Applicant S36/2004, Ex parte - Re MIMIA & Ors [2004] HCATrans 82 (17 March 2004)

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Applicant S36/2004, Ex parte - Re MIMIA & Ors [2004] HCATrans 82 (17 March 2004)

Last Updated: 22 March 2004

[2004] HCATrans 082

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S36 of 2004

In the matter of -

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

First Respondent

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Respondent

J.C. BLOUNT in his capacity as a member of the Refugee Review Tribunal

Third Respondent

Ex parte –

APPLICANT S36/2004

Applicant/Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 17 MARCH 2004, AT 9.33 AM

Copyright in the High Court of Australia

__________________

MR S.B. LLOYD: I appear in this matter for the Minister, the first respondent. (instructed by Clayton Utz)

HIS HONOUR: Does the applicant appear in person?

MR LLOYD: Apparently not. The applicant is not here at all.

HIS HONOUR: Well, call application No 1 outside the court, if you would.

COURT OFFICER: No appearance, your Honour.

HIS HONOUR: Thank you. Yes, Mr Lloyd.

MR LLOYD: Your Honour, in my submission, this application should be dismissed with costs.

HIS HONOUR: Yes. You have put in some written submissions, have you not?

MR LLOYD: I have, your Honour.

HIS HONOUR: We might come back to No 1 after we see what is happening in Nos 2 and 3. Call application No 2.

AT 9.35 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 9.40 AM:

HIS HONOUR: Yes, Mr Lloyd.

MR LLOYD: Your Honour, in my submission, in the absence of the applicant and in light of the evidence that is an Anshun estoppel at the very least and no justification for the delay in bringing proceedings in this Court, in any event, it is appropriate to dismiss the application. Given that the applicant did not agree to consental, it is appropriate to certify the matter as appropriate for counsel to appear.

HIS HONOUR: Yes. Could you just take me through your submissions?

MR LLOYD: Certainly.

HIS HONOUR: It might be best, in all the circumstances, to deal with it on some reasoned basis.

MR LLOYD: Certainly. Does your Honour have the affidavit of Ms Sharon Anne Burnett?

HIS HONOUR: Yes, I do

MR LLOYD: The references - - -

HIS HONOUR: Are to the annexures in her affidavit.

MR LLOYD: Yes.

HIS HONOUR: The references in your submissions are to the annexures in that affidavit?

MR LLOYD: Yes. I see that my instructing solicitor has very ably renumbered the affidavit from 1. The references, however, in my submissions are to the court book, which are the numbers on the bottom of the page which are crossed out.

HIS HONOUR: Yes, I was a bit mystified. I see now. I should have said that in matter No 1 the Court holds a certificate from the Deputy Registrar that she has been informed by the solicitor for the second and third respondents, who are the principal member and a member of the Refugee Review Tribunal, that those respondents enter a submitting appearance except as to costs. Yes, Mr Lloyd.

MR LLOYD: Going to my submissions, paragraph 2 simply notes that an application for a protection visa was lodged. That appears at, using the affidavit pages, pages 9 to 42. Then a week later a delegate of the Minister dismissed that application and that decision is - - -

HIS HONOUR: Now, it got to the Tribunal. They handed down a decision on 7 August, which is at page - - -

MR LLOYD: Perhaps one thing to note before getting to that point, your Honour, is on page 62 of the court book the applicant declined the invitation to a hearing before the Tribunal.

HIS HONOUR: Yes, I see.

MR LLOYD: So he did not actually attend the hearing. The decision of the Tribunal begins on page 66 of the affidavit. The substantive reasons begin at page 71.

HIS HONOUR: I see that the applicant has gone back to India, was it, in September 1999?

MR LLOYD: Not back to India; to India. He is a citizen of Bangladesh and his original application, which is more or less all that is referred to, at page 22 refers that he went there for recreation. That is on page 22 of the affidavit.

HIS HONOUR: Yes, I see.

MR LLOYD: That is four months before he came to Australia. There is no relevant event which happened in those four months which is relied upon by him.

HIS HONOUR: And the application for review in the Federal Magistrate’s Court was dismissed by consent, earlier this month – earlier last year, rather, this time last year.

MR LLOYD: That is right your Honour. The applicant was represented in those proceedings by Mr Jones, a solicitor experienced in the field. I see that the affidavit does not include Mr Jones’ affidavit which has the grounds of review. I can tender that if your Honour wants, but I can tell you that the grounds of review were essentially a Muin-type point. So I cannot say that there is an issue estoppel.

HIS HONOUR: No, you cannot, but the nature of the relief here – well, firstly, extensions of time are needed for mandamus and certiorari, I think.

MR LLOYD: That is so.

HIS HONOUR: What is the relevant rule for that?

MR LLOYD: Order 60 rule 6 allows for the grant of time, but the rule which requires a grant of time - - -

HIS HONOUR: Yes, just a minute. Order 60 rule 6.

MR LLOYD: In relation to certiorari, it is Order 55 rule 17, and in relation to mandamus, it is Order 55 rule 30.

HIS HONOUR: Now, the first question would be whether there is any case for the grant of the necessary extension of time.

MR LLOYD: Indeed, and there is an affidavit which is before your Honour of the applicant which was filed on 28 January - - -

HIS HONOUR: Yes, I have it.

MR LLOYD: - - - which has a chronology. There are actually two affidavits. The second one has a subheading “Chronology” and the - - -

HIS HONOUR: Yes, I have both.

MR LLOYD: - - - time limit seems to be dealt with in paragraphs 5 and 6. Part of the difficulty is that the applicant and, indeed, many other people still seem to think that there is some point in coming to this Court as opposed to one of the other two courts. Certainly since October 2001 there has been no relevant distinction in the ambit of jurisdiction. If anything, the other courts have a broader jurisdiction.

HIS HONOUR: Yes

MR LLOYD: There is something of an apparent misconception by the applicant that - - -

HIS HONOUR: Well, there is also the idea that you can apply under section 417 to the Minister and await what happens and if you do not have success there, you can then turn about - - -

MR LLOYD: Yes. There is a line of authority which I have not referred to in my submissions to the effect all single judges of the Federal Court in dealing with matters on remitter from this Court – to the effect that section 417 is not a sufficient excuse for delay. It is substantially premised upon an assumption that the decision of the Tribunal was a valid decision, because the Minister is substituting a decision for the decision.

HIS HONOUR: Yes

MR LLOYD: So it is inconsistent. It has not got to the point of an election, although perhaps that argument is open.

HIS HONOUR: Well, it certainly goes to delay, in the immediate framework we are looking at, I would have thought.

MR LLOYD: Indeed. In my submission, at that very first tier there is no justification for the delay from the decision which was made on 21 August 2002 to the filing in January 2004.

HIS HONOUR: Yes. Now, you also make various complaints as to the form of the relief sought, and I see that.

MR LLOYD: Yes. They are perhaps not in themselves reasons - - -

HIS HONOUR: No. Order 1 is an application for an injunction.

MR LLOYD: The only objection I would make to that is perhaps more technical than anything else, but if it is an interlocutory injunction it should be to the date of the order of this Court, not to 28 days after the order of this Court.

HIS HONOUR: Yes, but unless the applicant can get rid of the – as it were, expunge the legal effect of the decision of the delegate, there would be an obligation to remove, would there not? For that he needs - - -

MR LLOYD: Well, subject to him having a bridging visa. Of course, part of the reason why people come to this Court is that by coming they become eligible for a bridging visa.

HIS HONOUR: Yes, I appreciate that.

MR LLOYD: He is not in detention. That does not guarantee that he has a bridging visa, but he could well have a bridging visa. Bridging visas do, in fact, last 28 days after the judgment of the court, which allows people time to leave or, in relation to other courts, time to appeal.

HIS HONOUR: Yes.

MR LLOYD: I am not aware of whether this applicant has – I cannot say for sure that he has a bridging visa, but having entered lawfully he would seem to be at least eligible for a bridging visa.

HIS HONOUR: Yes, thank you, Mr Lloyd. Is there anything else you should draw my attention to?

MR LLOYD: I am not sure if you would like a copy of his Honour Justice McHugh’s judgment in.....which deals with that second point in relation to - - -

HIS HONOUR: That is the identity of the party?

MR LLOYD: Indeed.

HIS HONOUR: It should be the Tribunal. Yes, I am familiar with that, thank you.

MR LLOYD: It is probably, for present purposes, unnecessary to deal with the Twist and Wu kind of points or the other issues raised in the application.

HIS HONOUR: Yes, I think so. All right. Well, I will come back to you in a minute.

AT 9.52 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 9.58 AM:

MR LLOYD: Your Honour, perhaps I should just say – I would not want your Honour to be misled in any way – that the applicant is challenging not only the Tribunal’s decision but also the delegate’s decision.

HIS HONOUR: Yes, that is right.

MR LLOYD: We would say the delay would also affect the delegate’s decision.

HIS HONOUR: Indeed, yes.

This is an application for injunctive relief and for relief in the nature of certiorari and mandamus. The application was instituted by filing the draft order nisi and affidavits in support on 28 January 2004. When the matter was called this morning there was no appearance for the applicant and counsel for the first respondent, the Minister, moves for the dismissal of the proceedings.

The Minister has supplied detailed written submissions as to why the Court should dismiss the application with costs and certify that this is an appropriate case for attendance of counsel. Those submissions were developed in oral submissions this morning.

The applicant, it appears, is a citizen of Bangladesh who arrived in Australia on 22 January 2000. On 14 February in that year he lodged an application for a protection visa. That was refused by a delegate of the Minister on 21 February 2000, that is to say more than four years ago. On 6 March 2000 there was an application lodged for review by the Refugee Review Tribunal. The applicant indicated he did not wish to come to a hearing before the Tribunal. On 21 August 2002 the Tribunal handed down a decision affirming the decision of the delegate. The Tribunal noticed various deficiencies in the account provided by the applicant. It was not satisfied that the applicant had had by reason of his political opinion the difficulties he contended with the supporters of the Awami League in Bangladesh at his college there after the 1996 elections.

On 25 September 2002 an application was filed in the Federal Magistrates’ Court contesting the decision of the Tribunal. However, on 14 March 2003 that application was dismissed by consent. There followed in this litigious chain the commencement of the proceedings in this Court on 28 January 2004.

The Minister points to various deficiencies in the form of the draft orders nisi. These are well based. The further and perhaps first question is whether, given the lapse of time, a case has been made out on the materials before the Court attracting the exercise of the power of enlargement of time provided in Order 60 rule 6 of the Rules of Court. An exercise of that power would be necessary in view of the time limitations for certiorari imposed by Order 55 rule 17 and by Order 55 rule 30 for mandamus. Insofar as injunctive relief is requested, in particular, interlocutory injunctive relief, there are the ordinary considerations that prevail respecting lapse of time and delay.

I am not satisfied on the material that any case has been made out for extension of time or that delay has been excused. In particular, what is said to have been a supervening application to the Minister under section 417 of the Migration Act 1956 (Cth) is not sufficient answer to these difficulties in which the applicant finds himself.

Accordingly, I make the orders sought by the first respondent, namely, (1) the application is dismissed with costs; (2) the Court certifies that this is an appropriate case for the attendance of counsel in Chambers.

I will now adjourn.

AT 10.04 AM THE MATTER WAS CONCLUDED