direct that those reasons be incorporated into the transcript.

The plaintiffs are Indian nationals.  They arrived in Australia on visitor visas.  The first plaintiff applied for a protection visa on the grounds that he feared politically motivated harm were he to return to India.  The second and third plaintiffs applied for protection visas as members of his family unit.  A delegate of the Minister decided to refuse to grant them protection visas.

The Administrative Appeals Tribunal, on review, affirmed the delegate’s decision.  The Tribunal’s decision was substantially based on a series of adverse credibility findings made against the first plaintiff due to various identified inconsistencies in his claims and evidence.

The plaintiffs applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. They failed to attend the first scheduled court date and their application was dismissed on that date by a registrar under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). The plaintiffs subsequently applied for reinstatement of their application. The application for reinstatement was heard and dismissed by Judge Baird. Her Honour found that the plaintiffs did not have a reasonable excuse for not attending the hearing and that their proposed grounds of review did not have reasonably arguable prospects of success.

The plaintiffs then applied to the Federal Court for leave to appeal from Judge Baird’s decision. Leave to appeal was required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth) as the dismissal of the application for reinstatement was interlocutory. Finding that the decision of Judge Baird was not attended by sufficient doubt to warrant the grant of leave to appeal, Robertson J dismissed the application: CIC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 110.

By an application for a constitutional or other writ filed in the original jurisdiction of the High Court, the plaintiffs now seek a writ of certiorari to quash the decision of Robertson J.  They argue that his Honour erred in not holding that the Tribunal failed to give genuine realistic consideration to aspects of their claims.  In particular, they argue that the Tribunal failed to assess the first plaintiff’s perceived political opinion due to his father’s political opinion.  They also argue that his Honour erred in holding that the Tribunal did not fail to invite the second plaintiff to give evidence at the hearing.

His Honour’s decision reveals no error, let alone jurisdictional error.  As to the first argument, his Honour accepted the findings of Judge Baird that the Tribunal considered and expressly rejected the first plaintiff’s claims to fear harm from his father’s political opponent.  In addition, his Honour accepted her Honour’s findings that the first plaintiff did not claim to fear harm on the basis of any imputed political opinion but rather relied solely on a fear of harm from his father’s political opponent, and that the global adverse credibility findings made against him in rejecting his claims had the effect of subsuming any separate claims based on imputed political opinion in any event.  As to the second argument, his Honour accepted the findings of Judge Baird that the Tribunal asked the first plaintiff whether he wanted the Tribunal to talk to the second plaintiff and the first plaintiff declined to offer any evidence from the second plaintiff.

The plaintiffs seek in the alternative a declaration to the effect that s 33(4B) of the Federal Court of Australia Act is invalid to the extent that it prevents an appeal from an interlocutory decision of the Federal Court and relatedly seek leave to file an application for special leave to appeal from the decision of Robertson J. The proposition that s 33(4B) of the Federal Court of Australia Act is invalid has been rightly rejected as unarguable on numerous occasions:  eg Plaintiff S208/2018 v Minister for Home Affairs [2019] HCA Trans 003; BLS16 v Minister for Home Affairs [2019] HCA Trans 115; Hossain v Minister for Home Affairs [2019] HCA Trans 182.

To the extent that the application also seeks a writ of certiorari to quash the Tribunal’s decision and an injunction preventing the Minister from relying on or giving effect to that decision, it amounts to an abuse of process:  see Bussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 94 ALJR 497 at 500‑501 [13]; 377 ALR 228 at 232 and the cases there cited.

The orders I will make are:

1.The application is dismissed under r 25.09.1 of the High Court Rules 2004 (Cth).

2.The first and second plaintiffs pay the costs of the first defendant.

AT 9.33 AM THE MATTER WAS CONCLUDED