Plaintiffs M69/2007 v Minister for Immigration & Citizenship & Anor [2007] HCATrans 443 (22 August 2007)

Last Updated: 12 September 2007

[2007] HCATrans 443

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M69 of 2007

B e t w e e n -

PLAINTIFFS M69/2007

Plaintiffs

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 AUGUST 2007, AT 10.04 AM

Copyright in the High Court of Australia

MR R.C. KNOWLES: If your Honour pleases, I appear for the first defendant. (instructed by Australian Government Solicitor)

PLAINTIFF M69 appeared in person.

HIS HONOUR: Now, Mr Knowles, this is the return of your summons of 17 August?

MR KNOWLES: That is so, your Honour.

HIS HONOUR: 17 August, is it?

MR KNOWLES: 15 August, I believe, your Honour.

HIS HONOUR: 15 August filed 17. Yes.

MR KNOWLES: Yes.

HIS HONOUR: It is supported by the affidavit of Ms Miller sworn 15 August?

MR KNOWLES: That is correct, your Honour.

HIS HONOUR: You are seeking orders bringing the proceedings to an end summarily, is that right?

MR KNOWLES: That is correct, your Honour.

HIS HONOUR: The deponent refers in the affidavit of 15 August to the course of earlier proceedings that have been taken by the plaintiffs in relation to the decision made by first the delegate and then by the Tribunal, is that right?

MR KNOWLES: Yes, that is correct, your Honour.

HIS HONOUR: Yes.

MR KNOWLES: Essentially, the position is that there was an application for judicial review made to the Federal Magistrates Court. That application was dismissed. Then there was an appeal to the Federal Court and that appeal has been dismissed. Then instead of seeking special leave to appeal from the decision of the Federal Court exercising its appellate jurisdiction the plaintiffs have sought to bring the matter before the Court in its original jurisdiction. From my client’s perspective, that is an inappropriate course. It results in a duplication of proceedings and gives rise to circumstances where principles of res judicata or issue or Anshun estoppel are enlivened.

HIS HONOUR: I have said on previous occasions the engagement of doctrines of preclusion in relation to public law remedies is a very large question and one which at some point may be fit for consideration by the Full Court, but there are other considerations. Are we concerned only, Mr Knowles, with whether the challenge proceeds by way of application for special leave or by application in the original jurisdiction? I understand that what we have on foot is an application in the original jurisdiction, but are we concerned if an attempt was made now out of time to challenge Justice Jessup’s conclusion by application for special leave?

MR KNOWLES: Your Honour has just adverted to another issue that arises, although it is not specifically mentioned in the summons, and that is that the plaintiffs would also face the hurdle of overcoming any time limits which apply pursuant to the High Court Rules.

HIS HONOUR: I understand they are now out of time for leave, but at the moment all I can do is deal with the application before me and I understand that and if you remind me of that I would not be surprised, but I just thought I would dare to look towards the horizon a little, Mr Knowles.

MR KNOWLES: In relation to the questions that arise in a special leave application as opposed to an application in the original jurisdiction, there are differences and, in my submission, what occurs when one files in the High Court’s original jurisdiction having already sought judicial review before the Federal Magistrates Court is essentially seeking to rerun the matter as it was run in the Federal Magistrates Court. In terms of a special leave application different considerations arise that tend to narrow the focus
and that is where, in my submission, this matter has got to and it is not now the case that the plaintiffs can have, to put it bluntly, a second go in relation to the initial stage of a judicial review.

HIS HONOUR: Yes, thank you, Mr Knowles. Now, sir, I should have asked you earlier, I take it you appear also on behalf of your wife, do you, is that right?

PLAINTIFF M69: Yes, sir.

HIS HONOUR: Yes, thank you. Now, you also understand, forgive me, that because there are particular provisions of the Migration Act that preclude publication of the name of you and your wife and because our transcripts go onto the internet I am left I am afraid simply to addressing you rather impersonally, so forgive me for that.

PLAINTIFF M69: No worries.

HIS HONOUR: Now, the Minister is asking that your application to this Court is dismissed without any further hearing. He says that your application should come to an end. He says that because you have gone already to the Federal Magistrates Court and to the Federal Court of Australia you cannot start a second or fresh proceeding. That is the essence of it. Now is your chance to tell me what you wish to say against what the Minister wants.

PLAINTIFF M69: Right, sir. Your Honour, first of all, because of the matter of my case, if any person – it is my request that I do not want to expose to any person who is Indian background or Pakistan background in the Court. If somebody is here from that ethnic background my request is please if the Court can isolate me for that, that would be great. The second quickly, I want to go right on the point, that it is in my knowledge, although I am not a lawyer or solicitor or barrister, that I am going to challenge the Tribunal court, not the Justice Jessup decision. Doing so there are a few reasons because in my opinion the Refugee Review Tribunal, they make a judicial error there, a very big one. If I challenge Justice Jessup’s decision it would be not good for the judiciary and judicial system of Australia, and I can prove that matter in front of you within no time. So that is why I am very well aware that I am challenging Refugee Review Tribunal decision. If you allow me, I can prove it now and I can seek your decision to that.

HIS HONOUR: The critical question is this, why should you be allowed to bring two different actions in the courts about the one subject matter? You have had one action which failed and went on appeal and failed, why should you be able to start again? That is the critical question.

PLAINTIFF M69: So for that matter I want to go step by step and if you allow me I can start right now and as soon as possible I can prove that that was the wrong decision, the judicial error in that. I have lack of funds, I could not hire proper solicitor. Whatever I can do, I did my best to prove my point. At the end when I could not get anything I take the matter in my own hand and I have prepared the stuff by myself. I would like to draw your attention towards a point. The first point is the Tribunal says that I can relocate in Pakistan, for that matter, which is not possible. Why it is not possible, I have got one Australian Department of Foreign Affairs and Trade - - -

HIS HONOUR: Can I interrupt you and say this to you? Can I make sure I understand what you are now trying to tell me?

PLAINTIFF M69: Yes, sir.

HIS HONOUR: As I understand it what you are trying to tell me now is that, firstly, the Tribunal got it wrong, is that right?

PLAINTIFF M69: Yes, sir.

HIS HONOUR: You want to say that the Tribunal got it wrong particularly about whether you could relocate in Pakistan, is that right?

PLAINTIFF M69: Yes, sir.

HIS HONOUR: And you want to say that, if you look at what the Australian Department of Foreign Affairs and Trade tells us about Pakistan, that will show you that the Tribunal was wrong in saying that you could relocate?

PLAINTIFF M69: Yes, sir.

HIS HONOUR: Is that the essence of what you are about at the moment?

PLAINTIFF M69: Yes, sir.

HIS HONOUR: Now, I understand that is what you want to tell me.

PLAINTIFF M69: Sir, that is one point.

HIS HONOUR: Yes.

PLAINTIFF M69: The second point is the Tribunal accepts that I am not a practicing Muslim. It is clearly in the decision.

HIS HONOUR: Yes.

PLAINTIFF M69: If you allow me I can read that:

The Tribunal accept that applicant has turned his back on his Muslim religion. It finds the applicant had been questioning his faith for many years, since he was in the 7th or 8th grade -

It was Refugee Review Tribunal page 20 and line 8. The second thing is:

The Tribunal is satisfied, on the basis of his evidence he provided in the hearing, the applicant’s frustration with the Muslim religion and his quest to find something else began much earlier than when he learnt his wife was ill.

Further down the track – sorry, page 25 of the decision, third paragraph, first line –

The Tribunal accepts when the applicant came to Australia he actively started looking for a new faith and explored various Christian denominations.

Then the same paragraph, line 5:

the Tribunal is satisfied the applicant no longer practised his Muslim faith and was in search of some other religion -

If we go on page 26, third paragraph, second line:

the Tribunal accepts the applicant’s family believe he has converted to Christianity. It accepts the applicant’s family in Pakistan are aware of the applicant’s activities in Australia and it accepts they learnt about his feelings and an intention to convert through the person who lived with him and his wife in Australia.

HIS HONOUR: Again can I interrupt you, because I think it is important that we understand this? I understand that you say the Tribunal got it wrong. I understand that you say the Tribunal got it wrong in a number of very important ways, is that right?

PLAINTIFF M69: Yes, sir.

HIS HONOUR: Now, the point you have to deal with I am afraid is a bit different. The point you have to deal with is this. You have had one case in court, why should you have a chance to have a second case? Proving or trying to argue that the Tribunal is wrong does not answer that question. Why should you have a second chance in court is the basic question you have to grapple with.

PLAINTIFF M69: Yes, sir. The Refugee Review Tribunal, they take all information from Department of Foreign Affairs and Trade and they build all their cases and their judgment on that.

HIS HONOUR: You say they are wrong. I understand you say they are wrong. I understand that you would wish to argue that they are wrong in a number of very important respects. Even if that is right, should you have a second chance to start a fresh proceeding to prove that?

PLAINTIFF M69: Sir, in my view, the first court, Federal Magistrates Court, they have been misled by the Refugee Review Tribunal. I know it is very, very big statement and Justice Jessup, he is misled. Why he is misled? According to the Ministry, Foreign Affair Ministry, it is stated clearly, attempting to convert a Muslim or encouraging a Muslim to abandon their religion is illegal. Tribunal accept that I abandon Islam, Tribunal accept that I am seeking the right church to convert myself to Christianity, and they do not want me to declare that I am doing so or, in other words, they are forcing me to lie under oath.

Sir, I have got this form for the passport. According to Pakistani law, according to the Department of Foreign Affairs, it is illegal to force someone to convert from Muslim to any other religion or even abandon Islam. I want to read a declaration which is when you go for the passport you have to submit that under oath. In other words, I will be lying under oath and I will be forced to commit another crime with another crime. So if the Tribunal accept that I am not practicing Muslim or I abandon Islam it means that not only my family, not only my community, law of Pakistan will prosecute me and on that basis I believe the decision – I do not want to use harsh words against any authorities, but I have to say now that according – on all those bases the Tribunal used the wordings and the authorities and all the resources of Government of Australia to misleading the judicial system as well.

So that is why, instead of going back to the Court of Appeal and the Magistrate Court and putting them into trouble, why they did not look into the matter, and to tell them I am not practicing Muslim. That is the copy of my passport. It says that my religion is Islam. That is why I was reading a few lines of the decision so that I can be able to create the whole scenario, what they decide. All three honourable decision-making personnel, they give me the decision that he is not practicing Muslim, he abandoned Islam, he is not practicing Muslim, he abandoned Islam, so they already decided that, according to the Pakistani law, I commit a crime and by the Pakistani law I will be persecuted.

I could not understand why all three authorities, they forget that on every Pakistani passport if you are a Muslim there is a big thing, your name, your father name, your occupation and your religion. So if I have to get the passport I have to declare under oath that I am a Muslim. So if I declare this, yes, I am a Muslim, but according to the Tribunal, according to the Magistrate Court, according to Justice Jessup, I am not a Muslim. So if I put all those things together it is seen as misleading and I do not want to use that word that somebody misled the judicial system of Australia. So this is my oral point.

HIS HONOUR: I understand the point you make.

PLAINTIFF M69: Yes, because some of the judicial person, he who advise me, he said that if you use some hard technical words you could put somebody into big trouble on this basis. So I do not want to say that two courts and one tribunal, they were not very well prepared against me. They are deciding the one thing and the rest of the.....they do not want to see, they just went, “No, we do not want to see that part, we just want to see, yes, these things”. If you go to the – there is one – this was the second court. From the Tribunal I went to the Magistrate Court, it is very precise in the lines, it says:

Many of the applicant’s claims were accepted by the Tribunal. That included the following:

a) the applicant had turned his back on his Muslim religion;

b) that the applicant had been questioning his faith for many years -

And another one, the Tribunal findings:

e) when the applicant came to Australia he actively started looking for a new faith and explored various Christian denominations. It accepted he may have attended the Sacred Heart Church in Preston, another church in Thomastown, and was currently attending the Church of God Revival Centre in Box Hill South;

f) the applicant’s family believed he has converted to Christianity and further accepted that the applicant’s family in Pakistan were aware of his activities in Australia -

They are finding:

i) there is a real chance that applicant would be viewed by his family and others of his community who knew him in the past to be an apostate. As such, the Tribunal found on his basis of the Country Information –

So this is very important sentence –

on the basis of the Country Information cited by it in its decision, particularly information from the Department of Foreign Affairs and Trade -

So I will - your attention a little bit, “from the Department of Foreign Affairs and Trade”. Smartraveller, that is the travel advice from the Department of Foreign Affairs - if you go into the local law section it says with all that that “Homosexuality is illegal”, such and such and such and alcohol is illegal. It says:

Attempting to convert a Muslim or encouraging a Muslim to abandon their religion is illegal.

So when I am going to apply for the passport, two things going to happen, whether I will lie under oath, which is a crime, or I will change that I am – I will declare that I am non-Muslim and get this front page gone.

HIS HONOUR: I should interrupt you to say this to you. The Court presently has under consideration two cases concerning the so-called relocation principle. The names of those cases escape me and I have sent for the record of the names of the cases that concern that principle. They are both cases I think in which Justice Callinan sat. They are both cases therefore judgment in which may confidently be expected to be delivered before his Honour retires by a fluxion of time on I think it is 31 August or 1 September and therefore in the ordinary course of events the Court will have something to say on this question of relocation within the next 10 days or thereabouts.

Whether the courts below have properly examined any complaint about relocation is a matter that would arise if out of time application were made for special leave to appeal against the order of Justice Jessup and if an extension of time were granted. Those are not matters that can be predicted at the moment, not least because the Court’s judgments in those matters have not yet been published. It brings me back to the basic question. The basic question is you have had one set of proceedings in the courts of Australia, why should you have a second and separate set of proceedings? Is there anything you want to say to me about that narrow question?

PLAINTIFF M69: Sir, I think I could not explain it properly, I try my best again.

HIS HONOUR: You have told me that the courts, in your words, have been misled by a wrong decision of the Tribunal.

PLAINTIFF M69: Yes.

HIS HONOUR: I understand that point that you make to me. Is there anything further that you would want to say in answer to the question, why should you have a second set of proceedings in the Court?

PLAINTIFF M69: Sir, it could be the – like if somebody misguided me as well that instead of going to the special.....court or whatever the name of the next court is, I should come here. The second, most important, I want to put – I said that Justice Jessup – that the justice is wrong. In my opinion, it was from the very first step when they misled the court and somebody told me that it could be – the two justice could be in trouble on this one. So I was scared that the country would give me a new life and my wife a new life, beautiful for kids, I do not want to put a black – you know, or anything – you know, that was - - -

HIS HONOUR: Saying that judges get it wrong is not ordinarily regarded as putting a black mark against your name. There are times in this job when you begin to think it is compulsory for most people to say that what you have decided is wrong, but that is simply my rather warped view of it. The present process you have in the Court is not an application for leave to appeal against Justice Jessup’s judgment.

The two cases I was referring to are SZATV v Minister for Immigration and Citizenship, and SZFDV v Minister for Immigration and Citizenship. Those are two cases in which the relocation principle formed an important element in the arguments that were agitated in the Court. Now, is there anything else you want to say about why you should have a second set of proceedings in the Court?

PLAINTIFF M69: No, sir, only two things. One was that I was misled, could be misled.

HIS HONOUR: Yes.

PLAINTIFF M69: Number two was that my intentions – because some person from judicial circle, he told me that the things you are showing me, the declaration form and your passport, somebody could be in big trouble because of that, so I got scared and I took this action.

HIS HONOUR: I understand.

PLAINTIFF M69: There is no bad intention or, you know - - -

HIS HONOUR: None is asserted.

PLAINTIFF M69: - - - nothing in that like that.

HIS HONOUR: Yes. Thank you. Perhaps if you would resume your seat.

The first and second plaintiffs are citizens of Pakistan and husband and wife. They have a child who is the third plaintiff born in this country in June 2000. On 31 January 2001 the first-named plaintiff, the husband, made application for a protection class XA visa and included his wife and child in his application for a visa. On 18 June 2001 a delegate of the Minister determined that the plaintiffs were not persons to whom Australia had protection obligations and refused the grant of protection visas.

The plaintiffs applied for review of the delegate’s decision by the Refugee Review Tribunal but that Tribunal affirmed the delegate’s decision by its decision dated 27 November 2003 handed down on 9 January 2004. On 30 January 2004 the plaintiffs made application for relief under section 39B of the Judiciary Act 1903 (Cth) in the Federal Magistrates Court and on 16 March 2005 that court ordered that the decision of the Tribunal dated 27 November 2003 be set aside and remitted the matter to the Tribunal differently constituted to be determined according to law.

The Tribunal conducted a further review of the delegate’s decision, but by its decision dated 27 June 2005 handed down on 15 July 2005 affirmed the delegate’s decision. Again, the plaintiffs made application for relief under section 39B of the Judiciary Act in the Federal Magistrates Court. On 25 January 2007 that court dismissed the plaintiff’s application with costs.

The plaintiffs appealed from the orders of the Federal Magistrates Court to the Federal Court of Australia. On 23 May 2007 a single judge of that court, Justice Jessup, exercising the appellate jurisdiction of the court, ordered that the appeal be dismissed. The applicants did not apply then for special leave to appeal to this Court against the decision of Justice Jessup. Instead, on 20 June 2007 the plaintiffs began an application in the original jurisdiction of this Court for an order to show cause directed to the Minister and the Tribunal.

The application includes application for relief by way of certiorari to quash the Tribunal’s decision and mandamus directed to the Tribunal requiring it to hear and determine the application for review according to law. Insofar as the plaintiffs seek certiorari and mandamus the applications are made well beyond the times fixed by the High Court Rules 2004 as the times within which applications for relief of that kind shall be made.

The first-named plaintiff appearing on his own behalf and on behalf of his child sought to demonstrate to me that the decision of the Tribunal is wrong. He made a number of complaints about the Tribunal’s decision and its treatment of his claim to have, as he put it, turned his back on Islam and to have sought development of a different religious faith. He pointed also to what the Tribunal had said about the possibility if he were to return to Pakistan with his family that he and his family might live in a part of Pakistan different from that in which he and his wife had lived before coming to this country in August 1999.

It is not easy to explain to a lay person the limits of the jurisdiction and powers that are exercised by courts in respect of decisions made under the Migration Act, including in particular decisions to grant or refuse protection visas. The decision to grant or refuse a protection visa is a decision of an administrative character. As Justice Brennan said in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at pages 35 to 36:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

As Justice Brennan went on to point out, the consequence is that the courts, when exercising judicial review, are exercising powers the scope of which are:

defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise.

(1990) 170 CLR 1 at 36. The task of the Federal Magistrates Court in considering the several applications made by the plaintiffs for relief under section 39B of the Judiciary Act directed to the Tribunal and to the Minister was confined to the declaration and enforcing of the law which determines the limits and governs the exercise of the power of the Tribunal and of the Minister. It was not to engage in a review of the merits of the decision that the Tribunal had made or before it that the delegate of the Minister had made.

Although the Minister sought to contend that doctrines of preclusion prevent the plaintiffs from pursuing the application for an order to show cause instituted in this Court in June this year, I prefer not to base the decision today upon such considerations. Whether or how doctrines of preclusion are engaged in respect of matters in which public law remedies are sought is a very large question. It is not a question upon which I will embark in this matter.

It is sufficient for the purposes of the present application made by the Minister (to terminate the proceedings summarily) to note that the application insofar as certiorari is sought is made out of time and, insofar as mandamus is sought is also made out of time. As Justice McHugh demonstrates in Re Ruddock and Others; Ex parte Reyes (2000) 177 ALR 484, availability of certiorari to quash the decision of the Tribunal is critical to success of the application which the plaintiffs make in this Court. Absent certiorari quashing the decision of the Tribunal, there is no foundation upon which prohibition would go or injunction would issue to restrain the Minister giving effect to the consequences that otherwise would follow under the Act from the Tribunal’s decision.

The question which then must be examined is whether an extension of time should be granted within which the plaintiffs might make application for certiorari. Again, as Justice McHugh demonstrates in Re Commonwealth of Australia and Another; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491, consideration of questions of extension of time within which application may be made for grant of certiorari must take proper account of the fact that the decision is one which is made in exercise of statutory power.

The writ which is sought is directed to the Act or decision of a public body or official and, as Justice McHugh says in Re Commonwealth of Australia and Another; Ex parte Marks [2000] HCA 67; 177 ALR 491 at 495 paragraph [15]:

the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

Whereas, as here, the delay in applying for relief of the kind which is essential to the plaintiff’s success in the application instituted in this Court is occasioned by the plaintiffs resorting to the judicial power of the Commonwealth for the seeking of other relief, there is in my opinion no occasion to grant any extension of time of the kind sought. For those reasons, I am of the opinion that the proceedings instituted by the plaintiffs should, as the Minister seeks, be summarily terminated.

Before parting with this matter, however, it is important that I record the limits of what I have decided. I express no view whatever upon any question that may be said to arise about the proper application of what has come to be known as the relocation principle. Those are issues presently reserved for consideration by the Court in the cases of SZATV v Minister for Immigration and Citizenship and SZFDV v Minister for Immigration and Citizenship.

I therefore express no view about whether the plaintiffs have any cause for complaint within the proceedings which culminated in the judgment of Justice Jessup about the application of such principles. I further expressly decline to express any view about whether, although time for making application for special leave to appeal has expired, this would in all the circumstances be a case in which consideration might be given to the granting of an extension of time within which these plaintiffs might, if they are so advised, seek special leave to appeal from the judgment of Justice Jessup founded on issues relating to questions of relocation. The orders I will make are simply application dismissed.

MR KNOWLES: Your Honour, the first defendant would seek the costs in relation to the application as well.

HIS HONOUR: Yes. There is I think nothing that can be said in answer to that. The application must be dismissed with costs.

AT 10.52 AM THE MATTER WAS CONCLUDED