Applicant S357/2004, Ex parte - Re MIMIA & Anor [2004] HCATrans 434 (1 November 2004)

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Applicant S357/2004, Ex parte - Re MIMIA & Anor [2004] HCATrans 434 (1 November 2004)

Last Updated: 5 November 2004

[2004] HCATrans 434

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S357 of 2004

In the matter of -

An application for Writs of Certiorari and Mandamus and Prohibition and an Injunction against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte –

APPLICANT S357/2004

Applicant/Prosecutor

HEYDON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 1 NOVEMBER 2004, AT 9.31 AM

Copyright in the High Court of Australia

APPLICANT S357/2004 appeared in person.

MR S.B. LLOYD: May it please the Court, I appear for the first respondent. (instructed by Clayton Utz)

HIS HONOUR: You are the applicant? Do you speak English well?

APPLICANT S357/2004: A little bit.

HIS HONOUR: Is the lady next to you an interpreter?

APPLICANT S357/2004: Yes.

ZOBAID NAHAR SHEIKH, affirmed as interpreter:

HIS HONOUR: I should indicate 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. Yes, Mr Lloyd.

MR LLOYD: If I might just note, the Minister’s position in relation to this matter is that, as indicated in the affidavit filed by the Minister, the matter should not be remitted but should be dismissed, because there is an Anshun estoppel or res judicata from the applicant having taken previous proceedings through to the High Court.

HIS HONOUR: Was any notice given to the applicant that the matter to be determined today would be whether, in effect, the applicant should be removed from the country or simply proceedings removed to the Federal Court? The affidavit does not say that, I do not think. The affidavit of 21 October 2004 of Kathleen Mary Crawley.

MR LLOYD: There was a letter which I could hand up, dated 21 October, which I think was sent, which encloses the affidavit, which says:

We note that the respondents do not consent to the remitter of your draft order nisi and we will rely upon this affidavit in support of the first respondent’s application to dismiss your draft order nisi with costs at the callover on 1 November.

I will hand up that letter.

HIS HONOUR: Show that to the applicant. Did you receive that letter?

APPLICANT S357/2004: Yes.

HIS HONOUR: I think we might have that marked as an exhibit. I mark that letter exhibit A. Perhaps you could just elaborate in a little more detail, Mr Lloyd, the reasons why the matter should not be remitted to the Federal Court, but rather dismissed.

MR LLOYD: Certainly, your Honour. Your Honour will see from exhibit “KMC” that there was the decision of the Tribunal handed down on 6 February 2003. Following that, there was an application to the Federal Court, which is on page 11 of the exhibit. Included in that on page 13 is a ground, admittedly not particularly clearly pleaded, but ground 4 includes a natural justice ground. That matter was heard by Justice Madgwick and determined on 29 April, which appears on page 14. His Honour made orders, which appear on page 22, dismissing the matter.

The applicant appealed. The notice of appeal is on page 23, and I note that the notice of appeal also includes a procedural fairness ground. That was dealt with by the Full Court on 27 November, dismissing the appeal. The order appears on page 34. There was an application for special leave filed on 1 March 2004. There was a deemed abandonment of that application, which appears on page 40.

The respondent contends that there having been already an application relying upon procedural fairness, there is a res judicata, or, in the alternative, given that the ground was never particularly clearly pleaded, it might be an Anshun estoppel. But either way, the applicant has had his opportunity to raise these matters and should be dismissed.

HIS HONOUR: You understand that the Minister has argued that the application you wish to file in this Court should be dismissed or should not be allowed to be filed because you have already had a hearing before Justice Madgwick in the Federal Court, before the Full Federal Court, and you failed an application for special leave to appeal to this Court. Do you understand that?

APPLICANT S357/2004 (through interpreter): Yes.

HIS HONOUR: And your application for special leave to appeal to this Court was dismissed because you took no steps to prosecute it for six months?

APPLICANT S357/2004 (through interpreter): Yes.

HIS HONOUR: Is there anything you want to say in opposition to the Minister?

APPLICANT S357/2004 (through interpreter): Yes, your Honour.

HIS HONOUR: Very well, stand up and say whatever you want to say.

APPLICANT S357/2004 (through interpreter): The ground of my case beginning at the RRT and ending in this Court has gone through without – I did not receive the natural justice. If my case is returned to Federal Court, I can gather my documents and get a good barrister, so I can go through this process.

HIS HONOUR: Yes.

APPLICANT S357/2004 (through interpreter): I think that if my case is returned to Federal Court, I will gather my documents and get a barrister and I will get justice there. My request to the honourable Judge is to send this case to the Federal Court. This is what I have to say. I do not have nothing more to say.

HIS HONOUR: Yes. Thank you. Just take a seat if you wish.

APPLICANT S357/2004: Thank you.

HIS HONOUR: On 22 September 2004, the applicant filed an affidavit in this Court. To it was annexed a draft order nisi seeking orders that the respondents show cause why writs of mandamus and certiorari and injunctions should not issue against the respondents. The grounds on which the relief is sought rest on the contention that the Refugee Review Tribunal denied natural justice to the applicant when it affirmed a decision of a delegate of the Minister refusing to grant a protection visa on 6 February 2003. The applicant refers to the Migration Act 1958 (Cth) sections 418(3) and 424A(1) and says that the Tribunal had material adverse to the applicant to which it did not give the applicant access prior to the Tribunal hearing.

The history after the Tribunal’s decision is as follows. On 29 April 2003, Madgwick J dismissed an application by the applicant for judicial review of the Tribunal’s decision. Among the grounds for review, which were obscurely expressed, was a reference to natural justice, but only as part of an unparticularised allegation that the Tribunal failed to take a relevant consideration into account. Madgwick J did not deal with any natural justice issue and paragraph 11 of his reasons for judgment suggests that none was pressed.

On 27 November 2003, the Full Federal Court dismissed an appeal against Madgwick J’s orders. Among the grounds of appeal was a claim that the Tribunal:

breached the rule of procedural fairness/natural justice . . . because . . . the applicant was not provided [with] an opportunity to make comment on information which the Tribunal relied on.

The Full Court did not explicitly deal with this claim. Like Madgwick J, it was not happy with the extent and quality of the reasons provided by the Tribunal, but it found no jurisdictional error. The applicant then filed an application for special leave to appeal to this Court against the Full Federal Court’s order. The application was filed late, since it was not filed within 28 days of the Full Federal Court’s order: see Order 69A, rule 3 of the High Court Rules.

On 9 September 2004, a Deputy Registrar certified that the applicant had failed to comply with Order 69A, rule 6 of the High Court Rules on or before 1 September 2004 and that accordingly, pursuant to Order 69A, rule 13, the application for special leave was deemed abandoned. Order 69A, rule 6 provides that:

The applicant shall, within 28 days after filing an application, file and serve a summary of argument and a draft notice of appeal on any party who has filed a notice of appearance –

as the Minister had done on 22 March 2004. The position of the Minister is that the application in this Court should be dismissed and that the matter should not be remitted to the Federal Court of Australia. The position of the applicant is that the matter should be remitted to the Federal Court of Australia. He contends that he did not receive natural justice in the courts below and that if his case is returned to the Federal Court he will be able to assemble documents and brief a barrister, so as to prepare the proceedings properly, with a view to obtaining justice in the Federal Court.

The grounds on which the applicant wishes to challenge the Tribunal’s decision in this Court are grounds which could have been pursued in the Federal Court. The reasons for judgment for the Federal Court judges suggest that they were not pressed in the Federal Court, even though the words “natural justice” were used in the applicant’s application for review and even though one ground of appeal to the Full Court raised a natural justice point as indicated above.

The application for special leave referred to Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 but this reference was not supported by any evidence suggesting that the principles stated in that case were applicable. It would be an abuse of process to permit the applicant to proceed with an application in this Court based on a ground which he had an opportunity to pursue in his special leave application in this Court, but which he did not take up. In addition, there is no evidence or other material supporting the applicant’s contention that the Tribunal failed to give him the adverse information that formed the basis of its reasons for refusing his application.

Further, Order 55, rule 18 requires applications for orders nisi for writs of certiorari to be made within six months of the date of the order which it is desired to quash, which is here 14 July 2003. The delay thus exceeds 14 months. Order 55, rule 30 creates a two month time limit in relation to applications for a writ of mandamus. The delay in that regard exceeds 18 months. No satisfactory reason has been supplied in the applicant’s affidavit for extending time.

Accordingly, to the extent that an application has been filed in this Court, it is dismissed, and, to the extent that leave is sought to file it, leave is refused.

MR LLOYD: We would seek costs, your Honour.

HIS HONOUR: I order the applicant to pay the costs of the first respondent. I certify that this was a proper matter for the attendance of counsel in chambers.

AT 9.47 AM THE MATTER WAS CONCLUDED