Plaintiff M11/2007 v Minister for Immigration and Multicultural Affairs of the Commonwealth of Australia [2007] HCATrans 114 (20 March 2007)

Last Updated: 4 April 2007

[2007] HCATrans 114

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M11 of 2007

B e t w e e n -

PLAINTIFF M11/2007

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Defendant

DON SMYTH IN HIS CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 20 MARCH 2007, AT 9.33 AM

Copyright in the High Court of Australia

MR J.C. WEERAKOON: Your Honour, I appear for the applicant on a pro bono basis to assist the Court. (instructed by the applicant)

MR W.S. MOSLEY: If your Honour pleases, I appear for the first respondent. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes. Mr Weerakoon, we have arranged for an interpreter in the Tamil language to be available in Court. It would be as well, I think, if the interpreter were sworn or affirmed and he could then translate the proceedings for the applicant.

MR WEERAKOON: Yes, your Honour.

RAJ VADIVELU, affirmed as interpreter:

HIS HONOUR: Thank you. Perhaps if you can sit with the applicant, behind, for the moment.

Mr Mosley, there is, I understand, a summons which has been issued on behalf of the Minister, being the summons of 13 March of this year, is that right?

MR MOSLEY: That is correct, your Honour.

HIS HONOUR: In support of that there is an affidavit of Maria Ngo sworn on the same day, is that right?

MR MOSLEY: Yes, your Honour.

HIS HONOUR: Do you read that affidavit?

MR MOSLEY: I do so, your Honour.

HIS HONOUR: Yes. Is there any objection to my receiving the affidavit, Mr Weerakoon?

MR WEERAKOON: No, not at all, your Honour.

HIS HONOUR: Yes, thank you.

MR MOSLEY: There is a further affidavit of service, for what it is worth.

HIS HONOUR: Yes. The applicant appearing, I do not think we need that.

MR MOSLEY: No, your Honour

HIS HONOUR: Mr Mosley, as I understand it, correct me if I am wrong, the critical dates are as follows, the plaintiff arrived in Australia on 29 July 2004.

MR MOSLEY: Your Honour, I have 8 August 2004, but I could stand corrected about that, your Honour. My learned friend says that is correct, your Honour.

HIS HONOUR: 8 August, yes.

MR MOSLEY: 8 August 2004.

HIS HONOUR: Yes. The delegate - - -

MR MOSLEY: 26 November 2004. Does your Honour wish me to assist you?

HIS HONOUR: Yes. The delegate is 26 November 2004.

MR MOSLEY: Yes. He made his protection visa application on 16 September 2004, the delegate dealt with that and dismissed that application on 26 November 2004. He then made an application to the Refugee Review Tribunal on 22 December 2004 and the RRT dismissed that application on 24 August 2005 at a hearing, I should add at this point, at which the applicant attended and was represented by counsel. He attended the hearing. He did attend that hearing but I am not certain if he was represented by counsel.

He then made an application to the Federal Magistrates Court on 22 September 2005 and that was dealt with by Federal Magistrate Raphael whose judgment was dated 27 April 2006. He then issued this application on 25 January 2007. Federal Magistrate Raphael’s judgment is exhibited to the affidavit of Maria Ngo and it is MN1 – I am sorry, I will start that again. Federal Magistrate Raphael’s judgment is MN3 - - -

HIS HONOUR: And the Tribunal is MN1.

MR MOSLEY: I am getting confused with the second one, your Honour. I have misled your Honour. He was unrepresented and your Honour will see that MN2 is the nature of the application that was propounded before the Federal Magistrate and your Honour will see there is very little encompassed in that at all. Then Federal Magistrate Raphael dealt with the matter on 27 April and it is only a relatively short decision but his Honour at paragraph 11 rather summarised the manner in which the applicant was putting the case because there was nothing, really, in the written application and his Honour said:

Before me today the applicant indicated that he was dissatisfied with the Tribunal’s decision because:

“They believe things I said did not take place. I said they happened to me. They said it could not have happened.”

So, in my submission, as Federal Magistrate Raphael found, it was a credit exercise in a merit challenge to the findings of the Tribunal. If we then move to today, your Honour, the - - -

HIS HONOUR: Was there any application to appeal from the decision of Federal Magistrate Raphael?

MR MOSLEY: No, your Honour. No, there was not.

HIS HONOUR: Yes.

MR MOSLEY: If you then move, your Honour, to the application for an order to show cause, that was filed, as I indicated to your Honour, on 25 January of this year. In terms of the decision of the Refugee Review Tribunal, being 24 August 2005, this application to this Court being made on 25 January 2007 is made some 17 months post the Refugee Review Tribunal’s decision. I will come to the implications of that if your Honour wishes me to in a moment but, as far as the application is concerned, an order to show cause, again the application before your Honour is unparticularised.

HIS HONOUR: It is an application that appears on its face to be directed both to the decision of the Minister, presumably the Minister’s delegate, and directed to the decision of the Tribunal.

MR MOSLEY: Yes, your Honour.

HIS HONOUR: Yes.

MR MOSLEY: It is expounded to some extent because the applicant has filed an affidavit, although that simply goes really to the matter of recounting the relevant events. That is the applicant’s affidavit of 25 January 2007. The only basis upon which he gives for not proceeding earlier in this Court is contained in paragraph 10, which is the same paragraph as appears in the next application verbatim, and that is that he was exercising the rights in the Federal Magistrates Court, fundamentally, but that does not explain, in my submission, the delay. There is also an outline of submissions that have been filed which might take the matter a little further and they are also dated 25 January 2007.

HIS HONOUR: Yes, I have those.

MR MOSLEY: Does your Honour wish me to go through those?

HIS HONOUR: Do I, at least from your side’s point of view, sufficiently characterise them as being complaints of, I think, a want of natural justice, see paragraphs 1 and 2, perhaps 3, plus whether a failure to comply with section 424A and/or a want of procedural fairness in paragraph 5.

MR MOSLEY: Yes.

HIS HONOUR: I think paragraph 6 is probably best understood as a want of natural justice complaint, as perhaps are the complaints made in paragraphs 3 and 4.

MR MOSLEY: Yes, your Honour.

HIS HONOUR: You, no doubt, would wish to characterise those as simply a tax on findings of fact, but I think a generous interpretation that may be open is that they are complaints about procedural fairness, they are complaints of a species of jurisdictional error.

MR MOSLEY: Yes, your Honour.

HIS HONOUR: Does it then come to this, that we have application made to this Court which, though not developed, makes complaints of jurisdictional error constituted by a want of procedural fairness coupled with want of compliance with the statute, section 424A in particular, but we have that application made outside the time limits for certiorari prescribed by rule 25.06.1, there having been already a resort to the judicial power of the Commonwealth in the Federal Magistrates Court not further prosecuted by appeal?

MR MOSLEY: Yes, that is correct, your Honour. As far as certiorari is concerned, on my calculations it is 11 months out of time and for mandamus it would be 15 months out of time, putting aside section 486.

HIS HONOUR: But the critical relief that the applicant would have to obtain would be certiorari.

MR MOSLEY: Yes, your Honour.

HIS HONOUR: Until certiorari to quash goes, the other relief, whether constitutional relief or other relief, will not be engaged.

MR MOSLEY: Yes, that is correct, your Honour. If I could make one other submission, it should not, in our submission, be open to the plaintiff to recommence in the original jurisdiction of this Court raising an issue as to the validity of the Tribunal’s decision which has already been the subject of an unsuccessful challenge and, further to that, the plaintiff could have appealed from that decision of Federal Magistrate Raphael and that is an abuse, in our submission, on that basis. Accordingly, I think your Honour so found in a decision of your Honour’s in MZXGE and Others in dealing with one of those matters on 24 August of last year, for what that is worth, your Honour.

HIS HONOUR: I rather suspect it was on the basis that the discretion to extend time should not be exercised rather than classifying it as an abuse, but perhaps I am mistaken in my memory. No matter.

MR MOSLEY: No, no matter, your Honour.

HIS HONOUR: Yes. The engagement of questions of preclusion and abuse in connection with public law remedies raises very large questions.

MR MOSLEY: Yes, I have read what your Honour has said about that in - - -

HIS HONOUR: Which, hitherto, are questions I have not grappled with.

MR MOSLEY: Yes, I appreciate that, your Honour. That is the basis upon which we put it. There are other matters which we would seek to advance, but principally your Honour has summarised the way in which we would put it.

HIS HONOUR: Yes. Mr Weerakoon, may I be so impertinent as to ask whether you have explained to the plaintiff whom you are good enough to assist that the Minister is seeking to terminate his application to this Court today?

MR WEERAKOON: Yes, your Honour. In fact, I have explained to him that he has exhausted all his rights and he was out of time on the basis in relation to the application made to the High Court from the decision of the Tribunal which is around about 17 months, as my learned friend explained to you, your Honour.

HIS HONOUR: Yes. It seems to me that a hurdle, perhaps the hurdle, the plaintiff has to surmount is to explain why I should extend the time to commence the proceedings in this Court given the history of events as described. That seems to me to be the principal area for debate, but if you see it differently, tell me. If it is the principal area for debate, what have we to say about it?

MR WEERAKOON: Your Honour, in relation to the request a grant of extension of time, your Honour, then of course he had some financial constraints to come before this Court because he is really not gainfully employed. Although he had the right to work, he was not gainfully employed and because of these financial restraints, he was clearly debarred from coming to this Court, your Honour, within the prescribed time, but, of course, he has not been represented well, and that is again due to his financial constraints and unable to meet the costs of the instructions and, of course, to a limited extent he has gone before a Federal Magistrates Court where the application was dismissed.

The next step he could have taken, and he had taken, is to make this application to your Honour’s Court and therefore his instructions, your Honour, that if there is any decision within your parameters of authority, your Honour, to grant him an extension of time – most essentially, I do not have most of the documents, your Honour, because my instructions came lately and most of the.....documents are with me in.....study the case, but most importantly, your Honour, if there is any way that you can grant the extension of time on the reason that is now stated in his affidavit is that he has gone down the other lane in applying to the Federal Magistrates Court - - -

HIS HONOUR: I am sorry, would you repeat that?

MR MOSLEY: He has resorted to the Federal Magistrates Court from the decision of the Tribunal, your Honour, and that explained the delay and what followed next, all that he had to read the proceedings in the Federal Magistrates Court and to commence the proceedings here, he awaited the decision of the Federal Magistrates Court and that is explaining to you why the delay, your Honour.

HIS HONOUR: Yes. Is there anything else you would wish to add, Mr Weerakoon, on his behalf?

MR WEERAKOON: Well, at the moment not anything more, your Honour, I could say.

HIS HONOUR: Yes, thank you very much for your assistance. Mr Mosley.

MR MOSLEY: Your Honour, there is one other matter that I am certain your Honour is aware of. The summons does rely on 486A of the Migration Act as well, as your Honour would have seen.

HIS HONOUR: That is the 84 day time limit?

MR MOSLEY: Yes, 84 days.

HIS HONOUR: That is presently under reservation by the Court, is it not, the validity of all of that and, if we come to that, the matter would simply stand out of the list.

MR MOSLEY: I appreciate that, your Honour, I just thought as a matter of completeness - - -

HIS HONOUR: If we come to that the matter would simply stand out of the list.

MR MOSLEY: Yes.

HIS HONOUR: So do you - - -

MR MOSLEY: No.

HIS HONOUR: No, I thought you might not. Yes, thank you, Mr Mosley.

On 25 January 2007 the plaintiff filed an application for an order to show cause directed to the Minister for Immigration and Multicultural Affairs and the Refugee Review Tribunal. The relief claimed in that application for an order to show cause included an extension of time within which the proceedings might be commenced. The substantive relief claimed was described as a writ of certiorari to quash the decisions of the Minister and of the Tribunal, mandamus to hear and determine the plaintiff’s application for review by the Refugee Review Tribunal in accordance with law, prohibition directed to the Minister from proceeding further with the matter or acting on the Tribunal’s decision together with what was described as remission of the matter to the Tribunal, constituted differently, to hear and determine the matter in accordance with law.

The grounds stated in the application for an order to show cause were stated at a level of abstraction and generality, unrelated to any particular facts of the case, but the particular complaints that the plaintiff would seek to make in this Court were amplified in an outline of submissions that was filed at the same time as the application for an order to show cause. That outline of submissions makes plain that the plaintiff would seek to complain of a want of procedural fairness on the part of at least the Tribunal and perhaps the Minister in dealing with the applications that he has made, coupled with a complaint that the Tribunal failed to act in accordance with section 424A of the Migration Act 1958 (Cth).

The facts which lie behind the application for an order to show cause may be stated shortly. The plaintiff, who is a Malaysian of Tamil ethnicity, arrived in Australia on 8 August 2004. He made application for a protection visa but on 26 November 2004 a delegate of the Minister refused to grant that visa. The applicant sought review of the delegate’s decision by the Refugee Review Tribunal but that Tribunal, by a decision dated 24 August 2005 which it published on 16 September 2005, affirmed the decision of the delegate not to grant a protection visa.

Being dissatisfied with that decision, the plaintiff made application to the Federal Magistrates Court for relief under section 39B of the Judiciary Act 1903 (Cth). Federal Magistrate Raphael dismissed that application on 27 April 2006. The plaintiff did not seek to appeal against the decision of Federal Magistrate Raphael, rather, some nine months later made the application for an order to show cause in this Court.

Central to the plaintiff’s claim in this Court is his application for certiorari to quash. Although cast in terms of an application for certiorari quashing either or both of the decision of the delegate of the Minister or the Tribunal, the better view would appear to me to be that the critical relief which the plaintiff would have to obtain to achieve success in the proceedings instituted in this Court is certiorari to quash the decision of the Tribunal. At once then, as the plaintiff’s application for an order to show cause acknowledges, the plaintiff encounters the difficulty presented by the terms of rule 25.06.1 of the High Court Rules 2004 that:

An order to show cause why a writ of certiorari should not issue . . . shall not be granted unless the application for the order is made not later than six months after the date of the judgment, order, conviction or other proceeding, or within such shorter period as may be prescribed by any law.

The application for certiorari to quash the decision of the Tribunal is on any view made well out of time. If it matters, so too is the application for certiorari to quash the decision of the delegate. The other relief which the plaintiff would seek, namely, prohibition and mandamus, is relief which depends for its grant upon the prior grant of certiorari to quash the decision of the Tribunal. So long as the decision of the Tribunal stands intact the Act operates according to its terms, neither prohibition nor mandamus would be available.

The plaintiff seeks an extension of time within which to commence the proceedings in this Court. Although there is no evidence to this effect, I am prepared to act upon the basis asserted by the solicitor, who was good enough to act pro bono for the plaintiff, that the plaintiff has been unable to prosecute proceedings in this Court or, I would interpolate, prosecute an appeal to the Federal Court of Australia for want of financial ability to do so. Nonetheless, having engaged the judicial power of the Commonwealth, as he did by his application to the Federal Magistrates Court for relief under section 39B of the Judiciary Act, it would, in my view, require powerful reason to now permit the plaintiff to make a separate and later application to this Court seeking relief substantially of the same kind in respect of the same decisions as those which he challenged in the Federal Magistrates Court and in respect of which rights of appeal were available.

Recognising, as I do, that the application made in this Court is to be treated as representing the last available opportunity that the plaintiff might have to challenge the decision of the Tribunal, other that is than any application that he may make to the Federal Court of Australia for extension of time within which to appeal against the decision of the Federal Magistrate, I remain unpersuaded that this is a case in which the necessary extension of time for the grant of relief should be allowed.

The times which are fixed by the Rules for the grant of prohibition, and I would add also for the grant of mandamus, are fixed for important purposes extending beyond the immediate purposes of those who are the particular parties to specific pieces of litigation. There is, of course, power to extend those times and the discretion to extend those times is not to be constrained by irrelevant prior prescriptions. Nonetheless, in this case, I am not persuaded that any case is made out for granting the necessary extension of time to make the application. That being so, it follows that the application should stand dismissed.

The order is, application for an order to show cause dismissed. Yes, Mr Mosley?

MR MOSLEY: I seek an order for costs, your Honour.

HIS HONOUR: Yes. Is there anything you are able to say in opposition to an order for costs, Mr Weerakoon?

MR WEERAKOON: Yes, your Honour. Given his financial situation, your Honour, the financial difficulties he has encountered, he does not have the financial resources, your Honour, to meet the costs. I plead your Honour to sort of – not a suitable.....in that regard.

HIS HONOUR: Yes.

MR WEERAKOON: I am instructed that he is not financially stable. He is in financial difficulties at the moment and that will explain why he could not prosecute the proceedings following the judgment of the Federal Magistrate, your Honour, so if you can take that into account then, it is simply a consideration - - -

HIS HONOUR: Yes. The Minister applies for his costs of this application. The plaintiff points to his financial position as reason not to make an order for costs. In my opinion costs must follow the event. In addition to the order that the application for an order to show cause is dismissed there will be an order that the plaintiff pay the Minister’s costs.

Yes, thank you for your assistance, Mr Weerakoon.

MR MOSLEY: As your Honour pleases.

MR WEERAKOON: Thank you, sir.

AT 10.04 AM THE MATTER WAS CONCLUDED