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High Court of Australia Transcripts |
Last Updated: 24 February 2004
IN THE HIGH COURT OF AUSTRALIA
Office of
the Registry
Sydney
CALLOVER OF 20 IMMIGRATION
MATTERS
HEYDON J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON MONDAY, 16 FEBRUARY 2004, AT 9.31 AM
Copyright
in the High Court of Australia
HIS HONOUR: Before we begin this morning, there is a statement I wish to make. On 4 February 2003 the Court gave judgment in the matter of S157/2002 and the matter of S134[2003] HCA 1; , 195 ALR 1 and 24. Unless cause is shown to the contrary, I propose this morning to order the proceedings now pending in this Court, which were initiated after the coming into operation of the privative clause provisions in Part 8 of the Migration Act, be remitted to the Federal Court. To the extent to which the remitted proceeding alleges jurisdictional error, the Federal Court will have jurisdiction to hear and determine the proceeding. Orders of remittal made today will thus not reduce any applicant’s rights. Today’s orders merely determine which court will consider what those rights are.
The course of proceedings that I propose to adopt today is indicated on the callover list that I think parties and their representatives have available to them. Parties and their representatives should also have available to them a copy of the pro forma order that, subject to any contrary submissions, I propose to make today. It is an order of a kind that has been adopted in most of the cases in which orders for remitter were made last year and earlier this year. In relation to parties not attending, a similar order will be made.
I will deal with matters in groups, but each matter within each group will be called individually. I will deal first with the matters in which the parties are represented, then the matters in which the parties are not represented but can speak English, and then with matters where the parties speak another language and require interpretation, beginning with Bengali and then moving to Urdu, Nepalese, Arabic and Tamil. There are some matters in which parties are appearing for themselves. Some of those parties have asked for the provision of interpreters and arrangements have been made for this. However, if practitioners, particularly those representing the Minister, feel that they are in a position where they can offer assistance to litigants appearing in person who have questions, the Court would be most grateful if that assistance could be offered.
At 9.34 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S434/2003 was called.
MR A.N. SILVA: If the Court pleases, I appear for the applicant. (instructed by Silva Solicitors)
MR A. MARKUS: If your Honour pleases, I appear for the first respondent. (instructed by Australian Government Solicitor)
HIS HONOUR: Mr Markus, the Australian Government Solicitor’s stance in correspondence was to oppose remittal and to, in effect, apply for the matter to be struck out. Is that still the position?
MR MARKUS: That is correct, your Honour.
HIS HONOUR: You are prepared to meet that contention, Mr Silva?
MR SILVA: No, we are ready to respond to that, your Honour. I have affidavits here.
HIS HONOUR: You are ready?
MR SILVA: I have affidavits here to support our proposition that it should be remitted.
HIS HONOUR: I think it is common ground that it should be remitted if it is not to be struck out. Has Mr Markus or the Australian Government Solicitor’s office seen those affidavits?
MR SILVA: Yes, indeed.
HIS HONOUR: Could you hand up the ones you rely on.
MR MARKUS: Your Honour, I have not seen those - - -
HIS HONOUR: What do you want to do, Mr Markus? Perhaps the matter can stand in the list and we could return to it.
MR MARKUS: Your Honour, I am happy for that to occur, since this case may take some time, but I do not think I will need to spend too much time on these affidavits.
HIS HONOUR: I do not think it will take a great deal of time but it will take more time than most of the other cases. So it might be best if we stood this matter to the end of the list, Mr Silva, and we will come to it then. So the first matter will stand in the list. I will just note that there are filed in Court two affidavits of the applicant, one dated 11 February 2004 and one dated 12 February 2004.
At 9.36 am Soh v Commonwealth of Australia and Another was called.
MR N. PERRAM: May it please the Court, I appear for the plaintiff. (instructed by PSK Legal)
MR A. MARKUS: If your Honour pleases, I appear for the first defendant. (instructed by Australian Government Solicitor)
MS R.A. PEPPER: May it please the Court, I appear for the second defendant. (instructed by Crown Solicitors Office for New South Wales)
MR PERRAM: Your Honour, subject to two matters the parties think this case should be remitted. The first matter on which that reservation appears is the question of the intitulment of the proceedings. At paragraph 71 of the statement of claim there is an allegation that the plaintiff is the applicant for a protection visa, then in paragraph 72 an allegation that section 91X on its proper construction does not apply to these proceedings, and then alternatively an allegation that if it does, that it is invalid. Although the parties do not consent, each of the parties at the Bar table is of the view that on its proper construction section 91X does not apply to these proceedings.
I do not know if your Honour is aware, but the proceedings are essentially by way of an action for wrongful imprisonment, the allegation being that a person who was transferred from immigration detention at Villawood to immigration detention at Silverwater and Long Bay has been wrongfully imprisoned because it is not constitutionally possible to keep someone who is not the subject of a criminal proceeding in a prison, so a Chapter III argument is involved. So it has nothing in substance to do with protection visas. The Registry of this Court took the view that it had to be treated in the same way as the other matters.
HIS HONOUR: Is it common ground that the present title of the proceedings is correct or is there controversy about it?
MR PERRAM: No, the entitlement of the proceedings is correct but the plaintiff would like to be able to have his name on the case.
HIS HONOUR: Does anyone contend that the law precludes the plaintiff’s name being used?
MR MARKUS: Not the first defendant, your Honour.
MS PEPPER: Nor the second, your Honour.
HIS HONOUR: In other words, the matter was correctly called?
MR PERRAM: It is correctly called, but section 91X prevents in the public records of this Court or any other court the plaintiff, if the provision applies, from having his name published in the proceedings.
HIS HONOUR: Section 91X is mandatory, so it does not really matter the extent to which any party, or for that matter anyone else, consents. What is the argument for section 91X applying?
MR
PERRAM: The argument is one which springs from the words of the third line
of the first subsection, that is:
the proceeding relates to a person in the person’s capacity as:
(a) a person who applied for a protection visa;
The only
reason that the plaintiff is in immigration detention in one sense is because he
is a person who has applied for a protection
visa. The textual argument against
me is that that is sufficient.
HIS HONOUR: But the contrary point is that it is not really the person’s capacity as a person who applied for a protection visa which is material. The proceeding really relates to false imprisonment.
MR PERRAM: Precisely, your Honour, yes. In practical administrative terms, the plaintiff will get nowhere in this Court or in any other court unless someone makes a direction to the effect that he is allowed to have his names published in the records of the courts.
HIS HONOUR: Dictate a direction to me.
MR PERRAM: That the plaintiff is entitled to have his name published in relation to the proceedings.
HIS HONOUR: Do you object to the form of that direction, Mr Markus or Ms Pepper?
MR MARKUS: I do not object as such, your Honour. I would have thought that it may be more appropriate simply to make a direction that the title of the proceedings be amended to name the plaintiff as Jay Ho Soh. If I can make my client’s position clear, it is our view that section 91X does not apply, but, of course, that is ultimately a matter for the Court.
HIS HONOUR: Ms Pepper, do you have any further contribution to make to this fascinating debate?
MS PEPPER: Absolutely not, your Honour.
HIS HONOUR: I think, Mr Perram, that probably Mr Markus’ form is superior to your form. Do you have any problem with that?
MR PERRAM: I think so, your Honour.
HIS HONOUR: That is one thing I can do. Is there anything else apart from the usual order?
MR PERRAM: The only other dispute between the parties was the second order in the usual order. The Commonwealth has indicated its view is that the plaintiff should be the party who carries out that ministerial function. The plaintiff does not agree with that, other than that dispute.
HIS HONOUR: The second order
says:
Upon the Respondent Minister lodging in the High Court Registry in Sydney by 1 March 2004 one copy of all documents . . . the Registrar of this Court shall forward to the proper officer - - -
MR PERRAM: I think the Commonwealth’s position is that it is the plaintiff who should be taking that step and the order should be amended accordingly.
HIS HONOUR: Mr Markus, is this a stand that the Minister takes in respect of every matter?
MR MARKUS: No, your Honour.
HIS HONOUR: Just this one?
MR MARKUS: The proposed direction is still inappropriate because we are talking about the Commonwealth and a defendant and the proposed direction, and this is just a direction aimed at the first respondent Minister. We simply say, your Honour, that in this case where the plaintiff is represented, it would be appropriate for the plaintiff to lodge the documents, but I do not think this is a huge issue, your Honour.
HIS HONOUR: I think history teaches that it is more likely to be properly done if the Commonwealth does it than if anyone else does it. But order No 2 should commence with the words, “Upon the Commonwealth of Australia lodging”.
MR MARKUS: I am content with that, your Honour.
MR PERRAM: Other than that, in order 1, I think the reference to the word “application” should be to a “proceeding” and a similar amendment in order 3, the reference to “application” should be properly to the “summons”.
HIS HONOUR: Yes, very
well. In this matter the usual order will not be made. The following orders
will be made:
1. That the title of the proceeding be amended so as to name the plaintiff as Jay Ho Soh.
2. The further proceedings in this proceeding, including any application for the enlargement of time, be remitted to the Federal Court of Australia (“the Federal Court”).
3. Upon the Commonwealth lodging in the High Court Registry in Sydney by 1 March 2004 one copy of all documents filed by the parties in this application, the Registrar of this Court shall forward to the proper officer of the Federal Court copies of all documents filed in this Court.
4. The costs of the proceeding to the date of remission are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to the Federal Court and in the discretion of that court.
It is certified that this was a proper matter for the
attendance of counsel in Chambers.
MR PERRAM: May it please the Court.
MR MARKUS: If the Court pleases.
At 9.44 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant S635/2003 was called.
MR I.D. GRAHAM: I appear for the applicant, your Honour. (instructed by Rob Makin and Associates)
MR Z. CHAMI: May it please your Honour, I appear for the respondent Minister. (instructed by Clayton Utz)
HIS HONOUR: Are you happy with the consent order?
MR GRAHAM: No, your Honour.
HIS HONOUR: What do you not like about it?
MR GRAHAM: We do not consent to the matter going back for this reason, that this matter has already been before the Federal Court. What the Federal Court – his Honour Justice Sackville – said in relation to that is that an Anshun estoppel applied, and so he did not consider the merits of the applicant’s argument which would otherwise have been put before the court. It then went on appeal. On appeal the Anshun point was overturned. The court said no, there was no proper basis for the estoppel to apply. Neither did the Full Court proceed to consider the merits of the applicant’s case for review. It then went before the High Court on a special leave application, where his Honour Chief Justice Gleeson indicated “We are of the view that there are insufficient prospects of success of an appeal”. So in the upshot, this matter has never been heard in respect of the merits of the grounds of review.
HIS HONOUR: Is not one possibility that it should be remitted to Justice Sackville or some other single judge of the Federal Court for consideration of the matter in the light of the Full Federal Court’s findings, that is to say freed of the Anshun bar?
MR GRAHAM: There is a lot to be said for that, your Honour. I am just concerned that other estoppels might now be raised against us if the matter is remitted to the Federal Court. So in a sense this is a formal objection to being removed to the Federal Court.
HIS HONOUR: Mr Chami, will any other estoppels be raised against the - - -
MR CHAMI: I cannot say that, your Honour, at this point in time, but I am not willing to concede that a legal entitlement or a plea in bar based on some estoppel be forgone at this particular stage. I have not thought about those issues. I was not told about them by Mr Killalea, but I do consent to the remittal of the matter to the Federal Court for further disposition and final disposition there.
HIS HONOUR: Can I ask this, Mr Graham. If there are some other bars or estoppels other than Anshun, to what extent would they be operative in the Federal Court but not in the High Court in its original jurisdiction?
MR GRAHAM: At this point on the order nisi application, all that is being sought is a determination of whether there is an arguable case. That may in itself, if it was determined in the applicant’s favour, bring about a result in terms of it being remitted to the Tribunal. I am concerned that if estoppel questions are raised, res judicata and the like, and res judicata issues are raised in the Federal Court, that it might proceed no further.
HIS HONOUR: The thing is though that if these estoppels or res judicata pleas are good, they must be good in whatever court has jurisdiction. If this Court has jurisdiction and the Federal Court has jurisdiction, if the Minister has a good point, it would be good in the Federal Court; if he has no good points, they will be bad in that court and just as bad in this Court.
MR GRAHAM: That may be the case. The applicant’s other concerns with the matters in the Federal Court are that there is an indication in a particular judgment of the Full Federal Court, NACB v The Minister, to where the Full Federal Court has read the High Court’s judgment in S106, which was the judgment on whether or not illogicality could found an error of law for the purposes of review. There was an indication in that court in NACB that the Full Federal Court is of the view that the High Court did not address the issue of the line of authorities in the Federal Court which are to the effect that illogicality is not reviewable as an error of law.
So I am concerned that if the matter goes back to the Federal Court, it may be that they hold to that line. The matter then becomes subject to the process of going on special leave once again and at that point we are very much in a loop whether the High Court might not be concerned to hear the matter in terms of the test to be applied on special leave. Again, the applicant might never be heard on the merits of his grounds of review, that is, the merits of the issue of illogicality.
HIS HONOUR: If the matter were remitted to the Federal Court save to the extent that the application in this Court can be renewed in the event of some estoppel or other plea in bar being raised in the Federal Court which is not available in this Court, would that cover the position?
MR GRAHAM: That would give the applicant some comfort, your Honour.
HIS HONOUR: What do you say to that, Mr Chami? I personally just do not see how there can be any bar available in the Federal Court which is not also available in this Court, nor can I see that - - -
MR CHAMI: Yes, and that has been a point of contention raised by the Minister ever since the matter was first remitted to the Federal Court back in 2001 when it was then under the - - -
HIS HONOUR: But it does not seem desirable that we should spend time today sort of hunting up and down trying to think up possible quasi-Anshun or issue estoppels or other bars.
MR CHAMI: I agree, your Honour.
HIS HONOUR: What I propounded a few minutes ago was simply an attempt to reserve any rights the applicant might have, though I personally do not think there are any such rights but there might be, so that in the first instance the matter can be determined by the Federal Court free of Justice Sackville’s now overturned reasoning.
MR CHAMI: Well, your Honour, Justice Sackville’s reasoning was not overturned. The fact is when Justice Sackville heard the matter, then reported as BC v The Minister, he found that there was, in fact, no res judicata but that it was an Anshun estoppel and considered that there were not any special considerations which did away with the Anshun estoppel. That was overturned by the Full Federal Court and they found that there was, in fact, an Anshun but there were special circumstances and then the matter went on special leave to this Court and was dealt with in September/October of last year. The question then posed was the illogicality point and it was said that the matter had no sufficient prospects of success and the special leave application was refused.
The application now before you is, in fact, very much in the same terms as that which was dismissed on the special leave application. Whatever question remains, that is the illogicality point which is now this proceeding, can be dealt with by the Federal Court and, as the applicant has not articulated any particular estoppels which may apply to prevent the applicant from progressing in the case, I would suggest the matter simply be remitted and dealt with by the Federal Court.
HIS HONOUR: You do not dispute that there is still something for the Federal Court to do? It might be late to consider the illogicality argument but, subject to the things that stop late arguments being raised - - -
MR CHAMI: That is the argument currently raised and one that, if you remit it, your Honour, will be dealt with by the Federal Court.
HIS HONOUR: If that is the only thing – yes, I see. Just because two or three Justices on a special leave application would not entertain the illogicality point, the applicant might contend a single Judge in relation to an application - - -
MR CHAMI: That it was a different test, and that is, I think, what Mr Killalea is trying to say, that with special leave the question is then under section 35 of the Judiciary Act, which is a different question to the grant of an order nisi.
HIS HONOUR: But the Federal Court will be sitting in the same chair, as it were, as a single Judge of the High Court on that question.
MR CHAMI: Yes, I agree, your Honour.
HIS HONOUR: It will probably come back to
haunt us all, but for the sake of protecting the applicant I will attach some
condition or qualification
of the type I adumbrated earlier to the usual order.
In S635/2003 I have a certificate from the Deputy Registrar indicating
that he has been advised by the solicitor for the second respondent that
the
second respondent will submit to the order of the Court save as to costs. I
make the usual order but I add a further paragraph
numbered 4:
These orders are without prejudice to the right of the applicant to relist the application in this Court in the event that the Federal Court finds some estoppel or other bar to the prosecution of its claims in that court, being a bar not available to the application if prosecuted in this Court.
MR CHAMI: Could your Honour just repeat
the last half a dozen words for me?
HIS HONOUR: I cannot remember them.
MR CHAMI: I think I got up to “the prosecution of his application”.
HIS HONOUR: I think we will have to look at the transcript.
MR CHAMI: Thank you, your Honour.
At 9.55 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Mohammed Haroon and Others was called.
MR Z. CHAMI: Your Honour, I appear for the respondent Minister. (instructed by Clayton Utz)
Your Honour, I hand up a consent to remission of application form which is signed by the applicant, upon a letter being sent by the respondent Minister’s solicitors.
HIS HONOUR: Thank you. I think in the circumstances it is sufficient if I make the usual order. The substance of the consent seems to correspond with the terms of the usual order.
MR CHAMI: Yes, thank you.
HIS HONOUR: I have been advised by the solicitor for the second and third respondents that they will submit to the order of the Court, save as to costs. I make the usual order and I place with the file the consent to remission of application which the solicitor for the first respondent has just handed to the Court.
At 9.56 am Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S453/2003 was called.
APPLICANT S453/2003 appeared in person.
MR A. MARKUS: If your Honour pleases, I appear for the respondent. (instructed by the Australian Government Solicitor)
HIS HONOUR: Do you have any objection to what we call the usual order being made, that is to say, the matter being remitted to the Federal Court for it to determine your case?
APPLICANT S453/2003:
Yes, your Honour, because according to section 75(v) of the
Commonwealth’s Constitution, the High Court has original jurisdiction
in
matters:
in which a writ of Mandamus or prohibition or injunction is served against an officer of the Commonwealth –
and I would like
this honourable Court to hear my case.
HIS HONOUR: Yes, I understand that. Is there anything else you want to say?
APPLICANT S453/2003: Yes. I have been advised by the Registrar of this Court to prepare the grounds and the relief I am seeking, so can I read the ground?
HIS HONOUR: If you have them written out, just hand them up and I will have a look at them.
APPLICANT S453/2003: It is just notes. It is quick; it is not long.
HIS HONOUR: All right.
APPLICANT S453/2003: Okay. The grounds for bringing my case are, one, according to section 75(v) of the Commonwealth Constitution. Second, the condition attached to my visa is condition like no work, no study. By the Migration Regulations 1994.....is unreasonable. Number three, this condition attached to my visa contravenes the fundamental rights of human being that is stated in Schedule 2 of the Australian Human Rights and Equal Opportunity Commission Act 1986.
Number four, this condition contravene Article 1.2, 2.2, 6.1, 11.1 and 12.1 of the United Nations International Covenant on Economic, Social and Cultural Rights 1966, that came into force for Australia on 10 March 1976. Number five, this condition also did not give any alternatives how a lawful person staying in this country for.....could sustain himself without engaging in work or without getting social benefits. Number six, this regulation.....in bad faith and as a way of deterrent, as one of the purposes of punishment is to deter people from committing crime, imposing a penalty or condition on a lawful person as a way of deterrent is invalid and beyond the legislative power of the respondent. Number seven, these conditions attached to my visa by the regulation. All this delegated legislation are against the law of humanity.
So, finally, the relief I am seeking is to quash the decision of the respondent, that is, number two, to direct the respondent to give me access to basic service; number three, to compensate for the moral, physical, mental, social, economical and professional damage I endured and I am enduring. Number four, the part of the Migration Regulations 1994 that prohibits a lawful person from engaging in work to be..... Thank you, your Honour.
HIS HONOUR: Yes, thank you. Mr Markus, your client maintains the same position, that the matter should be remitted?
MR MARKUS: Your Honour, it can be remitted and we say it should be. I should just mention, your Honour, that insofar as the applicant is seeking damages, I know that the respondent is nominated as the Minister and that may cause some difficulty in any sort of damages suits, but I do not know whether I should - - -
HIS HONOUR: If it goes to the Federal Court, the proceedings could be rectified there, presumably?
MR MARKUS: I am a little bit concerned, your Honour – and I am not making submissions now, I am simply expressing some concern about remittal of a matter under section 44 of the Judiciary Act, to the extent that the court to which the matter is then remitted can interfere with the matter which has been limited in the way that your Honour just mentioned.
HIS HONOUR: Is the alternative to have the proceedings placed in their desired structure before remittal?
MR MARKUS: Your Honour, I just thought that insofar as there is a damages suit sought to be brought, at least it would be desirable to join the Commonwealth as a party, because otherwise I do not see how an unnamed Minister, just a title of the proceeding, could be liable for damages. It may be, your Honour, that there are other ways of addressing it.
HIS HONOUR: A named officer of the Commonwealth can be made liable for damages and the Commonwealth will always indemnify that officer, but the cause of action is false imprisonment or something of that character, presumably, is it?
MR MARKUS: No, your Honour. The cause of action is, in effect, as I understand it – I should put it this way, your Honour. The applicant is prevented by the Migration Act and Regulations from obtaining a visa which does not have a condition attached to it permitting him from working. The condition is to prevent him to work.
HIS HONOUR: What is that condition?
MR MARKUS: Your Honour, what I understand the applicant to do is to seek relief, in effect, declaring the relevant statutory provisions invalid, although he has not properly identified the basis of that invalidity, in constitutional terms, in any event. He then seeks other types of relief on the basis of what he just said and what appears in the pleadings, or the.....pleadings. He is also seeking some sort of damages, although that is not properly identified.
I am simply expressing some concern in respect of the proceedings as they are presently pleaded, because if a damages suit is brought, it cannot be brought against the Minister in this form. It could be brought against a Minister named, but it would normally be the Commonwealth’s argument that it would be vicariously liable for any such damages.
HIS HONOUR: True, but these problems can be resolved in the Federal Court, can they not?
MR MARKUS: Your Honour, if there is a new party to be added to the proceedings, I do not know whether that can be done once the matter had been remitted. It could be that the Federal Court may take the view that the applicant would be entitled to commence some other proceedings and the two proceedings may be joined together, but I am not quite sure whether once the power under section 44 of the Judiciary Act had been exercised by this Court and the matter had been remitted, the matter being a dispute presumably between the parties identified in the proceedings, whether then that dispute could be widened by adding additional persons as parties. That is my concern, your Honour.
HIS HONOUR: Thank you, Mr Markus.
The applicant has objected to the remitter of these proceedings to the Federal Court of Australia because he prefers them to be heard in this Court. He has advanced various reasons why they should not be remitted, but in my opinion those are not reasons which prevent the application of section 44 of the Judiciary Act.
Mr Markus, on behalf of the Minister, has raised a difficulty along these lines. The applicant is foreshadowing a claim for damages in relation to his experiences flowing from the decision of the Minister of which he complains. Mr Markus points out that it would be desirable, and perhaps necessary, for the Commonwealth of Australia to be joined as a party in the event that that aspect of the relief is to be pressed. He raises a question as to whether once the matter has been remitted to the Federal Court it would be open to the Federal Court to permit the joinder of a further party.
In my opinion the usual
order should be made, subject to the addition of a further order as
follows:
The remittal effected by the above orders is to be subject to the right of either party to have the matter reconsidered by a Justice of this Court in the event that any step desired to be taken cannot be taken in the Federal Court.
Thank you. The Court disposes of that matter
accordingly.
At 10.07 am Re The Honourable Philip Maxwell Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Seyfarth was called.
MR A. MARKUS: If your Honour pleases, I appear for the first respondent. (instructed by Australian Government Solicitor)
Your Honour, I should indicate that the applicant - - -
HIS HONOUR: Yes, has been detained for reasons other than the Migration Act.
MR MARKUS: That is correct, your Honour. The aunt of the applicant is present in Court and I do not know whether your Honour wishes her to approach.
HIS HONOUR: Would you like to step forward? Do you speak English?
MS S.M. FRUGTNIET: Yes, I do.
HIS HONOUR: You are the aunt of the applicant?
MS FRUGTNIET: Edward’s aunt, yes.
HIS HONOUR: Yes.
MS FRUGTNIET: The only thing I was asked to come and do was to consent to the matter being remitted to the Federal Court, your Honour.
HIS HONOUR: Yes, and your nephew understands, broadly speaking, what is happening, namely it will be sent to the Federal Court.
MS FRUGTNIET: Yes, he does, your Honour.
HIS HONOUR: And there a Federal Court judge will just consider the matter in the way that a High Court judge would have done.
MS FRUGTNIET: Certainly.
HIS HONOUR: No rights of his in this respect will be cut down.
MS FRUGTNIET: That is right, your Honour.
HIS HONOUR: Well, I think it is appropriate then to make the usual order by consent.
MR MARKUS: If the Court pleases.
At 10.09 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S519/2003 was called.
APPLICANT S519/2003 appeared in person.
MR A. MARKUS: If your Honour pleases, I appear for the first respondent. (instructed by Australian Government Solicitor)
HIS HONOUR: The Deputy Registrar has certified that he has been advised by the solicitor for the second and third respondents that they will submit to the order of the Court save as to costs. Do you consent to the orders of remitter which we have been calling the usual orders?
APPLICANT S519/2003: I have no objections.
HIS HONOUR: Thank you. Just sit down. In this matter the applicant consents – yes, Mr Markus.
MR MARKUS: I am sorry, your Honour. This is a matter in which the first respondent would submit to this Court that the matter ought to be dismissed or the application for order nisi ought to be refused. There is an affidavit that has been filed on 27 January.
HIS HONOUR: Have you seen a copy of an affidavit of 27 January, being an affidavit of Andrew John Crockett?
APPLICANT S519/2003: I have an affidavit too which I filed on 26 September.
HIS HONOUR: Yes, I have that too, but do you have one that was filed on 27 January, quite a fat affidavit?
APPLICANT S519/2003: Yes, I do, your Honour.
HIS HONOUR: So you will be relying on your own affidavit?
APPLICANT S519/2003: Yes, your Honour.
HIS HONOUR: Do you have any objection to it, Mr Markus?
MR MARKUS: No, your Honour.
HIS HONOUR: Do you have any objection to Mr Markus relying on Mr Crockett’s affidavit?
APPLICANT S519/2003: No objections.
HIS HONOUR: I will just have a look through these papers. Actually, I think what we will do is put this matter to the end of the list because it will probably take a bit more time than some of the other matters. Are you free to stay here for an hour or so?
APPLICANT S519/2003: Yes.
HIS HONOUR: Yes, very well. This matter will stand in the list and it will be dealt with at the end of it.
MR MARKUS: If the Court pleases.
At 10.12 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S411/2003 was called.
APPLICANT S411/2003 appeared in person.
MR A. MARKUS: If your Honour pleases, I appear for the first respondent. (instructed by Australian Government Solicitor)
NUTAN MAHARAJ, affirmed as interpreter:
HIS HONOUR: I should say that the Deputy Registrar has supplied a certificate indicating he has been advised by the solicitor for the second and third respondents that they will submit to the order of the Court save as to costs. Mr Markus, you want the matter remitted?
MR MARKUS: Yes, your Honour.
HIS HONOUR: Could you ask the applicant whether he consents to this matter being remitted to the Federal Court?
APPLICANT S411/2003 (through interpreter): Single Federal Magistrates Court, your Honour.
HIS HONOUR: He wants it to go to the Federal Magistrates Court?
APPLICANT S411/2003 (through interpreter): So that it will be cost effective, that is why, for a single lawyer.
HIS HONOUR: What do you say about that, Mr Markus?
MR MARKUS: Your Honour, the costs in the Magistrates Court and the Federal Court are not significantly different. It is usual for this Court to remit the matters to the Federal Court. There is an additional concern that my client has in matters directly being remitted to the Magistrates Court and that is at present there is an 18 months delay that occurs.
HIS HONOUR: Eighteen months delay?
MR MARKUS: Yes, your Honour.
HIS HONOUR: Yes, I see, thank you. Does the applicant have anything further he wants to say?
APPLICANT S411/2003 (through interpreter): I would just request to, if it is possible, I would like to be referred to Federal Magistrates Court, your Honour.
HIS HONOUR: In this matter, the applicant consents to the remittal of the matter, but desires it to be remitted to the Federal Magistrates Court rather than the Federal Court of Australia. Mr Markus, on behalf of the Minister, has contended, in effect, that the delays in front of the Federal Magistrates Court are more substantial than those before the Federal Court. The applicant makes the point that the level of costs expended in the Magistrates Court are likely to be less than in the Federal Court. Mr Markus’ riposte is that they are not likely to be very much less. In all the circumstances, I think it is appropriate for the matter to be remitted to the Federal Court and, therefore, I make the usual order.
At 10.15 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant S430/2003 was called.
MS B. RAYMENT: I appear for the first respondent, your Honour. (instructed by Sparke Helmore)
HIS HONOUR: Are you expecting the applicant to be along in your matter, Ms Rayment?
MS RAYMENT: I have not seen the applicant this morning. I did make inquiries before we came in.
HIS HONOUR: Perhaps the matter could be called outside the Court. Excuse me, do you have any other people?
THE INTERPRETER: Yes.
HIS HONOUR: If you would just like to wait. Thank you very much for your assistance.
I should indicate while the matter is being called outside the Court that the Deputy Registrar has certified that he has been advised by the solicitor for the second respondent that the second respondent will submit to the order of the Court save as to costs.
COURT OFFICER: No appearance, your Honour.
HIS HONOUR: There being no appearance on the part of the applicant, I make the usual order that applies in relation to parties who have not attended.
At 10.16 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S527/2003 was called.
MS B. RAYMENT: I appear for the first respondent, your Honour. (instructed by Sparke Helmore)
The applicant is here. I am sorry, your Honour, I might have misunderstood.
HIS HONOUR: I think what we will have to do is have the matter called.
MS RAYMENT: Yes, your Honour.
HIS HONOUR: Is there anyone in Court who is the applicant in matter S527 of 2003?
COURT OFFICER: No appearance, your Honour.
HIS HONOUR: There being no appearance of the applicant or anyone on his behalf, I make the usual order that applies to unattending parties.
At 10.18 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S594/2003 was called.
APPLICANT S594/2003 appeared in person.
MR A. MARKUS: If your Honour pleases, I appear for the first respondent. (instructed by Australian Government Solicitor)
HIS HONOUR: Do you speak English? Can you understand English?
APPLICANT S594/2003: I can speak English - - -
HIS HONOUR: I think the lady on your left will be able to translate for you. Is that gentleman the applicant in this - - -
APPLICANT S594/2003 (through interpreter): Yes, your Honour.
HIS HONOUR: The Deputy Registrar has a certificate indicating that he has been advised by the solicitor for the second and third respondents that they will submit to the order of the Court save as to costs. Could you ask the applicant whether he consents to this matter being remitted to the Federal Court?
APPLICANT S594/2003 (through interpreter): I have no objection, your Honour, but I will not be able to pay the cost.
HIS HONOUR: Yes. I think I will make the usual order.
MR MARKUS: Thank you, your Honour.
HIS HONOUR: Thank you, sir, and thank you, madam, for your attendance. Do you do any other languages? You will be with us for - - -
THE INTERPRETER: For another four, the following four.
HIS HONOUR: Thank you. Thank you, sir.
At 10.20 am Re The Honourable Philip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant S505/2003 was called.
APPLICANT S505/2003 appeared in person.
MS B. RAYMENT: I appear for the first respondent, your Honour. (instructed by Sparke Helmore)
HIS HONOUR: The Deputy Registrar has certified that he has been advised by the solicitor for the second respondent that the second respondent will submit to the order of the Court save as to costs. Could you ask him if he consents to his case being remitted to the Federal Court of Australia?
APPLICANT S505/2003 (through interpreter): No objection. That is all right, your Honour.
HIS HONOUR: In that case I make the usual order which is that the matter goes to the Federal Court. Thank you.
At 10.21 am Re The Honourable Philip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant S507/2003 was called.
MS S.E. HANSTEIN: May it please, I appear for the first respondent. (instructed by Blake Dawson Waldron)
HIS HONOUR: Are you expecting the applicant to be here?
MS HANSTEIN: We have had no communication with the applicant. I understand he is not here this morning.
HIS HONOUR: Could the matter be called outside the Court. While that is being done, I should say that the Deputy Registrar has certified that he has been advised by the solicitor for the second respondent that the second respondent will submit to the order of the Court save as to costs.
COURT OFFICER: No appearance.
HIS HONOUR: Thank you. In that case, I make the usual order in that matter which means that it has not been a very strenuous morning for you, Ms Hanstein.
At 10.22 am Re The Honourable Amanda Vanstone, Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant S8/2004 was called.
APPLICANT S8/2004 appeared in person.
MR A. MARKUS: If your Honour pleases, I appear for the first respondent. (instructed by Australian Government Solicitor)
HIS HONOUR: Could you ask the applicant if he consents to the usual orders being made of remittal to the Federal Court.
APPLICANT S8/2004 (through interpreter): Yes, your Honour, I consent.
HIS HONOUR: The Deputy Registrar has certified that he has been advised by the solicitor for the second respondent that the second respondent will submit to the order of the Court save as to costs. I make the usual order in this case.
MR MARKUS: If the Court pleases.
At 10.23 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S450/2003 was called.
MR Z. CHAMI: May it please, your Honour, I appear for the respondent Minister with the other parties submitting. (instructed by Clayton Utz)
HIS HONOUR: Yes, Mr Chami.
MR CHAMI: Your Honour, I hand up a consent to remission of application. I am not expecting the applicant as he, in fact, sent to my firm a signed consent to remit an application form upon invitation to consent to the remittal.
HIS HONOUR: Is this gentleman the applicant in S450?
MR CHAMI: He is, your Honour, so I take back what I said.
APPLICANT S450/2003 appeared in person.
HIS HONOUR: Would you ask him whether he consents to his matter being remitted to the Federal Court.
APPLICANT S450/2003 (through interpreter): No objection. That is all right. No objection, I consent to it.
HIS HONOUR: Mr Chami for the Minister has handed to the Court a consent to remission of the application. The applicant has also indicated that he consents. Accordingly, I make the usual orders. In that matter I should also say that the Deputy Registrar has certified that he has been advised by the solicitor for the second and third respondents that they will submit to the order of the Court save as to costs.
At 10.25 am Re Secretary of the Department of Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S375/2003 was called.
APPLICANT S375/2003 appeared in person.
MR A. MARKUS: If your Honour pleases, I appear for the second and third respondents. (instructed by Australian Government Solicitor)
MAY DABLIZ, affirmed as interpreter:
HIS HONOUR: The Deputy Registrar has certified that he has been advised by the solicitor for the first respondent that the first respondent will submit to the order of the Court save as to costs. Mr Markus, you are content for this to be remitted?
MR MARKUS: Yes, your Honour.
HIS HONOUR: Could you ask him if he is content for the usual orders to be made in relation to the remission of his matter to the Federal Court of Australia.
APPLICANT S375/2003 (through interpreter): Just, you know, your Honour, I am seeking like an explanation of – clarification for one thing. Can I - - -
HIS HONOUR: Certainly, yes.
APPLICANT S375/2003 (through interpreter): First of all, I do not have any legal representative and then I do not have any permission to work, so I do not know what the procedure to do or what I have to do. I have been to Legal Aid seeking like representation but they did not represent me. So can you grant me permission for work so I can afford the costs of my application?
HIS HONOUR: I am afraid I cannot grant that permission. As to knowing what is happening, I think you will find at the back of the Court orders which indicate what will happen if the usual order is made. The main point I would make is that the rights of the applicant will be the same in the Federal Court as they are in this Court. It is just that it will be that court that looks into the questions rather than this Court for the time being. Could you explain that to him.
APPLICANT S375/2003 (through interpreter): Your Honour, I am after fairness in the Court, so if I can ask for those things in the Federal Court, yes, I consent to that.
HIS HONOUR: Thank you. It is not entirely clear whether the applicant fully consents to the remitter and he has raised various difficulties affecting his personal position, which are that, in effect, he has no income and no legal representation, but whether or not he consents the matter should be remitted to the Federal Court and I make the usual orders. Thank you.
At 10.30 am Re The Secretary of the Department of Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S376/2003 was called.
APPLICANT S376/2003 appeared in person.
MR A. MARKUS: If the Court pleases, I appear for the second respondent. (instructed by the Australian Government Solicitor)
HIS HONOUR: The Deputy Registrar has certified that he has been advised by the solicitor for the first and third respondents that they will submit to the order of the Court save as to costs. Mr Markus, you are content for the matter to be remitted?
MR MARKUS: Yes, your Honour.
HIS HONOUR: Could you ask the applicant whether he consents to the matter being remitted to the Federal Court.
APPLICANT S376/2003 (through interpreter): I prefer that my application be remitted to the Federal Magistrates Court because I do not have any legal representation and I do not have any income.
HIS HONOUR: Yes, thank you. The applicant does not consent to remitter to the Federal Court but does consent to the remitter to the Federal Magistrates Court. He points out that he has no legal representation and no income. These are not in themselves reasons for remitting the matter to the Federal Magistrates Court rather than the Federal Court of Australia. Accordingly, I make the usual orders.
MR MARKUS: If the Court pleases.
At 10.32 am Re The Secretary of the Department of Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S377/2003 was called.
APPLICANT S377/2003 appeared in person.
MR A. MARKUS: If your Honour pleases, I appear for the second respondent. (instructed by the Australian Government Solicitor)
HIS HONOUR: Could you ask him if he consents to the matter being remitted to the Federal Court of Australia.
APPLICANT S377/2003 (through interpreter): For the same reasons, no legal representation, no income, I prefer to be remitted to the Federal Magistrates Court.
HIS HONOUR: Yes, thank you. The Deputy Registrar has certified that he has been advised by the solicitor for the first and third respondents that they will submit to the order of the Court, save as to costs. The applicant is content for remittal to the Federal Magistrates Court but not to the Federal Court of Australia. The grounds he advances are his lack of income and lack of representation. As I have explained in other matters, these are not in themselves grounds for preferring the Federal Magistrates Court over the Federal Court of Australia. Therefore I make the usual orders.
MR MARKUS: If the Court pleases.
HIS HONOUR: Thank you very much for your assistance.
At 10.34 am Re The Secretary of the Department of Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant S503/2003 was called.
MR Z. CHAMI: May it please the Court, I appear for the first respondent. (instructed by Clayton Utz)
HIS HONOUR: Let us just see whether the applicant in this matter is present. Is there anyone in Court who is the applicant in S503? Could you have that called outside. While that is being done, the Deputy Registrar has certified that he has been advised by the solicitor for the second respondent that the second respondent will submit to the order of the Court except as to costs.
COURT OFFICER: No appearance, your Honour.
HIS HONOUR: Thank you. I make the usual order that applies to parties who are not in attendance.
MR CHAMI: It will have the same effect and result, your Honour, as the order that you have just made, but I just hand up a consent to remission of application form which has been signed by the applicant, upon invitation by the Minister.
HIS HONOUR: I will place it with the file, the consent to remission of application which Mr Chami has handed to the Court.
At 10.35 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S551/2003 was called.
APPLICANT S551/2003 appeared in person.
MR A. MARKUS: If your Honour pleases, I appear for the first respondent. (instructed by the Australian Government Solicitor)
HIS HONOUR: The Deputy Registrar has certified that he has been advised by the solicitor for the second and third respondents that they will submit to the order of the Court save as to costs. Mr Markus, is your client’s position still the same, that the matter should be struck out rather than remitted?
MR MARKUS: Yes, that is correct.
HIS HONOUR: The applicant has filed two affidavits on 27 October 2003. Do you object to any part of them, Mr Markus?
MR MARKUS: Your Honour, I do not object to those documents being before your Honour for the purpose of determining my client’s application.
HIS HONOUR: Yes. You rely on Angela Margaret Nanson’s affidavit that was filed on 13 February 2004?
MR MARKUS: I do, your Honour. I do wish to say something about it which is rather embarrassing, but here we go. If your Honour looks at the title of the proceedings, Ms Nanson seems to have referred to Applicant S519 of 2003 as opposed to S551, and I must apologise.
HIS HONOUR: Shall I just amend that?
MR MARKUS: If your Honour could.
HIS HONOUR: Mr Markus has drawn attention to the fact that the applicant is wrongly identified in Ms Nanson’s affidavit and I amend in handwriting the letter and figures S519 to S551 in red ink, which I initial and date. Could you ask the applicant if he has received an affidavit of Angela Margaret Manson, which was filed on 13 February.
APPLICANT S551/2003 (through interpreter): Yes, I received, your Honour.
HIS HONOUR: Thank you. Do you object to the Court looking at that affidavit?
APPLICANT S551/2003 (through interpreter): I am not represented, your Honour. I do not have a barrister.
HIS HONOUR: Yes, but given that he does not have a barrister or a solicitor, does he wish to object to any part of the affidavit?
APPLICANT S551/2003 (through interpreter): I do not object, your Honour.
HIS HONOUR: The papers indicate that the applicant contends that Muin’s Case had not been decided at the time of Justice Heerey’s decision, Mr Markus, and he contends that he now wants to rely on Muin’s Case. Does that affect the strength of the argument advanced by the Australian Government Solicitor in the letter that was sent?
MR MARKUS: We would not believe that to be the case, your Honour. Your Honour, the applicant has previously commenced proceedings in this Court invoking the same jurisdiction as the present proceeding, that is, this Court’s jurisdiction pursuant to section 75(v).
HIS HONOUR: That was the proceeding that Justice Hayne remitted part of on 23 November 1999?
MR MARKUS: That is correct, your Honour. Your Honour, Justice Heerey, when he heard the matter in May 2001, has doubted the proceedings exercising the same jurisdiction as the applicant now seeks to invoke.
HIS HONOUR: Can we cut through this. Is your point simply this, that just because the law might change or the law might be perceived differently in the year 2002 from the way it was perceived in the year 1999, or 2000 or 2001, does not give a person who might be able to take advantage of that change in the law an opportunity to recommence proceedings? All the rights have to be determined on one occasion. If anyone had wanted to argue then that a principle akin to the principle in Muin was the law, that was the time for doing it.
MR MARKUS: Your Honour, if the applicant does have some basis for asserting some sort of an error, it could have been open to the applicant to seek leave to appeal from the judgment of his Honour Justice Heerey and to seek the necessary extension of time. In view of the fact that an appeal to the Full Court of the Federal Court of Australia is not an appeal....., if he wished to do so, he could have sought leave to file further evidence. He has not done that, your Honour. With the greatest respect to the applicant, he is, in effect, seeking review of a decision of the RRT which was made some eight years ago now and the affidavit which he has filed – I should say maybe affidavits, your Honour - - -
HIS HONOUR: There are two. There is sort of a short one and a long one. Which one?
MR MARKUS: Yes, your Honour. The short affidavit, your Honour, I do not think takes matters very much further, but if one looks at the longer affidavit of the applicant which he has filed in these proceedings, do not establish or plead any fact that would be capable of raising the Muin and Lie type of issue. There is a reference to an alleged breach of the rules of natural justice on the second page of the affidavit under the heading “The grounds of complaints in respect of the decision”.
HIS HONOUR: That is the short affidavit, yes.
MR MARKUS: I am sorry, your Honour, that is the long affidavit I was referring to.
HIS HONOUR: I have an affidavit which is five pages long, the second page of which has heading “c) The grounds of complaints in respect of the decision”, then I have a long affidavit, which must be nearly 40 pages long, the pages of which are not all numbered, which does not have any such heading on the second page. Therefore, I think you are talking about the shorter affidavit.
MR MARKUS: Yes, your Honour. I think I was at cross-purposes. I was looking at the body of the affidavit. The shorter affidavit, by your Honour’s definition, is actually longer. The longer affidavit is longer because it annexes documents, your Honour.
HIS HONOUR: It does not exhibit them, therefore, they are part of the affidavit. Anyway, page 2 contends there was a breach of the rules of natural justice.
MR MARKUS: Page 2, under the heading “The
grounds of complaints in respect of the decision” states:
The tribunal in its decision of 20 May 1996 (the decision) failed in its written statement that a breach of the rules of natural justice. therefore it raises the ground under section 476 of the Migration Act 1958.
I am not sure exactly what that sentence means but
there is a reference to breach of the rules of natural justice. If
your Honour
reads on, there is nothing said in the affidavit that in any
way raises the sort of issue that was the basis of this Court’s
judgment
in Muin and Lie. Insofar as any reliance is placed on the
judgment, this particular pleading does not suggest that that has any relevance
to these
proceedings, in any event.
HIS HONOUR: I think I can interrupt, Mr Markus. Could you ask the applicant if there is anything more he wants to say, apart from what he has said in his affidavits, about why the matter should not be struck out?
APPLICANT S551/2003 (through interpreter): In relation to the case of Muin and Lie, your Honour, I do not have a barrister, therefore, I am unable to comment, but if I have a barrister I will be able to do something. I seek assistance from this Court to get legal representation, a barrister.
HIS HONOUR: Yes. Is there anything else the applicant wants to say?
APPLICANT S551/2003 (through interpreter): I have seven children and two of them have been granted permanent residency and they are now citizens. Two children were born here. I also suffer from a medical condition and I have some problems with my neck. I need legal representation to litigate this matter.
HIS HONOUR: Yes, thank you. Anything else?
APPLICANT S551/2003 (through interpreter): There is nothing else, your Honour.
HIS HONOUR: Mr Markus, if we treat that as an application for an adjournment, is that opposed?
MR MARKUS: Yes, your Honour.
HIS HONOUR: That is all right, thank you.
In this matter two affidavits of the applicant filed on 27 October 2003 and an affidavit of Angela Margaret Nanson filed on 13 February 2004 have been read. They reveal the following circumstances. On 22 October 1994 the applicant arrived in Australia. On 23 November 1994 he applied for a protection visa. On 5 April 1995 the Minister’s delegate refused that application. On 20 May 1996 the Refugee Review Tribunal upheld that decision.
The applicant then filed an application in this Court seeking relief under section 75(v) of the Constitution. On 23 November 1999 Justice Hayne remitted part of that application to the Federal Court. On 4 May 2001 Justice Heerey dismissed the application. On 27 February 2002 the applicant filed a notice of discontinuance for the balance of his application, that is to say that part which had not been remitted to the Federal Court.
On 27 October 2003 the applicant filed a draft order nisi seeking writs of mandamus and certiorari and an injunction in respect of the Refugee Review Tribunal decision of 20 May 1996. On 21 January 2004 the Australian Government Solicitor wrote a letter contending that in the light of the above circumstances, the present application was an abuse of process which should be struck out, if not discontinued. The evidence does not contain any reply to that letter.
The papers suggest that the applicant wishes to contend that the decision of this Court in Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal [2002] HCA 30 given on 8 August 2002 is desired to be relied on and they had not been decided at the time of Justice Heerey’s decision.
The applicant contends that if he had a barrister he would be able to turn the reasoning of the Court in those decisions to his advantage. He seeks assistance from this Court in order to obtain legal representation. He says that he has seven children, of whom two have been granted permanent residency and are now citizens and two were born in this country. He said that he suffered from a medical condition, having problems with his neck, and he said that he needed legal representation for the matter to be litigated properly.
I took that as an application for an adjournment for the purpose of getting legal representation. In view of the fact that the proceedings, in their latest phase in this Court, started on 27 October 2003, since which time there has been some opportunity to get legal representation, the application should be refused.
As to the substance of the application, Mr Markus, for the Minister, drew attention to the delays in the matter. He also said that it would have been possible to have sought leave from the Full Federal Court of Australia to appeal from the judgment of Justice Heerey out of time, if it were thought there was some point open following the decision in Muin’s Case. No application has been made to the Full Federal Court. In any event, the material filed and read today does not disclose any factual premise which would support the application of the reasoning in Muin’s Case.
In all the circumstances, the contention of the Australian Government Solicitor that the application should be struck out as an abuse of process is correct. I dismiss the proceedings with costs.
Is there any other order necessary?
MR MARKUS: If your Honour could certify - - -
HIS HONOUR: I certify that this was a proper matter for the attendance of counsel in Chambers.
APPLICANT S551/2003 (through interpreter): Your Honour, I do not have any money to pay.
HIS HONOUR: I am afraid that means only probably that the Minister will not be able to get the money, but it is not a reason for not making the order unfortunately.
APPLICANT S551/2003 (through interpreter): I was financially incapable, your Honour, to litigate. That was my problem.
HIS HONOUR: I am afraid that too is not a reason for not making the order. Thank you.
At 10.54 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S434/2003 was recalled.
HIS HONOUR: I think perhaps we will take the matter in which you are appearing, Mr Silva. The trouble with that matter is I was not aware of the Minister’s position and we might just take a little time to read the affidavits. I think we got to this stage. Just in case I have not done so earlier, can I indicate that the Deputy Registrar has certified that he has been advised by the solicitor for the second and third respondents that they will submit to the order of the Court save as to costs.
I think we had reached this position. Before today the applicant had filed two affidavits on 28 July 2003 and, without disrespect to them for what they are worth, you read them and rely on them?
MR SILVA: Yes, your Honour.
HIS HONOUR: And also in Court today the applicant, or rather Mr Silva on his behalf, had filed an affidavit sworn on 11 February 2004 and one sworn on 12 February 2004. Do you object to any part of any of those four affidavits, Mr Markus?
MR MARKUS: No, your Honour. I should say that I do not necessarily consider them relevant, but subject to that observation I do not.
HIS HONOUR: Mr Markus, you rely on Judith Pownall’s affidavit filed on 13 February 2004?
MR MARKUS: I do, your Honour.
HIS HONOUR: Do you object to any part of that, Mr Silva?
MR SILVA: No, your Honour.
HIS HONOUR: Well, I might just spend a few minutes looking through these affidavits. Mr Silva, why should the application not be struck out in view of the fact that the grounds agitated under section 39B of the Judiciary Act before Justice Tamberlin appear to be of the same general character as those agitated in the application in this Court?
MR SILVA: Your Honour, there is a draft grounds of review within the affidavit of the respondent.
HIS HONOUR: Yes. You are speaking of the draft order nisi, are you?
MR SILVA: Your Honour, at the end of the respondent’s affidavit there is a draft grounds of review prepared by us, right at the end of the affidavit.
HIS HONOUR: Which of the four affidavits?
MR SILVA: It is 22nd to 24th of the pages of the respondent’s affidavit, your Honour – the last document.
HIS HONOUR: Well, there are four affidavits. One is largely the transcript of the Tribunal hearing, one is about the Bangladesh Islamic Party, one is one page in length and one, which was filed on 28 July 2003 - - -
MR SILVA: Sorry, your Honour. I am referring to the last three pages of the respondent’s affidavit.
HIS HONOUR: Yes, thank you, I have those. Now, where do we go from there?
MR SILVA: I am not sure whether your Honour had looked at that.
HIS HONOUR: Actually I have seen that. My point is simply this: the relief sought before Justice Tamberlin and the relief sought under section 75(v) of the Constitution are virtually identical forms of relief. Either those draft grounds of review over the three pages you have drawn attention to were agitated before Justice Tamberlin or they were not. If they were, it is an abuse of process to reagitate them. If they were not, it is an abuse of process to bring them up when there was an opportunity to do so before him.
MR SILVA: Your Honour, the grounds on which the respondent can allege abuse of process, one is res judicata and second is the Anshun estoppel.
HIS HONOUR: More than that, I think. You cannot have people coming again and again and again to a single Justice of this Court, for example, seeking relief under 75(v) and you cannot have, can you, people going first to a Federal Court judge seeking that type of relief and then coming to a Judge of this Court seeking that type of relief? It may be that when you said res judicata and Anshun estoppel, what I am saying is caught up within the Anshun estoppel. That is the essential basis of the Minister’s stand, is it not, that matters either have been already resolved or, if they were not already resolved, the relevant points should have been raised?
MR SILVA: Your Honour, my understanding of the respondent’s position is that this will be covered under the Anshun estoppel. Am I right?
HIS HONOUR: Probably.
MR SILVA: Yes.
HIS HONOUR: You could well be right.
MR SILVA: If that is the case, Anshun estoppel applies - - -
MR MARKUS: Your Honour, can I just clarify my client’s position in relation to this matter?
HIS HONOUR: Yes.
MR MARKUS: In fact, we would say regarding this proposed application – and there are slight differences in the various matters, but in this particular case we would say that both res judicata and the issue estoppel apply to the issues sought to be raised. I can clarify my position by pointing this out, your Honour. It is the first respondent’s submission that in determining that res judicata applies to a particular situation one would look at the substance of the proceedings. Relevantly, section 39B of the Judiciary Act gave the Federal Court.....jurisdiction in relation to the decision sought to be challenged today. This Court has original jurisdiction pursuant to section 75(v) of the Constitution.
Your Honour, in relation to the particular issues that are sought to be raised, the proposed draft grounds of review ultimately allege a lack of bona fides and bias and denial of procedural fairness and various other matters. If your Honour looks at the decision of his Honour Justice Tamberlin, which appears at - - -
HIS HONOUR: Exhibit 2.
MR MARKUS: - - - exhibit JP-2, your Honour will see in paragraphs 3 and 4 that Justice Tamberlin, whilst relying on the Full Federal Court judgment in NAAV, also made other findings and, in effect, his Honour concluded that no error of law or error of principle has been established. His Honour specifically addressed the question of bona fides, his Honour specifically addressed bias or breach of natural justice, in the middle of paragraph 4. Whilst one does have some difficulty in identifying exactly what grounds there are alleged, simply looking at the application which appears at exhibit JP-1, looking at his Honour’s judgment, it appears clear that there was an allegation of an error of law, there was some allegation of bias, there was some allegation of a breach of natural justice. Nothing is being alleged, in my respectful submission, in the present proceeding that is not actually covered by the judgment of his Honour as far as the ground of review goes.
Now, that, as we understand the law, would establish both res judicata and issue estoppel, but were we incorrect in that assertion, your Honour, and were it necessary for the respondent to fall back on the Anshun principles, we would say that there has been no explanation at all, let alone a proper explanation, why in this case the Court ought to exercise any discretion that it would have in the sense that there has been no proper attempt to identify special circumstances. None of the affidavits that the applicant has filed even attempt to identify any special circumstance.
HIS HONOUR: I think we have your position clear.
MR MARKUS: Thank you.
HIS HONOUR: Mr Silva can attack it.
MR SILVA: Your Honour, the respondent’s affidavit was received Friday evening, so this is the time for me to address if that is insufficient circumstances. Now, I like to clearly deal with res judicata separately and Anshun estoppel separately. I believe those two are the grounds the respondent is advancing for the argument of abuse of process.
Now, res judicata applies when a similar issue is being raised in the earlier proceeding and the current one. In the earlier proceeding, as we referred to the decision of his Honour on paragraph 3, his Honour says that what the applicant, who was unrepresented, tried to do was advance the – asked for reveal the merits and his Honour says that there was no legal argument advanced. So clearly there is a very different situation at the moment. We have very detailed grounds of review. We have nine grounds of review. We are alleging very serious error of no bona fide exercise of jurisdiction. We are alleging that the Tribunal member’s mind was closed – that again another bias ground. We are alleging natural justice ground. We are alleging Wednesbury unreasonableness. So there are several grounds that we are alleging at the moment. None of them were alleged before his Honour. So clearly res judicata cannot apply because the issues raised there and here are different.
HIS HONOUR:
Paragraph 9 of the application which was considered by
Justice Tamberlin, which is exhibit JP-1 to Ms Pownall’s
affidavit,
says:
The Tribunal’s ignoring of relevant evidence and its finding in the face of contradicting independent evidence which indicates actual bias constitute jurisdictional error –
and so on. That seems to
overlap substantially with a number of the points made in the draft grounds of
review. Draft ground 1 is
bias because of rudeness, dramatisation,
ridicule and insult. Paragraph 2 is a closed mind, that is a form of bias.
Paragraph 3
seems to be in a different category. Paragraph 4 seems to
allege breach of natural justice in the sense of a procedural lack of
fairness
through rushing. Paragraph 5 is a lack of procedural fairness.
Paragraph 6 is a failure to give an opportunity to elaborate,
which is
another form of procedural unfairness. So there does seem to be quite a lot in
the draft grounds of review that fell within
the label employed in the
application.
MR SILVA: Your Honour, his Honour, when he dealt with the issue here dealt clearly on the basis there was no clear legal argument forwarded. His Honour summarises and says the applicant tried to advance review of merits.
HIS HONOUR: But he did evidently make some inquiry for himself because in paragraph 4 he said there has been no case made out in relation to bias or breach of natural justice.
MR SILVA: Yes, indeed.
HIS HONOUR: Looking through the material, he could not find anything which would support a conclusion of bias or breach of natural justice.
MR SILVA: That is indeed our point, your Honour. That should support our position that natural justice was not advanced as a ground and neither was - - -
HIS HONOUR: Well, either it was or it was not. If it was, it is res judicata. If it was not, why does not Anshun apply?
MR SILVA: All right. So if you leave - - -
HIS HONOUR: Let us say you were right about res judicata.
MR SILVA: Right. If you leave Anshun estoppel, we carry our argument in two ways. One is that at the time of the application, at the time of the hearing, S157 decision has not come. Natural justice – there was a question as to the application of natural justice. There was a question as to the application of Wednesbury unreasonableness, which we are alleging at the moment. So, even if the applicant had wanted, he could not have advanced those two grounds, and those two are serious grounds we are alleging here.
HIS HONOUR: Anyone can advance anything and be told by a trial judge - I know your client’s unrepresented and this is an unrealistic thing to say, but anyone can advance any argument. The mere fact that a trial judge rejects it and then an intermediate court of appeal rejects it does not mean that it cannot eventually be validated in this Court.
MR SILVA: I think the point, your Honour, the way that we are looking at, is that was those grounds available? Those grounds were not available. How could they have been raised? So that is one way of looking at it. The other point is we feel there have been special circumstances.
HIS HONOUR: Yes. They are?
MR SILVA: And they are that the applicant was not represented and, second, the serious nature of the allegations. It is bias, closed mind, and we have got several grounds of similar – and, in addition to that, your Honour, further special grounds have been mentioned before. They are the fact that this involves life and the liberty of the applicant. The Minister was not subject to cost and time pressures. Review is a complex bifurcated process – and the state of authorities, of course, I was talking about. These reasons were given in a case called BC v The Minister.
HIS HONOUR: We have got not represented, serious nature of allegations, the case involves the life and liberty of the applicant, the Minister is not subject to cost and time pressures. What was the last one before - - -
MR SILVA: Review is a complex bifurcated process. I am actually taking.....from BC v The Minister, and also the state of authorities. So we believe that at the time we are to answer the Anshun estoppel issue, at the time there were two very important grounds that were not available. Secondly, there are many special circumstances. Even if your Honour is against me on that, there are special circumstances that require that the applicant be given an opportunity. We have given two affidavits today, your Honour. One is the transcript and the other one is some information about the existence of Bangladesh Islamic Party.
In the Tribunal’s decision that has been an ongoing feature. That was a very, very important issue that was used to discredit the applicant. The Tribunal said there is no party called Bangladesh Islamic Party and, secondly, the Tribunal said there cannot be a party without a Bengali name. Now, one of our affidavits very clearly shows that that is wrong – the affidavit dated 11 February. There are several documents that show the existence of Bangladesh Islamic Party. The Tribunal used that issue repeatedly – we can see that in the transcript, you can see that in the decision – repeatedly used it in a very, very strong manner to discredit the applicant saying that there was no party called Bangladesh Islamic Party, and these documents clearly show the existence. It existed in 1996, existed in 2001, existed in 2003, and we can provide further evidence of its continuous existence. That was one of the major issues used to discredit the applicant, and I can take your Honour, if your Honour wishes, in the transcript where it is, or in the decision where it is.
HIS HONOUR: Do we actually have the decision of the Tribunal as distinct from the transcript?
MR SILVA: The decision of the Tribunal, your Honour?
HIS HONOUR: We have – yes, here we are. It is exhibit A. Yes, I understand that. Any further - - -
MR SILVA: Just one. Your Honour, I am quite aware of the time.
HIS HONOUR: That is all right.
MR SILVA: But we believe we have serious case, and also I can acquaint you just one instance where the Tribunal is telling the applicant, “I am cutting you off. I have heard enough. You haven’t told a true word in the entire hearing”.
HIS HONOUR: Just one moment. What page is that?
MR SILVA: It is page 17, your Honour, it is midway. It starts with, “Now I am going to adjourn this matter”.
HIS HONOUR: Yes.
MR SILVA: And I forgot to mention the Tribunal is acknowledging it is doing abruptly. Now, this is just only one example. If your Honour wishes, I can go through and illustrate my case because we believe the applicant will be – it will be contrary to justice if the applicant does not have an opportunity to advance his case where he has made very serious allegations.
HIS HONOUR: He had an opportunity in front of Justice Tamberlin.
MR SILVA: Yes, your Honour. He had opportunity, within his capabilities and within the law existing at that time, he did. Now he has opportunity and he is trying to – I mean he is obviously – I do not want to repeat what I have done before, but we believe that it is a very strong case and we should be given an opportunity to pursue the matter.
HIS HONOUR: Thank you. Mr Silva, four affidavits for the applicant have been read. Two were filed on 28 July 2003, one on 11 February 2004 and one on 12 February 2004. In addition, the Minister has filed an affidavit and read an affidavit of Judith Pownall which was filed on 13 February 2004. They reveal the following circumstances.
On 16 July 1996 the applicant arrived in Australia. On 4 January 2000 he applied for a protection visa. On 6 March 2000 a delegate of the Minister refused that application. On 8 May 2002 the Refugee Review Tribunal decided that the Minister’s delegate was correct. The Tribunal was not satisfied that the applicant faced a real chance of Convention-related persecution in Bangladesh. On 3 June 2002 the applicant filed an application under section 39B of the Judiciary Act 1903 (Cth) and under the Migration Act 1958 (Cth) for review of the Tribunal’s decision.
Paragraph 3 of that application appears to indicate that writs of mandamus and prohibition and an injunction was sought against an officer of the Commonwealth. On 1 November 2002 Justice Tamberlin dismissed that application and no appeal was filed. In a letter on 26 January 2004 the Australia Government Solicitor submitted in a letter to the applicant that since the present application to this Court, which had been filed on 28 July 2003, sought writs of mandamus prohibition and certiorari in relation to the same decision of the Tribunal as that to which Justice Tamberlin’s decision related, the present application was an abuse of process which would be struck out if not discontinued. The applicant’s solicitor sent a fax on 12 February 2004 consenting to remission of the matter to the Federal Court and enclosing draft grounds of review.
The stance of the Minister in this Court is as follows. In the first place it is contended that Justice Tamberlin’s decision has created res judicata. He submits that the substance of the proceedings before Justice Tamberlin consisted of a complaint about bias and of breaches of the rules of natural justice. He specifically referred to paragraphs 4 and 5 of Justice Tamberlin’s judgment which in some measure appeared to deal with questions of good faith, bias and other breaches of natural justice. He submitted that nothing is being alleged in the present proceedings which is not covered by those verbal characterisations employed by Justice Tamberlin.
In the alternative, he submitted that if there were no res judicata worked, the principle enunciated in Anshun’s Case operated as a bar. In a nutshell he submitted that no explanation had been offered to this Court as to why the Court should exercise its discretion in favour of permitting the applicant to start the further proceedings before this Court additional to those decided by Justice Tamberlin. It was submitted that no special circumstances were shown.
The solicitor appearing for the applicant, in effect, submitted that the applicant, who was unrepresented before Justice Tamberlin, had failed to argue most, if not all, of the grounds of review which fall within the 10 paragraphs of the draft grounds of review sent by the applicant’s solicitor to the Australian Government Solicitor on 12 February. In particular, it was submitted for the applicant that the applicant’s concentration before Justice Tamberlin was on arguments relating to the factual merits of the case. It is common, of course, for challenges to the conclusions of the Tribunal to be couched by unrepresented applicants in that way. It is only applicants who have the benefit of legal advice who are able to turn their minds to the, in a sense, relatively narrow methods of challenging Tribunal decisions. At all events, the applicant contended today that there had been no attempt before Justice Tamberlin to isolate some permissible ground of attack, whereas the grounds of attack now being urged were meritorious.
In the event that those arguments failed it was then submitted that there were special circumstances within the meaning of the principle enunciated in Anshun’s Case. It was pointed out that the decision of this Court in S157 had not been decided at the time of the application to Justice Tamberlin. It was submitted that arguments of a natural justice type and of a Wednesbury reasonableness type were now open to the applicant which had not been open to him before.
The special circumstances identified were that he was not represented but the allegations he now wished to make against the Tribunal of mala fides and bias and procedural unfairness were serious ones that, from the applicant’s point of view of the proceedings, involve his life and liberty which it is argued would be endangered if he had to return to Bangladesh. It was pointed out that he was against an opponent, namely the Minister, who was not subject to cost and time pressures. He pointed to what was described as the complex bifurcated process of the process of review.
It is not easy to reach a conclusion as to
what precisely was contended before Justice Tamberlin because
Justice Tamberlin’s
reasons for judgment are brief and there is no
other record of what might have been agitated before him, save for the terms of
the
application before him. Paragraph 9 of that application did
state:
The Tribunal’s ignoring of relevant evidence and its finding in the face of contradicting independent evidence which indicates actual bias constituted jurisdictional error –
But even that makes it hard
to be clear precisely what was argued before Justice Tamberlin.
One matter that appears to have had at least some influence on the Tribunal’s approach was the question of whether or not there was a party known as the Bangladesh Islamic Party. That question was raised a number of times by the Tribunal member. It was submitted that the Tribunal reached a conclusion that there was no such party or at least that there was no evidence before it to support the view that there was any such party, and having arrived at that view used it to discredit the applicant.
In view of the obscurity of what precisely was laid out for Justice Tamberlin for his consideration, it seems to me the outcome of the application must turn on whether Anshun applies. It is correct, as Mr Markus submitted, in my judgment that no explanation was given as to why the grounds set out in the draft grounds of review were not deployed by the applicant beyond the fact that he was unrepresented.
Attention was drawn to some relatively strong language on the part of the Tribunal and it seems open to infer that the applicant has been in a general sense aggrieved by the Tribunal’s decision and approach. Nothing has been shown to indicate why it was not possible to ventilate those complaints fully at the hearing before Justice Tamberlin.
So far as the evolution of the law may have generated points now available to the applicant which were not available to him at the time of Justice Tamberlin’s hearing, it is perhaps a hard but, I think, a true proposition that absence of access to legal advice is not of itself a ground for not applying the Anshun doctrine.
Accordingly, in my opinion the contention advanced in the Australian Government Solicitor’s letter is sound and the proceedings should be struck out with costs.
MR MARKUS: Would your Honour certify for counsel?
HIS HONOUR: Yes. I certify that this was a proper matter for the attendance of counsel in Chambers.
At 11.33 am Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S519/2003 was recalled.
HIS HONOUR: If I had not already done so, I should indicate that the Deputy Registrar has certified that he has been advised by the solicitor for the second and third respondents that they will submit to the order of the Court save as to costs. Now, I think the position is that you have filed an affidavit on 26 September.
APPLICANT S519/2003: That is right.
HIS HONOUR: And you want to rely on that now?
APPLICANT S519/2003: Yes.
HIS HONOUR: Mr Markus, do you object to that?
MR MARKUS: No, your Honour.
HIS HONOUR: Mr Markus I imagine wants to rely on an affidavit of Andrew John Crockett of 27 January 2004.
MR MARKUS: Thank you.
HIS HONOUR: Have you had a chance to read that affidavit?
APPLICANT S519/2003: Your Honour, I have no legal representation.
HIS HONOUR: Yes, but have you had a chance to read the affidavit?
APPLICANT S519/2003: Yes.
HIS HONOUR: And do you object to it being used?
APPLICANT S519/2003: I do not object.
HIS HONOUR: Thank you. I will just have a look through these papers so that I can understand the case a bit better. Yes. Mr Markus, is this your position, that any attack on the Refugee Review Tribunal’s decision of 18 June 2002 was made first before Justice Emmett who, as it were, repelled the attack and against his decision an attempted appeal was discontinued and then a further attack was made before the Federal Magistrates Court and that was dismissed as an abuse of process, and the present application to this Court filed on 26 September 2003 is really a repetition of the Federal Magistrates Court application and is just as much an abuse of process?
MR MARKUS: Indeed, your Honour.
HIS HONOUR: You contend for res judicata or - - -
MR MARKUS: Your Honour, it is often difficult to confidently identify the grounds pleaded in proceedings below. In the present case, if your Honour looks at the application - - -
HIS HONOUR: To which court?
MR MARKUS: To the Federal Court in the first place, your Honour, which is exhibit AJC-1.
HIS HONOUR: Yes.
MR MARKUS: I think it is page 5 of the affidavit. I will not read out all of the grounds, but your Honour, for example, will see that there is an allegation that procedures were not observed which the Tribunal was duty-bound to observe, in paragraph 9 there is a reference to a denial of procedural fairness, and there are various other areas which, in effect, amount to allegations of failure to consider relevant considerations and the like.
The decision or judgment of his Honour Justice Emmett,
if I could very briefly refer your Honour to page 15 of the affidavit,
which
is page 4 of the reasons, your Honour will see that
his Honour again, having dealt with the matter at the time when the Full
Federal
Court judgment in NAAV was still undisturbed, noted at paragraph
15 that:
Even in the absence of s 474, it appears to me that the Tribunal would have been entitled to deal with the claims in the way it did.
In effect, your Honour, Justice Emmett held
that the grounds as pleaded were simply not made out. Now, in relation to the
proceeding
that was commenced in the Federal Magistrates Court, your Honour
will see that application at exhibit AJC-5, page 25 of the
affidavit.
HIS HONOUR: Yes.
MR MARKUS: There is
an allegation of jurisdictional error, failure to take into account relevant
consideration. There is unjustness and denial
of procedural fairness,
unreasonable exercise of power. The learned federal magistrate in her judgment
at exhibit AJC-7, page 38
of the affidavit, at
paragraph 11.....as follows, “In that case Federal Magistrate
Driver” – I am sorry, there
is a reference to an earlier case
dealing with an allegation of abuse of process on the basis that some form of
estoppel applies.
I am sorry, your Honour, I should have started from the
middle of that paragraph:
Further, it is apparent from an examination of the reasons for decision of Emmett J that the decision would be unaffected by the decision in Plaintiff S157, as His Honour took the view that even in the absence of s 474 the Tribunal would have been entitled to deal with the applicant’s claims as it did.
Then at paragraph 12 her
Honour observes:
In these circumstances it is apparent that the issue whether there was a reviewable error in the Tribunal decision has been dealt with by the Federal Court. It should not be re-litigated in this Court.
Then
there is a reference in paragraph 13 to res judicata and issue estoppel.
Her Honour states:
the principles relating to res judicata and issue estoppel are of assistance in determining whether or not the subsequent action is an abuse of process –
So her Honour did not specifically
determine it on the basis that res judicata applied, but her Honour
outlined the principles to
assist her to arrive to the conclusion that the
application was an abuse of process.
Similarly, your Honour, I think it is difficult in all the circumstances to say that res judicata and issue estoppel applies to every part of the proceeding that the applicant now seeks to bring. We, nevertheless, rely on the Anshun principles, rely on the judgment of her Honour in the Federal Magistrates Court and say that in the circumstances where there was no application for leave to appeal from what was clearly an interlocutory judgment, so we cannot as such rely on estoppel in relation to the judgment of her Honour Federal Magistrate Barnes, but we say that that exacerbates the abuse, as it were.
The applicant has now commenced a third round, in effect, of seeking to review a decision of the Tribunal, on each occasion seeking to invoke jurisdiction that for all intents and purposes is identical. If the Court pleases.
HIS HONOUR: Yes, thank you. Why should the matter be allowed to go on in view of the fact that you have already tried to challenge the Tribunal’s decision before Justice Emmett and then tried to challenge it again before Federal Magistrate Barnes?
APPLICANT S519/2003: Your Honour, I do not have any legal representative now and I do not understand the law. So I need some time to organise a barrister who can dispute on my behalf.
HIS HONOUR: You want the case to be adjourned?
APPLICANT S519/2003: I ask you to remit it to Federal Court or continue it so that a barrister would come before - - -
HIS HONOUR: What is your attitude to - - -
MR MARKUS: That is opposed, your Honour.
HIS HONOUR: You have had – it may not be possible to get a barrister or a lawyer, but you have had quite a lot of time to get one, have you not?
APPLICANT S519/2003: I was not able to afford their fees.....
HIS HONOUR: Apart from that, is there anything you wish to advance?
APPLICANT S519/2003: I am sorry, your Honour?
HIS HONOUR: You have nothing else you want to say?
APPLICANT S519/2003: Nothing else to say.
HIS HONOUR: Thank you. The Minister contends that this matter should be struck out. The background is revealed partly in the applicant’s affidavit filed on 26 September 2003, and an affidavit of Andrew John Crockett filed on 27 January 2004.
The background is that on 13 October 2000 the Minister’s delegate refused the applicant a visa. On 21 May 2002 the Refugee Review Tribunal upheld that decision. On 11 July 2002 an application was made to the Federal Court in part under section 39B of the Judiciary Act 1903 (Cth). That application was dismissed by Justice Emmett of that court on 20 September 2002. On 9 October 2002 a notice of appeal against Justice Emmett’s orders was filed, but on 3 December 2002 it was discontinued.
On 10 December 2002 proceedings were commenced in this Court challenging the decision of the Refugee Review Tribunal, but those proceedings were later discontinued. On 1 May 2003 an application under section 39B of the Judiciary Act was filed in the Federal Magistrates Court of Australia. That was dismissed as an abuse of process on 2 September 2003 by Federal Magistrate Barnes. On 26 September 2003 a further proceeding was filed in this Court in the form of a draft order nisi seeking writs of mandamus and certiorari and an injunction in respect of the decision of the Refugee Review Tribunal which had been successively attacked before Justice Emmett, this Court and the Federal Magistrates Court. On 17 November 2003 the Australian Government Solicitor wrote a letter to the applicant contending that the application should either be discontinued or struck out.
The contention of the Minister is that either the proceedings for Justice Emmett worked a res judicata or issue estoppel or to the extent that those outcomes did not flow, it is an abuse of process within the Anshun principle for the matter to continue in this Court. He conceded that it was difficult to work out either from Justice Emmett’s reasons for judgment or the terms of the application to that court what precisely was in issue, save that at least in part there were contentions of a failure to observe the correct procedures and a failure to afford the applicant natural justice.
Mr Markus, who was representing the Minister, drew attention to the fact that Justice Emmett, so far as the proceedings before him were an attempted review of the merits were invalid, also concluded that the Tribunal was entitled to deal with the applicant’s claims as it did and, further, that the applicant’s reliance on natural justice boiled down to no more than a contention that the Tribunal ought to have reached a different view of the facts from those which it did reach.
Mr Markus also drew attention to the terms of the application to the Federal Magistrates Court which in general terms assigned a number of conventional grounds of judicial review which were mixed up to some extent with factual complaints. He drew attention to the fact that Federal Magistrate Barnes had pointed out that if the applicant were discontented with the reasoning of Justice Emmett either on the basis of the law as it then stood or on the basis of any subsequent development in the law the correct remedy was an appeal to the Full Federal Court. There had, in fact, been a notice of appeal filed, although, as indicated earlier, it had been discontinued.
The applicant asked for an adjournment on the ground that he was not legally qualified and had no legal representation. Without downplaying the difficulties of getting legal representation for a person who said, as the applicant said he was, impecunious, the fact is that since 26 September 2003 time has been available to get legal representation if it can be obtained. Nothing was said to indicate that the grant of any further time would change the position on representation. The applicant did not advance any substantive argument in answer to those which Mr Markus put.
In my opinion, at least on Anshun principles, the
application is an abuse of process because everything which is now being urged
either could have been advanced to
Justice Emmett or was advanced to
Justice Emmett or, if it was not advanced to Justice Emmett, could
have been advanced upon appeal
to the Full Federal Court obtaining whatever
extension of time was necessary. Accordingly, I make the following
orders:
1. The proceedings are dismissed;
2. The applicant must pay the Minister’s costs; and
3. I certify that this was a proper matter for the attendance of counsel in Chambers.
Is there anything else?
MR MARKUS: Nothing further, your Honour.
HIS HONOUR: The Court will now adjourn.
AT 11.54 AM THE MATTERS WERE CONCLUDED
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