Plaintiff M66 of 2008 v Minister for Immigration and Citizenship & Anor [2009] HCATrans 163 (23 July 2009)

Last Updated: 24 July 2009

[2009] HCATrans 163

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M66 of 2008

B e t w e e n -

PLAINTIFF M66 OF 2008

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

PAUL FISHER IN HIS CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 23 JULY 2009, AT 9.27 AM

Copyright in the High Court of Australia

PLAINTIFF M66 of 2008 appeared in person.

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

THE INTERPRETER: I am the interpreter, your Honour.

HER HONOUR: Yes, thank you very much. Would you like to tell me anything you wish to say about your application today?

PLAINTIFF M66: Sorry.

HER HONOUR: Are you all right?

PLAINTIFF M66: I am okay.

HER HONOUR: All right. Take your time.

PLAINTIFF M66 (through interpreter): Your Honour, I have been charged that I have lied to the Court, but I have never lied. I explained what happened to me in Sri Lanka. I was late to come to Australia after the grant of visa for a few months not due to anything else but I had to see to the welfare of my dependants. That is why I took time to come. I got time because there is no social security like in Australia like the Centrelink there for people to be dependent so I had to arrange their security plus things for their subsistence in Sri Lanka.

HER HONOUR: Yes.

PLAINTIFF M66 (through interpreter): That is the reason why I was late. I went to the Department of Immigration and told the truth and at the Refugee Review Tribunal and I followed the instructions of my legal adviser. That is all I have to say.

HER HONOUR: Thank you very much.

PLAINTIFF M66 (through interpreter): I came here for a conciliation in the matter.

HER HONOUR: Thank you. Yes, Mr Mosley.

MR MOSLEY: Your Honour no doubt has our written submissions.

HER HONOUR: Yes, and I have read those.

MR MOSLEY: And the affidavit of Mr Rogers.

HER HONOUR: Yes, I have read that.

MR MOSLEY: Excuse me, your Honour. I am losing my voice I think.

HER HONOUR: You and me both.

MR MOSLEY: Just happened.

HER HONOUR: Take your time to have some water if you need.

MR MOSLEY: It might be a good idea actually. It only just occurred at that moment. Your Honour, the first defendant by a summons dated 15 July seeks that this application be refused. The applicant seeks to challenge the decision of the Refugee Review Tribunal and does so by constitutional writ relief by application dated 15 September. Your Honour has seen our summons.

HER HONOUR: The applicant has already had recourse to the judicial power of the Commonwealth.

MR MOSLEY: Yes, he has, your Honour. On 14 April 2008 Federal Magistrate Riethmuller dismissed the application for judicial review and on appeal before Justice Gray on 28 August 2008 his Honour dismissed that appeal from the judgment below. They are exhibits ELR 3, which is the decision in the Federal Magistrates Court and ELR 5, which is the judgment of the court below. Grounds of appeal are set out in ELR 4. The first defendant’s solicitors, as your Honour will have seen in ELR 6 and ELR 7, wrote to the plaintiff.

HER HONOUR: I just wonder whether we should be taking some time for the interpreter to interpret what you are saying.

MR MOSLEY: Yes. I do not know what his understanding of English is.

THE INTERPRETER: I can understand.

HER HONOUR: What about the applicant, can he understand?

PLAINTIFF M66 (through interpreter): Yes, I can understand because I have written information about what they are saying.

HER HONOUR: All right. I am just a bit concerned, Mr Mosley, about inviting the applicant to make a reply if there is no interpretation as we go. I think the safer course might be if we allow some time for the interpreter to let the applicant know what you are saying. I wonder if you could just recap very briefly and the interpreter – I will ask you, Mr Interpreter, to interpret what is being said.

MR MOSLEY: Yes, your Honour. In summary, the applicant seeks to challenge a decision of the Tribunal and he does so by an application dated 15 September 2008. The first defendant by summons seeks that that application be refused. The Tribunal decision was subject to judicial review both at first instance and on appeal and those judgments are exhibited to the affidavit of Edward Rogers, which I believe the plaintiff has. In addition to those matters briefly, the solicitors for the first defendant wrote to the applicant in October and November of last year advising him that this was an inappropriate way to proceed and that if he withdrew the application, no costs would be sought and the manner in which he should proceed.

Now, just turning to the Tribunal decision, your Honour. I will go back a step, I am sorry. The applicant claimed that he was at risk due to his political opinion as a supporter of one of the political parties in Sri Lanka. He claimed to be a supporter of the United National Party and feared persecution from the ruling party, United People’s Front. The Tribunal made very significant findings adverse to the credit of the applicant and it concluded, as we have set out in our written submissions, the Tribunal found that:

there are so many flaws in the applicant’s case that it cannot accept any of his evidence as being reliable. The Tribunal does not therefore accept that the applicant was threatened or assaulted as claimed.

The Tribunal concluded:

that the applicant’s claims are not genuine, but rather that he has attempted to fashion his political background into a refugee claim for the purpose of securing a migration outcome he has previously tried but failed to achieve.

Now, the plaintiff sought judicial review of the Tribunal decision and articulated five grounds before the Federal Magistrate, all of which were dismissed. Sorry, the plaintiff articulated five grounds of review before the Federal Magistrate and all of which grounds were dismissed by the Court. On appeal four grounds were identified in the notice of appeal and Justice Gray on appeal considered and dismissed those four stated grounds. As I submitted, those documents are before the Court.

HER HONOUR: There was no appeal from that decision of his Honour Justice Gray?

MR MOSLEY: No, your Honour.

HER HONOUR: Thank you.

MR MOSLEY: Now, we submit that there is no arguable case and, in any event, it is necessary for the applicant to seek an enlargement of time under the High Court Rules. He seeks certiorari being the principal relief that has to be sought within six months of the date of the decision.

HER HONOUR: Just give the interpreter a chance to interpret.

MR MOSLEY: I am sorry, yes. I beg your pardon. The applicant seeks principal relief in the nature of certiorari to quash the decision of the Tribunal. The Tribunal decision was given on 8 June 2007 and this application was made on 15 September 2008 and on my calculations the application therefore for a writ of certiorari is 11 months out of time. For a writ of mandamus which was also sought in the prayer for relief, that is some 15 months out of time. Accordingly, your Honour, we rely on the principles regarding enlargements of time that are applicable as set out by his Honour Justice McHugh in Re Commonwealth; Ex parte Marks.

HER HONOUR: I have to say that I calculated that the application for certiorari was nine months out of time and the application for mandamus was 13 months out of time. I was looking at rules 25.06.1 and 25.07.2 and I think that is right, Mr Mosley.

MR MOSLEY: Your Honour, the application to show cause was issued on 15 September 2008 and the Tribunal decision was 8 June 2007, I think. No, I am sorry, 30 May 2007. Perhaps it was handed down on 8 June. I think that is where that date comes from. Yes, it was handed down or sent on 8 June 2007. So they are the relevant dates. Then it is a mathematical calculation which I may have got wrong.

HER HONOUR: There is a period for the filing of the writs after which you calculate them being out of time.

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

HER HONOUR: So that is where I calculated the nine and the 13 months.

MR MOSLEY: Your Honour may be right. Perhaps my instructor can check those dates and see if I have that right. Your Honour is probably correct about that. The principles as set out in Ex parte Marks, does your Honour wish me to go through those for the benefit of the applicant?

HER HONOUR: No, it is not necessary to do so. You have done so in your written submissions.

MR MOSLEY: I have, your Honour. His Honour considered fundamental consideration with the length of the delay. In brief, your Honour, we submit that there are numerous factors against extending the time. There is no explanation for the delay save that the plaintiff says that he was pursuing relief elsewhere, and so much appears in paragraph 13 of his affidavit. In that regard, I would refer your Honour to the decision of Justice Hayne in a similar application which I have noted at Applicants M31/2004, a decision of his Honour in August 2004.

HER HONOUR: Just keep going slowly so the interpreter can keep going.

MR MOSLEY: Yes, your Honour. I said I would refer the Court to a decision of Justice Hayne in which his Honour said that:

The applicants’ commencement and prosecution of proceedings in first the Federal Court and later the Federal Magistrates Court, far from constituting any basis for granting the extension of time that would be necessary to their making application for mandamus or certiorari, provide powerful reasons against granting such an extension. Whether or not the disposition of those earlier proceedings precludes the applicants from making the contentions which they would seek to make in this Court, the institution and disposition of those proceedings together constitute reason to refuse the extension of time that would be a necessary condition precedent to their making the claims they seek to make.

We would also further submit to your Honour that the grounds which the applicant has articulated in his application for an order to show cause are formulaic and there is nothing to demonstrate that the Tribunal fell into jurisdictional error.

HER HONOUR: I do not need to be addressed by you on abuse of process, res judicata or estoppel.

MR MOSLEY: As your Honour pleases. Further, we would submit that there is nothing to suggest that the plaintiff would have good prospects of success if time were to be enlarged and further, there is no material to demonstrate that there is anything exceptional about the case that would justify an enlargement of time. The plaintiff has already had resort to the judicial power of the Commonwealth for the same relief as he now seeks and further, it would be inappropriate to extend time in circumstances where the Federal Court appellate decision remains unchallenged. Finally,

your Honour, we would submit that there is a public interest in the finality of litigation.

HER HONOUR: Justice McHugh made that point in Ex parte Marks.

MR MOSLEY: Yes, he does at point (v) that the constitutional:

writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

I think they are the principal matters that I put to your Honour. I could address your Honour about prohibition being an inappropriate remedy, but I think that was one of the matters that your Honour said that - - -

HER HONOUR: Do not require that assistance.

MR MOSLEY: No.

HER HONOUR: You might make an inquiry about the time period since there is a difference between us.

MR MOSLEY: Yes. I do not think he has worked it out yet, I am sorry, your Honour.

HER HONOUR: I am reasonably confident that I am right.

MR MOSLEY: Yes, I accept your Honour’s figures. I did those late last night and perhaps I erred in the calculation on time.

HER HONOUR: All right. Thank you, Mr Mosley.

MR MOSLEY: Thank you.

HER HONOUR: Mr Interpreter, would you let the plaintiff know that he has an opportunity now to reply to what Mr Mosley said, if he wishes.

PLAINTIFF M66 (through interpreter): I have only to say what I told you earlier.

HER HONOUR: Already. Thank you very much.

On 15 September 2008 the plaintiff, a Sri Lankan national, filed an application for an order to show cause seeking certiorari, mandamus, prohibition and remitter in respect of a decision of the Refugee Review Tribunal dated 8 June 2007 affirming a decision made by a delegate of the Minister for Immigration and Citizenship not to grant the plaintiff a Protection (Class XA) visa.

The plaintiff obtained a temporary travel visa to travel to Australia from Sri Lanka in February 2006. He came to Australia on 25 July 2006 and on 8 September 2006 applied for a protection visa. A delegate of the Minister refused to grant the visa on 13 November 2006 which decision was affirmed by the Tribunal. On 7 July 2007 the plaintiff filed an application for judicial review of the decision of the Tribunal in the Federal Magistrates Court of Australia. The plaintiff was unrepresented. On 14 April 2008 Federal Magistrate Riethmuller dismissed the application with costs: MZXRN v Minister for Immigration and Citizenship [2008] FMCA 729.

On 5 May 2008 the plaintiff filed a notice of appeal in the Federal Court of Australia from the whole of the judgment of Federal Magistrate Riethmuller. Again the plaintiff was unrepresented. On 28 August 2008 Justice Gray dismissed the appeal with costs: MZXRN v Minister for Immigration and Citizenship [2008] FCA 1622.

On 15 July 2009 the Minister filed a summons seeking an order that the application for an order to show cause be refused on the basis that the plaintiff cannot establish the arguable case necessary for the grant of prerogative relief and, alternatively, on the basis that the application is an abuse of process and, in the further alternative, on the basis of res judicata and/or estoppel.

The plaintiff’s application for writs of certiorari and mandamus in respect of the Tribunal’s decision are respectively nine months and 13 months out of time. See the High Court Rules 2004 rules 25.06.1 and 25.07.2. The availability of prohibition depends upon whether the decision of the Tribunal is liable to be quashed by the grant of certiorari.

In order to proceed, the plaintiff requires an enlargement of time. The plaintiff has sought the Court’s leave for an enlargement of time pursuant to the Court’s general power to enlarge time in rule 4.02 of the High Court Rules 2004 and also pursuant to the specific power to enlarge time with respect to mandamus to be found in rule 25.07.2.

In Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 at 474 [15]; [2000] HCA 67 Justice McHugh pointed out that in cases of this type the public interest is engaged because the relief which is sought is:

directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

His Honour then said at 474 [16]:

The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.

Factors relevant to an application to extend time include not only the length of the delay and the reasons for it, but also the strength or weakness of the case now sought to be advanced and the utility of advancing that case.

In the present case the application was made more than 15 months after the decision of the Tribunal was handed down. The explanation for the delay which has been given appears chiefly to be that the plaintiff was pursuing relief elsewhere. On the materials there is no support for a case that the Tribunal fell into jurisdictional error and no arguable case for relief has been disclosed.

The plaintiff has already had recourse to the judicial power of the Commonwealth in respect of the decision of the Tribunal in his application to the Federal Magistrates Court and the appeal from that decision to the Federal Court. The decision of the Federal Court of 28 August 2008 has not been subject to any appeal.

The institution and disposition of those proceedings coupled with the significant delay and want of any arguable case together constitute reason to refuse the application for an extension time within which to bring the present proceedings. It is unnecessary for me to consider other grounds for refusal of the application advanced by the Minister. Leave to extend time is refused and the application is dismissed.

Are you seeking costs, Mr Mosley?

MR MOSLEY: Yes, we do, your Honour.

HER HONOUR: You do. Mr Interpreter, Mr Ganegoda, you might like to translate the orders and the reasons generally will be available within a few days. The Registry will provide a copy. But I am about to pronounce the orders. The orders are:

1. The plaintiff’s application for an extension of time within which to bring the present proceedings is refused.
   
2. The plaintiff’s application for an order to show cause is dismissed.
   

Mr Mosley, were there ever any costs reserved in this matter?

MR MOSLEY: I do not believe so, no, your Honour.

HER HONOUR: All right.

3. The plaintiff is to pay the first defendant’s costs of the application.
   

PLAINTIFF M66 (through interpreter): If I do not have funds to pay, what happens?

HER HONOUR: Well, the order is that the plaintiff is to pay the first defendant’s costs.

Mr Ganegoda, thank you for your assistance. The plaintiff may go now.

MR MOSLEY: Can I just say, your Honour, I did check whilst your Honour was giving your Honour’s judgment in that.

HER HONOUR: Yes.

MR MOSLEY: Your Honour is quite correct about that. I was wrong. Thank you, your Honour.

HER HONOUR: Yes. You have to allow a period before you start your calculations.

MR MOSLEY: Yes.

HER HONOUR: Thank you.

AT 9.59 AM THE MATTER WAS CONCLUDED