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High Court of Australia Transcripts |
Last Updated: 12 October 2009
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M90 of 2009
B e t w e e n -
PLAINTIFF M90/2009
Plaintiff
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Defendant
REFUGEE REVIEW TRIBUNAL
Second Defendant
Application for an order to show cause
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON WEDNESDAY, 7 OCTOBER 2009, AT 12.05 PM
Copyright in the High Court of Australia
MS N.P. KARAPANAGIOTIDIS: If your Honour pleases, I appear on behalf of the plaintiff. (instructed by Asylum Seekers Resource Centre)
MR S.P. DONAGHUE: If it please the Court, I appear for the first defendant. (instructed by Australian Government Solicitor)
HER HONOUR: Yes, Ms Karapanagiotidis.
MS KARAPANAGIOTIDIS: Your Honour, if I can commence by checking that all the documents that have been filed are before your Honour because the matter has come on very quickly.
HER HONOUR: Yes, certainly.
MS KARAPANAGIOTIDIS: Thank you. There is an application for an order to show cause.
HER HONOUR: Yes, I have that. I have read that.
MS KARAPANAGIOTIDIS: There is a summons.
HER HONOUR: Yes, I have seen that.
MS KARAPANAGIOTIDIS: There are two affidavits in support, one by Kon Karapanagiotidis, two annexures.
HER HONOUR: Yes, I have those. I have not had a full opportunity to read the second annexure.
MS KARAPANAGIOTIDIS: Your Honour, that is probably fortuitous because annexed to the second one is the Refugee Review Tribunal, but it appears mistakenly the wrong decision.
HER HONOUR: I see. I was halfway through reading that. I did notice that the application for an order to show cause referred to a decision of 9 July 2009 whereas the exhibit, 27 July 2009.
MS KARAPANAGIOTIDIS: That is right. Your Honour, I apologise for that. It is just something that was noticed now. The respondent - - -
HER HONOUR: That affects your summons too, I think.
MS KARAPANAGIOTIDIS: It should not.
HER HONOUR: I will just check that, shall I, that relief is being sought in relation to a decision dated 27 July 2009?
MS KARAPANAGIOTIDIS: Your Honour, it should not read like that but I understand that because of that mistake what followed is an amendment was made. Your Honour, I would seek to amend it to reflect the proper date of the decision which is, indeed, the date in the application for an order to show cause and it relates to 9 July.
HER HONOUR: No objection to those amendments, Dr Donaghue?
MR DONAGHUE: No, there is not, your Honour.
HER HONOUR: Yes, thank you. Yes, I will allow you to make those amendments.
MS KARAPANAGIOTIDIS: Thank you, your Honour. The first defendant has an affidavit to serve and annexed to their affidavit is a copy of the actual decision that is being referred to. So I would be grateful if that could be provided because it is clearly a copy there and I will be making reference to it.
HER HONOUR: I do not have that at the moment?
MS KARAPANAGIOTIDIS: No. So I would be grateful perhaps if at this stage - - -
MR DONAGHUE: Your Honour, it was sworn just moments ago and if I could hand up and file in Court a copy of that affidavit?
HER HONOUR: Yes, certainly. Thank you for that. And that annexes the correct decision?
MR DONAGHUE: Yes, it does, and several other documents.
HER HONOUR: Or exhibits, I should say.
MR DONAGHUE: Yes. We have apparently some confusion about where the original is. This is a copy I am told. Maybe we have handed the original to my friends.
HER HONOUR: I suppose that can be sorted out later.
MR DONAGHUE: Yes, we will. Okay. This is the original.
HER HONOUR: Thank you. I have read the affidavit. I obviously have not had time to read the exhibits.
MS KARAPANAGIOTIDIS: No, your Honour. I, again, certainly apologise for that confusion and mix up. The last affidavit, though, that should be before you is one, a very brief one, filed this morning by Simon Leske, solicitor for the Asylum Seekers Resource Centre, just outlining and providing some more information in respect to the procedural history of this matter. That was filed literally five minutes before we walked into Court.
HER HONOUR: Yes. I do not seem to have that, although I do have a recollection that I have read it. I will just take a moment to look at that again. Relevantly, that deposes to, in paragraph 4, to advice that the plaintiff is to be deported from the country today at approximately 3.00 pm.
MS KARAPANAGIOTIDIS: That is right, your Honour.
HER HONOUR: In that context, as I understand it, you are seeking interim injunctive relief?
MS KARAPANAGIOTIDIS: Precisely. The procedural history has been outlined, but if I can perhaps recap it so that it is very clear to your Honour what has occurred. The plaintiff is presently held in Perth Immigration Detention Centre. On Sunday, 4 October 2009 his solicitor on his migration matters, Mr Perera, who has deposed a number of those affidavits, appeared for three men who were to be deported making application for a review of the Refugee Review Tribunal and then accompanying that, an order for an injunction.
HER HONOUR: The application was out of time, I expect, was it?
MS KARAPANAGIOTIDIS: That is right. My understanding is that is what decided the issue. There are no reasons obviously because of the short time.
HER HONOUR: So a late application is sought to be made in relation to the Refugee Review Tribunal decision of 9 July 2009?
MS KARAPANAGIOTIDIS: That is right. It fell outside of the 35-day time period.
HER HONOUR: Under 486A, I think, is that right? I think 35 days - - -
MS KARAPANAGIOTIDIS: No, it is under, in terms of the Federal Magistrates Court, section 477(2).
HER HONOUR: Section 477(2), 35-day time limit.
MS KARAPANAGIOTIDIS: That is right.
HER HONOUR: Is this one of those cases that is affected by the 2005 amendments such that the determination is exclusively within the province of this Court? In other words, why are you not in another court other than this Court I suppose is another way of raising or flagging that point?
MS KARAPANAGIOTIDIS: Yes, your Honour. It was decided on the extension of time issue. An appeal was made yesterday to the Federal Court.
HER HONOUR: In relation to an adverse decision on the time, was it?
MS KARAPANAGIOTIDIS: That is right. So it was appealing the Federal Magistrate’s decision on time and because of the operation I think introduced in March of this year, the operation of section 476A(3)(b), which provides that:
Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:
(a) a judgment of the Federal Magistrates Court that makes an order or refuses to make an order under subsection 477(2) –
That subsection, your Honour, is the 35-day rule.
HER HONOUR: That explains, does it, you now having resort to an application for an order to show cause?
MS KARAPANAGIOTIDIS: It does, your Honour. The matter was brought before the court yesterday and that issue arose. Time was provided to consider it further and whether there was any other supervisory power perhaps of the court and upon further consideration that application or the appeal was abandoned and proceedings were then issued here.
HER HONOUR: On the basis that there was no jurisdiction in the Federal Court.
MS KARAPANAGIOTIDIS: Precisely, your Honour.
HER HONOUR: As a result of 476A(3)(b).
MS KARAPANAGIOTIDIS: That is right. What is said in respect of this application is that there is a serious issue to be tried and that the balance of convenience favours the plaintiff. In the notice to show cause there are a number of grounds outlined, of course, without the benefit of the file or a copy of the tapes or a transcript of what transpired at the hearing, but, your Honour, two significant ones, in my submission - - -
HER HONOUR: Yes, because, without being critical, it looks like a very broad approach to a whole range of grounds. So I would be assisted if you could identify for me what are the grounds of real substance in the application.
MS KARAPANAGIOTIDIS: Yes, your Honour.
HER HONOUR: So I am looking now at the grounds on which relief is claimed. I am at page 3.
MS KARAPANAGIOTIDIS: Under a number of subsections it is effectively a – either lacking complaint and it is the use that the Tribunal member made of evidence provided by other applicants in other hearings. There were 12 men who arrived in the same boat. If you go to the decision, your Honour, in the defendant’s annexure, I can just refer you to the paragraphs where that is dealt with.
HER HONOUR: Yes. So I am now looking at the affidavit handed up in court this morning by Dr Donaghue and I am looking now at the decision dated 9 July 2009 by Tribunal member, Mr Paul Fisher.
MS KARAPANAGIOTIDIS: That is right. If you go to page 16 and it commences paragraphs 92 to 97.
HER HONOUR: I will just take a moment to read those.
MS KARAPANAGIOTIDIS: Yes, your Honour.
HER HONOUR: Yes, I have read that.
MS KARAPANAGIOTIDIS: What is complained of here, said to have substance, your Honour, is that the Tribunal has put – it is not said that it was not raised and, clearly, paragraph 97 indicates that it was, but it is - - -
HER HONOUR: So does that dispose of one of the grounds of complaint, that notice was given?
MS KARAPANAGIOTIDIS: The 424A complaint?
HER HONOUR: Yes.
MS KARAPANAGIOTIDIS: Your Honour, what is said there is that it is not given clear particulars and that is what is required by the section. It has given some particulars and then it seems, in our submission, to have adopted a broad-brush approach making reference to contradictions in other applicants’ claims compared to this applicant in a way - - -
HER HONOUR: I am now looking at page 5 of the application and that is what you are addressing, is it?
MS KARAPANAGIOTIDIS: Yes, that is right.
HER HONOUR: Looking at particular (c) for argument sake.
MS KARAPANAGIOTIDIS: Yes, (c) and (d) where some of the section is reproduced. The complaint is it is put in a way that is incapable, in our submission, of being responded to. It is a serious claim which is of invention and collusion and if a claim such as that is thought to be relevant, and there is an issue as to whether it is relevant or not, but if the Tribunal finds that it is relevant, then, in our submission, it needs to be put precisely and with particularity in a manner to allow the applicant to respond. It is not as if this is an issue that has arisen with respect to a witness who has appeared before the Tribunal who can be challenged in some way.
HER HONOUR: Was the applicant appearing on his own behalf or with some assistance from a migration agent or counsel or whatever?
MS KARAPANAGIOTIDIS: The applicant had a migration agent present, Ms Perera, and she speaks of that in one of her affidavits and a complaint made by her in the affidavit and one that is relied on also in this application is – and it is page 7 of the application, paragraph 6.
HER HONOUR: Yes, of the poor phone transmission?
MS KARAPANAGIOTIDIS: That is right. The applicant and the Tribunal member were both at Christmas Island at the time of the hearing and the representative was appearing by way of telephone link up and she states that that transmission was poor and, again, your Honour, I say that without the benefit of – I have certainly not listened to the Tribunal hearing tapes, but poor to the extent that she could not hear what was going on. The argument there is if that is maintainable on the facts as she deposes, then there is a real issue as to whether or not he was given the representation that he was entitled to. That has a possibility also of impinging on some of the other grounds.
HER HONOUR: This is looking ahead a great deal, I suppose, but is there any prospect that if this matter is to be a contested matter that facts can be agreed? Because a normal progress would be some sort of referral to a Full Court, but that course can only really be taken in circumstances where there is a level of confidence that there are no factual disputes.
MS KARAPANAGIOTIDIS: Your Honour, I am unable to answer that not having heard the actual hearing, whether or not - - -
HER HONOUR: No. You are just not able to – you have not heard the tapes and you simply do not know whether that is - - -
MS KARAPANAGIOTIDIS: No, my involvement commenced yesterday afternoon, your Honour.
HER HONOUR: - - - a substantive complaint to be pursued?
MS KARAPANAGIOTIDIS: That is right. The representative certainly has sworn an affidavit to that effect.
HER HONOUR: Yes, I have read that.
MS KARAPANAGIOTIDIS: So it seems to, in my submission, have substance, but I have – I mean, it is clearly a case that would require a transcript of what occurred at the Tribunal. But that matter is certainly relied upon, your Honour, and it is a significant submission that the plaintiff makes in respect of the use of evidence from other applicants. Obviously it is a Tribunal, it is not a court, otherwise it is an out-of-court statement made by somebody else that would otherwise not be admissible. The Tribunal is not bound by that, but certainly considerations of fairness, of a person being able to substantively appear, require, in our submission, that it be put to him, if deemed to be relevant, quite clearly so that he has some opportunity of responding and dealing with this. The other applicants are not named. The precise differences in contradictions are not identified.
HER HONOUR: There were 12 people on the boat, were there not?
MS KARAPANAGIOTIDIS: There were 12 people, that is right. There seems to be – and you can see paragraph 93 a discrepancy between the applicant and somebody else in relation to the whereabouts of a Leslie Mendis. So it seems to be quite clearly used there, your Honour, in my submission, to say, well, who is telling the truth? It is a truth finding exercise. It is also used in quite a speculative way. There is a reference, I have referred to it in this outline.
HER HONOUR: So far as I can glean it, there were adverse credibility findings which partly depended on the change of story between the first interview by the department – and this is so far as I have been able to glean in half an hour – but at that first interview there was an indication that the applicant had no political affiliations or concerns of any sort and then that account or story is subsequently altered to include quite detailed claims in relation to political affiliation. Is that a correct understanding?
MS KARAPANAGIOTIDIS: That is right. I mean, weight was attached to the original interview. Evidence was given, from what I can glean, about that, waiting to speak to a lawyer, so it was factually addressed. There is reference to the Department of Immigration’s interview also by the decision-maker and that also features in the order to show cause, because what is said there is that there was substantial interpreting errors in that interview not taken into account by the Tribunal member who then goes on to rely on it. So certainly discrepancies and differences, you are right, your Honour, were referred to and findings as to credibility was made in relation to that. It cannot discretely be identified as being the only issue here because clearly in respect of other applications and other evidence, it is used quite explicitly, paragraph 96, “information may form the reason, or part of the reason, for affirming the decision”.
HER HONOUR: The information seems to be identified in paragraph 93, or am I wrong about that?
MS KARAPANAGIOTIDIS: That is some information. I mean, paragraph 92, for example, commences at, “The Tribunal noted that the applicant’s claims are strikingly similar in that sense of the claims of many other applicants”, and then it goes on to identify what your Honour just spoke of, many others did not claim political affiliations initially and then subsequently went on to. You are certainly correct that 93 is a specific contradiction or reference.
HER HONOUR: I suppose you would say this information in 94 picks up both what is referred to in 92 and in 93?
MS KARAPANAGIOTIDIS: That is right. Then in 95 it is more broadly contradictions between the applicant’s evidence and of other applicants.
HER HONOUR: That certainly takes you back to 92, does it not, I would have thought?
MS KARAPANAGIOTIDIS: Well, it has said that because it has never really identified with any specificity or particularity that one does not really know – I mean, the submission for the plaintiff would be that the Tribunal member here has taken into account the other applications and their evidence given there and that he has gone on to consider that and identify and rely upon contradictions between both of them.
HER HONOUR: You are essentially saying, I take it – and I am only raising these matters so I can clarify them – but you are essentially saying, are you, in terms of section 424A, a disclosure that there are other – evidence from other applicants was not sufficient for the purposes of making a proper response. That is the point you are seeking to make, is it?
MS KARAPANAGIOTIDIS: That is correct. Can I also just make a reference to paragraph 79. It is another use of other applicants and you can see there it commences:
The Tribunal pointed out that it understood two of the group of 12 had returned to Sri Lanka, which might suggest that they didn’t seem to concerned about their fate.
Then there is a response of sorts to that. I take your Honour to that because it is another illustration of the use of the other applicants, what has happened to them, the evidence that they have given, to make adverse critical findings against this applicant. So it is really just to highlight the importance of it and, by virtue of that, the real need to identify clearly to the applicant this is what I am relying upon and giving him an opportunity to respond. So, your Honour, that is a - - -
HER HONOUR: So you are, in the final analysis, asserting jurisdictional error raised on the basis of some of these separate points you have been making?
MS KARAPANAGIOTIDIS: Yes. Combine that with some of the procedural matters in terms of the hearing and how it did take place in respect of his representative. There are some other matters raised also - - -
HER HONOUR: There is an allegation of bias, is that - - -
MS KARAPANAGIOTIDIS: Apprehended bias.
HER HONOUR: Apprehended bias. That is to be proceeded with it, I take it?
MS KARAPANAGIOTIDIS: At this stage, your Honour, it is and it rests upon the use of information and evidence of other applicants that has not fully been disclosed and that this applicant has not been privy to. So the use of a Tribunal member - - -
HER HONOUR: So it is a 424A case and, depending on that, is an allegation of apprehended bias.
MS KARAPANAGIOTIDIS: Yes, and broader principles, if you like, of it fundamentally being procedurally unfair to the applicant to proceed in this way.
HER HONOUR: That brings in section 425.
MS KARAPANAGIOTIDIS: That is correct and I think that is in paragraph 2, “The Tribunal decision involved a breach of s425 and/or procedural fairness”.
HER HONOUR: In a sense, paragraph 3 is your main ground, I suppose, and paragraphs 1 and 2 depend on it.
MS KARAPANAGIOTIDIS: Yes.
HER HONOUR: Then 4, I can see, picks up similar matters but in the setting of irrelevant considerations.
MS KARAPANAGIOTIDIS: Yes.
HER HONOUR: Paragraph 5, of course, is the obverse of that. Is 6 a repetitive ground?
MS KARAPANAGIOTIDIS: No, 6 relates to the migration agent and her appearance or effective non-appearance at the hearing. So it is the phone transmission.
HER HONOUR: Yes, I see, a separate issue really. Paragraph 7 is a sort of Yusuf type point, is it?
MS KARAPANAGIOTIDIS: Yes, in that one of the grounds or complaints was that a Mr Kumara, who was this applicant’s employer and the alleged people smuggler, the person who provided the boat, it was alleged and put that he owed him money in respect of his travels and that threats had been received from this gentleman since his arrival in Australia. The Tribunal looks at that and does not accept that claim but says, well, if I do accept it, it is not for – it would be criminally motivated. There is no Convention nexus, although the applicant spoke of this person being aligned with an opposing political party. He then goes on to speak about state protection and the availability of it and finds – perhaps I should just take your Honour to the paragraph. I have reproduced it, effectively, but I have not numbered the paragraph.
HER HONOUR: Where am I looking now?
MS KARAPANAGIOTIDIS: I am on paragraph 7 but I will take your Honour to the Tribunal’s finding.
HER HONOUR: Yes, I see. So back to the exhibit.
MS KARAPANAGIOTIDIS: Back to the exhibit, page 27.
HER HONOUR: Page 27. Yes, I have that.
MS KARAPANAGIOTIDIS: It is all under the subheading “Whether State Protection Against the People Smuggler Would be Available to the Applicant”.
HER HONOUR: Yes, I see.
MS KARAPANAGIOTIDIS: It is really paragraph 160.
HER HONOUR: Next page.
MS KARAPANAGIOTIDIS: Next page where, your Honour, the – perhaps I will just stop for a moment.
HER HONOUR: Yes, I will just take a moment to read it.
MS KARAPANAGIOTIDIS: Yes.
HER HONOUR: Yes, very well. I have read that.
MS KARAPANAGIOTIDIS: So the finding is that:
No evidence to suggest that where a rich person is seeking to use his influence to pervert the course of justice by bribing corrupt police those police agree to be corrupted for the reason that the victim is a fisherman, or a poor person.
So the finding, in our submission, is strained in that there is an acceptance of Sri Lankan protective authorities being amenable to the influence of somebody who is rich, influential and somebody who has connections and providing support to such a person and it is really said that, in light of that finding, what does follow is that such protection is withheld from a person in the applicant’s particular socio-economic group. So the complaint there, your Honour, is, in looking at that issue, the Tribunal has fallen into error, because if you accept or if they accept the first part, then it is said that the second should necessarily follow and it is not a question of whether police agree to be corrupted because somebody is a poor person or a fisherman.
Your Honour, they are the grounds – I should just make clear, though, you made reference to paragraph 5 – and I am back to my document.
HER HONOUR: Yes, so we are back at section 425.
MS KARAPANAGIOTIDIS: That is right. That is not a repeat of the other evidence of other applicants. That more so deals with the applicant in the hearing complaint of memory problems and that affecting his evidence and the finding was, by the Tribunal, that without medical evidence he would not take that into account and the complaint there is that was not put to this applicant who complained of memory problems affecting him in giving his evidence. Along with that is what I referred to earlier and that is what I referred to earlier, and that is the DIAC decision, reliance upon the department decision, notwithstanding interpreting errors made at that stage.
Your Honour, there is, if time permitted, the document would be a bit easier to read and I certainly apologise to your Honour for that, but it essentially does contain the substantive arguments that the plaintiff would seek to ventilate and would seek to have some more time in which to put his case properly and on that basis, your Honour, in terms of balance of convenience, it is said that – and there is the affidavit from Ms Perera where she speaks of one of the other applicants being deported and the - - -
HER HONOUR: Well, on a serious question to be tried, you would be seeking to persuade me that you have got an arguable case.
MS KARAPANAGIOTIDIS: Yes. In our submission, your Honour, the matters identified, particularly the nature of the hearing, the process in terms of the applicant’s representative being able to appear, and particularly the use of other evidence from other applicants, it is said that those two matters are significant and do raise an arguable case at this stage.
HER HONOUR: Yes. Yes, Dr Donaghue. The first thing I am interested in is whether you agree that this Court is the Court exclusively invested with jurisdiction to determine this matter.
MR DONAGHUE: I do not. It is not. Really, that is an important first starting - - -
HER HONOUR: Were you on notice in relation to what seemed to be an urgent application yesterday in the Federal Court?
MR DONAGHUE: My instructor was.
HER HONOUR: Yes. Was there agreement at that stage in relation to jurisdiction?
MR DONAGHUE: Your Honour, it is important to clarify exactly what we are talking about.
HER HONOUR: Well, yes, very well. I will leave you be to run the argument as you see fit.
MR DONAGHUE: I do intend to come straight to these issues.
HER HONOUR: Yes, it is an important point.
MR DONAGHUE: Indeed it is. What your Honour has before you now – and we knew that there was a proposal to come here but we did not know what the application was. The application is a show cause application, that is an indication of the original jurisdiction of the court under 75(v). It is not an appeal from anything that has gone before.
HER HONOUR: No.
MR DONAGHUE: That is important because the jurisdictional question relates to appeals because the application was made in the Federal Magistrates Court out of time. It appears, although reasons are not available, that it was dismissed on the basis that the learned Federal Magistrate decided not to extend time and under amendments to the Migration Act, that commenced – that I will hand up, if I may, because I would like to take your Honour through some of them. I will give a copy to my friend.
HER HONOUR: These are the 2005 amendments?
MR DONAGHUE: These are the March 2009 amendments.
HER HONOUR: The 2009 amendments.
MR DONAGHUE: What I am handing up to your Honour is the current consolidation, which is the easiest way to follow what has happened.
HER HONOUR: Yes, thank you.
MR DONAGHUE: I will come to the detail of that in a moment, but the effect of it is, we say, that once the Federal Magistrates Court has made a decision refusing to extend time, there is no appeal against that decision either to the Federal Court or to this Court. The effect of the regime is similarly that if the Federal Court in that small category cases where the Federal Court have original jurisdiction, if the Federal Court refuses to extend time, similarly there is no appeal from that decision either to the Full Federal Court or to this Court.
HER HONOUR: So the mechanism for relief, if relief is sought, is through the application for an order to show cause?
MR DONAGHUE: Perhaps, your Honour, but if you do that in a matter of this kind where this Court’s jurisdiction is concurrent with that of the Federal Magistrates Court, you are just replicating exactly the same application that has already been made below, and it would be perfectly open to your Honour to remit this matter to the Federal Magistrates Court, where the position would then be exactly the same as it was on Sunday.
HER HONOUR: Would not the position then be that there was an application for an order to show cause as distinct from an application for an extension of time as part of an appeal?
MR DONAGHUE: It would but for the fact - - -
HER HONOUR: So there are those differences, I suppose.
MR DONAGHUE: Your Honour will see in what I have just handed up, the second-last page, 486A(2) - your Honour might recall that - - -
HER HONOUR: This is a time limit.
MR DONAGHUE: This is a time limit on exactly the same kind that applied - - -
HER HONOUR: I was referring to that before. I had this in mind.
MR DONAGHUE: Yes. So it was the case that there was a time limit in this Court that was invalidated in Bodruddaza. Now what has happened, as of March this year, is in relation to all courts, the Federal Magistrates Court, the Federal Court and this Court, there is a 35-day period with a power to extend. The power to extend is in the same terms, as your Honour will see in subsection (2), in all of those courts. That was the subsection – the equivalent provision in the Federal Magistrates Court is 477(2) and that was the paragraph that her Honour was addressing on the weekend and found that circumstances did not justify an extension of time.
So the reason that I commenced my submissions by saying it is important to clarify what this application actually is, it has been framed as an application for an injunction. It cannot be that. There has to be an extension of time granted before there is a proceeding on foot in this Court. The first matter, in my submission, that your Honour would need to consider is whether you are persuaded pursuant to section 486A(2) that an extension of time should be granted.
If your Honour was persuaded of that, then we would get to the question – and that is where the applicant lost on the weekend – then we would get to the question of an injunction or remittal. As your Honour rightly put to me, if the extension was granted and then the matter was remitted, then there would be an actual application for show cause on foot rather than just an extension of time.
HER HONOUR: This is not one of those cases where there is an enormous time lapse between the date of the Refugee Review Tribunal decision and an application in this Court for relief.
MR DONAGHUE: No.
HER HONOUR: Sometimes one sees years going by.
MR DONAGHUE: Yes, sometimes one sees – yes, I - - -
HER HONOUR: So it is not that sort of a case.
MR DONAGHUE: It is not, but what it is - - -
HER HONOUR: The decision is in July and we are now here just some months later in relation to an application which I guess is based on the interests of the administration of justice, bearing in mind the kinds of grounds which we have just gone through.
MR DONAGHUE: But all of those grounds were available to be put in the Federal Magistrates Court. The applicant had legal representation. They made their application to the court that under this Act is supposed to deal with matters of this kind, the Federal Magistrates Court. It applied the same test that your Honour is being asked to apply and the applicant lost. The regime that this Act as of March this year creates is a regime where that decision is clearly intended to be final because it expressly excludes any avenue of appeal from a judge making a decision on an extension.
HER HONOUR: So you are saying the only difference between 477(2) and 486A(2) is the different courts in which the application is made?
MR DONAGHUE: Exactly. That is the only difference between them.
HER HONOUR: Of course, I could take a different view, I suppose. I am only speaking hypothetically. I have got a very slight acquaintance only obviously with this case, but if I were to take the view that it is in the interests of justice to extend that 35-day period, there would be the power to do that under section 486A(2). So that would dispose of the application for extra time.
MR DONAGHUE: It would.
HER HONOUR: Then the matter would be capable of being remitted, would it, under section 44 of the Judiciary Act?
MR DONAGHUE: Of the Judiciary Act, it would, yes, 476B.
HER HONOUR: Is that how it would work?
MR DONAGHUE: That is correct, in my submission. If your Honour were persuaded to that view - - -
HER HONOUR: What about the decision in MZXOT, which was post-Bodruddaza.
MR DONAGHUE: Your Honour, perhaps I have done this in an awkward order, but if I could take your Honour through the provisions. I should say just before I do that, my friend’s material says the removal takes place at 3.00 pm today. On my instructions that is not right, it takes place at 3.55 pm Perth time, so more like 6.55 pm eastern daylight time. Ms Ngo’s affidavit in paragraph 12 indicates that fact. So there is perhaps slightly less urgency than there was. If I could take your Honour to the sections, if your Honour looks at 476, this is the jurisdiction of the Magistrates Court.
HER HONOUR: Yes, I have that.
MR DONAGHUE: The starting point is subsection (1) which makes the Magistrates Court jurisdiction concurrent with that of the High Court. There are then some exceptions to that concurrency, and this was the issue in MZXOT.
HER HONOUR: Yes, the primary decision point.
MR DONAGHUE: The primary decision exception, “primary decision” being defined in subsection (4) as a decision that is “reviewable under Part 5 or 7”. That exception is not relevant here because MZXOT involved a decision of the delegate not review in the RRT because the application was not made in time.
HER HONOUR: I will just make a note of that. So that was not reviewed in the RRT?
MR DONAGHUE: RRT, that is right. So because the attempt was made directly to challenge the delegate’s decision, the matter was a primary decision and it had to stay in this Court.
HER HONOUR: Yes. Now, because there was a decision in the RRT here not dealing with the primary decision - - -
MR DONAGHUE: It is not a primary decision, that is correct.
HER HONOUR: So that means, does it, that that has the consequence that the Federal Magistrates Court has the same original jurisdiction - - -
MR DONAGHUE: Jurisdiction as this Court.
HER HONOUR: - - - in relation to this application for an order to show cause?
MR DONAGHUE: Precisely. It does, under 476(1). Your Honour, the subject of remittal is dealt with in 476B, on the third page of what I have handed up, which was also considered in MZXOT.
HER HONOUR: I will just have a look at that.
MR DONAGHUE: That section in subsection (1) limits remittal in relation to migration decisions to the FMC.
HER HONOUR: So this would come under (3), would it?
MR DONAGHUE: It “may remit a matter, or part of a matter”, indeed, it would – no, sorry, that is to the Federal Court.
HER HONOUR: I am sorry, yes.
MR DONAGHUE: It is dealt with by reference to, really, under (2).
HER HONOUR: It is really under (2). It is the opposite of what the prohibition is really.
MR DONAGHUE: It is. It is a bit awkward. It might be that strictly the position is the remittal is under section 44 of the Judiciary Act and nothing takes away that power, but it is possible that is the - - -
HER HONOUR: Yes, perhaps that is the correct analysis.
MR DONAGHUE: Yes.
HER HONOUR: Yes, and (2) is just identifying what cannot be remitted. So there is a kind of omission, if you like, in the language of the section which would - - -
MR DONAGHUE: Indeed, taking away things where there would not otherwise be jurisdiction, but as we have seen under section 476(1) there is jurisdiction here.
HER HONOUR: Yes. So that takes away. So it would be section 44(1) of the Judiciary Act.
MR DONAGHUE: Indeed. So one has a position where there is concurrent jurisdiction and no statutory barrier to remittal, as long as there is actually a proceeding on foot here. If your Honour then goes to 477, you see a time limit in the Magistrates Court “35 days of the date of the migration decision” in subsection (1) and that would have been the date in early August in this case. Then a power to extend in subsection (2).
HER HONOUR: That is what the Magistrate was exercising on Sunday?
MR DONAGHUE: Well, it appears not to be – there are not reasons available, but everyone is proceeding on the basis – the order actually made was the application be dismissed.
HER HONOUR: But had the Magistrate been inclined to grant the application, it would have been done under that subsection?
MR DONAGHUE: It would have been done under that section, indeed. And the dismissal order may well be explicable on the basis that the proceeding before his Honour was incompetent absent an extension, so once she did not grant the extension. So we are happy to proceed on the basis that that is what happened. Now, going from there, your Honour, you need to go back to 476A which, in its early subsections, deals with the original jurisdiction of the Federal Court, but at the same time, in March of this year, the provisions I just took your Honour to were inserted. Subsections (3) and (4) were also inserted into 476A.
HER HONOUR: Into 476A, (3) and (4) were inserted. So they are new.
MR DONAGHUE: They deal with appeals. Subsection (3) excludes the appellate jurisdiction of the Federal Court in relation to two things, extensions of time or refusals to make an extension of time under 477(2), which the Federal Magistrates Court decision I just took your Honour to. So that explains the aborted proceedings in the Federal Court yesterday.
HER HONOUR: Yes, I see.
MR DONAGHUE: Subsection (b) is not directly relevant now except that it shows the policy of it because if in those matters that are within the original jurisdiction of the Federal Court, the application is made more than 35 days out of time, a Federal Court judge exercises again exactly the same power to extend as this Court would have or the FMC would have. That power is in 477A(2) and in that case, you could not appeal from the single judge in the Federal Court to the Full Court of the Federal Court because of that exclusion in (3)(b), if your Honour is still with me.
HER HONOUR: Yes.
MR DONAGHUE: So that section is getting rid of any appeal from either a single Federal Magistrate or a single judge in the Federal Court of any appeal on an extension of time point. Then the next subsection, in (4) eliminates any possible appeal to this Court from the Federal Court.
HER HONOUR: Of course, this is not an appeal from the Federal Court.
MR DONAGHUE: No, it is not, but the policy of these sections is eliminating every avenue of an appeal from an extension of time decision. The only thing that seems to be missing there is a section that says there is no appeal to this Court directly from the Federal Magistrates Court. We have dealt with appeals from the Federal Magistrates Court to the Federal Court, we have dealt within the Federal Court or from the Federal Court to this Court. You get that missing piece of the puzzle from the loose page that I hope was included in the bundle I handed up to your Honour, which is section 20 of the Federal Magistrates Court Act which says in subsection (1) there is no appeal directly from the FMC to this Court.
HER HONOUR: Yes. So all avenues of appeal in relation to extensions of time are shut off. This is not an MZXOT type decision because there was a decision in the Refugee Review Tribunal and otherwise no analogy with MZXOT.
MR DONAGHUE: Yes.
HER HONOUR: I am just going through this to make sure I have captured all the points. This is an application in respect of which there would be power under section 486A(2) to grant an extension of time if satisfied that it was necessary in the interests of the administration of justice to make that order. Once being so satisfied and in circumstances where that order is made, it is then possible that this application for an order to show cause is remitted to the Federal Magistrates Court pursuant to section 44(1) of the Judiciary Act.
MR DONAGHUE: In my submission, that appears to be the correct analysis. In my submission, the critical point out of all of that is that had this matter been commenced here originally on the Sunday or, say, late last week, there is very little doubt that this Court would have remitted it to the Federal Magistrates Court.
HER HONOUR: I see where you are going, I think, but - - -
MR DONAGHUE: In effect, in my submission, what has happening here today is a - - -
HER HONOUR: Second bite of the cherry.
MR DONAGHUE: - - - second bite of exactly the same cherry that was there. It is an appeal in everything other than name seeking to have this Court re-exercise precisely the function that was exercised on the weekend.
HER HONOUR: I do understand that, yes.
MR DONAGHUE: If your Honour is minded to allow the application, then that will create what is, in effect, an avenue of appeal from these extension of time decisions by coming to this Court.
HER HONOUR: Except, of course, I might take a different view in relation to the extension of time.
MR DONAGHUE: But this Court will start needing to rehear extension applications that are made in lower courts on the same criteria because only, once those matters are reargued, would the Court be able to decide what to do about whether they should be granted.
HER HONOUR: I do understand the complexity. You are saying there is an effective appeal despite the statutory prohibition in relation to appeal.
MR DONAGHUE: Despite the regime, indeed, and that because you cannot do it elsewhere, anyone who is denied an extension will say, well, I can go and rerun my application in the High Court and hope that the High Court takes a different view. In my submission, in assessing the 486A criteria, what the interests of justice requires, it is appropriate for the Court to look at this regime and the way that it appears to be directed to making extension decisions final and to say, well, you cannot proceed in that. It is not in the interests of justice for this Court to second guess decisions of lower courts where they have concurrent jurisdiction with this Court in matters of that kind. So, in my submission, that is a very powerful factor that should influence the Court in the exercise of its judgment under 486A(2).
The other matter, your Honour – there are a few other matters – but turning from the legislative regime, if I could just give your Honour some key dates – and I apologise, we have not had a chance to do this in writing, but - - -
HER HONOUR: That is perfectly all right.
MR DONAGHUE: The applicants arrived in November last year, 2008.
HER HONOUR: It is one applicant, is it not?
MR DONAGHUE: Sorry, it is one applicant now, yes. It was three applicants on the weekend and it is now one.
HER HONOUR: Yes.
MR DONAGHUE: The relevant RRT decision, as your Honour has seen, was decided on 9 July and notified the next day, on 10 July.
HER HONOUR: When does the 35 days run from?
MR DONAGHUE: I have not calculated that date, but it runs from the date on the decision.
HER HONOUR: So 9 July?
MR DONAGHUE: From the 9th, that is right. So that is dealt with in the definition in the relevant section. So it is sometime in mid-August.
HER HONOUR: Sometime mid-August, is it not?
MR DONAGHUE: Yes, probably around 13 or 14 August, I think, yes.
HER HONOUR: The 14th, I think, 13th or 14th.
MR DONAGHUE: On 5 August – and I am taking this from paragraph 5 of Ms Ngo’s affidavit – there were discussions between officers of the Immigration Department with the applicants in which they were informed of their rights to seek judicial review of the RRT’s decision and they indicated that they decided not to do that and that they would seek ministerial intervention under section 417.
HER HONOUR: That is in paragraph 5?
MR DONAGHUE: Paragraph 5 of Ms Ngo’s affidavit?
HER HONOUR: Yes, I see that.
MR DONAGHUE: There is a file note of the discussion, which I will not take your Honour to, but I am just trying to get the key dates straight. So rather than go down the judicial review path, they went down the 417 path. That path came to an end on 28 September – this is paragraph 8 of Ms Ngo’s affidavit – when the Minister said he would not intervene.
HER HONOUR: So this was ministerial intervention was sought as an alternative to judicial review?
MR DONAGHUE: Yes, it was. They were told you can appeal and they said, no, we will not appeal, we will ask the Minister to intervene. If he had intervened, he could have granted them visas, but he decided not to on 28 September. Two days after, as appears from paragraph 9, the applicants were advised that they would be removed. Then four days after that, which was last Sunday, on 4 October, they commenced their application for judicial review of the RRT’s decision. So it was not a challenge to the removal they had been notified of four days earlier, but it was a challenge back to the decision in July.
In my submission, why that is all important is that we are here today before your Honour with an environment or atmosphere of urgency, but the fact is this decision was made about three months ago. The applicants were told that they had a pathway, a judicial review pathway. They chose to pursue a different pathway. Then that pathway having failed, they brought an urgent application. The Federal Magistrates Court convened and heard the matter on a Sunday morning. They were legally represented. They advanced arguments about why the Tribunal’s decision should be set aside and they lost.
Now, the day of removal, having changed legal representatives, there is a completely different case. The arguments that are being raised that are said to show error have been put forward with no supporting particulars. There is not, for example, a transcript of the hearing that took place, even though there has been a period of three months and there has been legal representatives involved, not the present ones, but other representatives, and your Honour is asked to find, amongst other things, that there is a serious issue about whether particulars of the evidence of the other applicants were adequately put to the applicant at the hearing.
Now, you can see from the parts of the Tribunal reasons that your Honour was taken to, that something was put. There was a discussion as to the details, but there is no capacity now on the day of removal to know whether or not what was put was adequately put or fully explored.
HER HONOUR: That is right. That section 424A point is one that all I can do is say, well, I have got notice of the point being raised.
MR DONAGHUE: Exactly.
HER HONOUR: There is just nothing more that can be done at this stage.
MR DONAGHUE: But that is not, in my submission, good enough for an applicant, who has already had plenty of chances and has already made an argument, to come on the day and say, well, I give you notice at this point it may or may not be arguable, injunct the department while we sort out whether we have got a case or not. If they wanted to make that argument, it should have been made on Sunday and certainly if it was going to be made here, it should have been made on material that would allow your Honour to form a view about whether it is a good argument or not. Does your Honour have the Migration Act on the Bench with you?
HER HONOUR: No. I will just have it collected.
MR DONAGHUE: Yes, thank you, your Honour. The point I want to make and I will develop it a little and then take your Honour to the section. There were a lot of submissions about 424A. Your Honour may recall that at some stage in the fairly recent past, I cannot remember exactly when it commenced, a new section 424AA was introduced, which is a section that relieves you of the obligation to comply with 424A if you do it orally, if you put matters orally at the hearing, and that is what this Tribunal did. It is clear from its reasons, if your Honour looks at the reasons at - - -
HER HONOUR: One problem we all have, if I may just flag it, is that extensions of time in this context can turn on whether an application has merit or does not have merit and, in a sense, nobody, that is both of you at the Bar table, and myself have got a proper opportunity to consider those matters in the way that they would normally be considered with proper time. Maybe one solution to all of this is to have a fairly short interim injunction and to adjourn the further hearing of the application for an extension of time, with directions in relation to material confined to that application. That may be one just interim solution.
MR DONAGHUE: Certainly that is a possible solution, your Honour, and that is really why I took your Honour through the regime, because the difficulty, in my submission, with that and the determinative, in my submission, feature here on the extension and what the administration of justice requires, is that the jurisdiction of this Court is concurrent with that of another court. Clearly the primary court dealing with judicial review of migration applications under the Act is the Federal Magistrates Court.
HER HONOUR: The other way of doing it might be to remit the matter and allow the extension of time application to be heard on proper material, that is to say, different from the way in which it was done previously.
MR DONAGHUE: Your Honour is assuming that the application was not run properly below.
HER HONOUR: I am only trying to recognise that the – and I may be mistaken here, but the current legal representation is very new. I thought instructions were just received recently - - -
MR DONAGHUE: I think that is right.
HER HONOUR: - - - and that the application for an order to show cause has grounds which are new, which have been dealt with by the new legal representatives, and I am not sure what impact that has had in relation to the application made urgently to the Magistrate. I do not know whether you can enlighten me.
MR DONAGHUE: It appears that what happened is that application was made urgently to the applicant and failed and that the applicant’s then advisers sought help or referred the matter to the new legal advisers. I think one of the affidavits I have seen this morning suggests that that is what happened.
HER HONOUR: Yes, that is what I thought. The current legal advisers have had very little opportunity.
MR DONAGHUE: That is true, your Honour, but, in my submission, an eleventh hour, or later than an eleventh hour, change in legal team should not provide a basis for effectively rehearing an extension application that under the regime is intended to be final. While this has all happened very urgently, it has happened urgently because the applicant chose, having been told back on 5 August you can seek judicial review of this, not to do it and, having chosen not to do it and then been faced with removal, they have generated this urgency and the urgency was accommodated by the fact that the hearing was brought urgently in the Federal Magistrates Court and heard.
In my submission, there has not been any explanation given to this Court as to why it is an appropriate use of the time of this Court to conduct, in effect, a de novo rehearing of an application already brought on the weekend in urgent circumstances. In my submission, unless this Court requires very powerful circumstances to be explained to it as to why it should engage in that sort of task, it will very quickly be swamped by people who are seeking to have the Court re-exercise the jurisdiction of the Federal Magistrates Court. There just is no material as to why any argument here that is a good argument was not advanced on the weekend.
Now, your Honour, as you rightly point out, we are in some difficulty in terms of evaluating the merits of the argument, but that is, in my submission, a problem for the applicant. They bear the onus of persuading the Court both to extend time and to grant an injunction.
HER HONOUR: I suppose that is the problem I have, that I want to make sure that the current legal representatives have a proper opportunity to advance whatever case can be advanced and, indeed, for your client to have a proper opportunity to answer whatever case is advanced. As you say, no one has listened to the tapes. I mean, there is no way of knowing whether the ground in relation to the transmission being poor is – it is a substantive ground as presently put, but from submissions made from the other side of the Bar table, I took it that that ground may or may not be persisted with once there is an opportunity for the new legal representatives to evaluate the evidence.
MR DONAGHUE: But the legal representative who acted on the weekend was the legal representative who was on the other end of the phone and she did not complain, on my instructions, about inadequate transmission having prevented her from participating.
HER HONOUR: On the weekend?
MR DONAGHUE: On the weekend, even though she was the one who was best placed to know.
HER HONOUR: That may all be part of material to be put on evidence before me, as it were, in relation to an application for an extension of time. I accept what you say from the Bar table, but you will understand the dilemma.
MR DONAGHUE: I do, your Honour, and, in the end, if your Honour is satisfied that by raising grounds in a show cause application that may or may not be arguable, depending on what the evidence shows, if that is enough to satisfy the test in 486A, notwithstanding the fact that an application has already been made in the Federal Magistrates Court, then - - -
HER HONOUR: I certainly have not indicated that that would be enough and, of course, normally there is an affidavit in support that deals with evidentiary matters.
MR DONAGHUE: If it were enough, then I have difficulty.
HER HONOUR: Yes, I think you are right. Obviously to assert something is not enough.
MR DONAGHUE: Yes, but there is not much more here really, in my submission.
HER HONOUR: Well, there may or may not be, that is my problem.
MR DONAGHUE: Well, currently before the Court, because - - -
HER HONOUR: Currently before the Court, that is right.
MR DONAGHUE: - - - your Honour is being asked to prevent the removal that is scheduled for today.
HER HONOUR: I am a bit disinclined, I am bound to say, to summarily reject the application for an extension of time.
MR DONAGHUE: The other point I should make about that, your Honour, is there is not actually an application for an extension of time on foot and your Honour has no power under 486A until there is one and it has to be made in writing.
HER HONOUR: I have assumed that there would be some attention given to that and some attention given to the application for an order to show cause because I think it has been frankly conceded that there just has not been a lot of time to really pull the threads together. Now, that may or may not be right, you may want to dispute that, but I am in the position of trying to deal with what has come up to me as an urgent application for interim injunctive relief from a new legal representative.
MR DONAGHUE: It does, as your Honour will appreciate, put my client in a difficult position if a change in representative the day before is enough to get an injunction against a removal. It is difficult to remove people in circumstances if a new argument can be raised and that is enough. My instructor is reminding me that the legal representative was informed of the decision the day after it was made. I appreciate that there is a difficulty in that the new legal representatives are raising their argument only having just become involved, but, in my submission, ultimately the focus must be upon fairness to the applicant, not fairness to the applicant’s new legal team. The applicant is - - -
HER HONOUR: It is fairness to the applicant and to the defendants that will animate a decision taken in these urgent circumstances. I think I certainly understand the gist of the case put by you.
MR DONAGHUE: Yes. I have not gone to the detail of the grounds. In my submission, even on their face, having regard to the reasons, it is difficult to see that there is a serious question to be raised in relation to them.
HER HONOUR: It is a very low threshold, in a sense, is it not? It is not like the old Beecham test which on one view was a higher threshold.
MR DONAGHUE: Yes, I accept that. In my submission, I do not want to repeat myself really, the determinative issue should be the systemic issue around the circumstances in which, to use the language of 486A(2) - - -
HER HONOUR: The interests of the administration of justice.
MR DONAGHUE: - - - the interests of the administration of justice require this Court to act.
HER HONOUR: If I were minded to allow further time for the preparation of the application for an extension of time, would you be in a position to give an undertaking rather than - - -
MR DONAGHUE: Certainly not now. I would have to seek instructions.
HER HONOUR: No, I mean on the obtaining of instructions – when the alternative would be an injunction in order to allow the further time for the making of the application for an extension of time. I have just got this concern from the way in which I have been addressed, that what are put forward as grounds for relief under the application for an order to show cause have not been as fully considered by the new legal representation as what the new legal representatives would desire to do in the interests of the applicant, of course, in order to discharge their duties in relation to being urgently instructed by the applicant.
Now, I understand the points you make and I am not ignoring those in raising this with you, but it just strikes me that if this matter were to be the subject of a further grant of time, it would be on a very short timetable. Unfortunately the Court is sitting in Perth next week, but I am due back from Perth on Wednesday evening, which means the matter could be returned sometime on Thursday. So what I would have in mind is that the applicant have some further time, perhaps until Friday, something of that order, or even Monday, and that you have at least a day within which to respond. I mean, you may between the two of you be able to work out a very, very short timetable.
MR DONAGHUE: The matter would then be re-listed on the extension of time application?
HER HONOUR: That would be dealt with on that day, yes.
MR DONAGHUE: Your Honour, I will have to seek instructions, if your Honour would be - - -
HER HONOUR: Yes. Then it might involve the giving of an undertaking until 4.00 pm on that day, something of that sort.
MR DONAGHUE: Which would be likely to be Thursday of next week.
HER HONOUR: Thursday or Friday. Friday would suit me slightly better, but I am conscious of your arguments and I could make a special effort to meet Thursday if there was some urgent reason why Thursday was better than Friday.
MR DONAGHUE: There are a series of removals, I think, in relation to this group of 12 scheduled and I do not know what the timetable is, but again, I can seek instructions about that.
HER HONOUR: It then means the extension of time is dealt with on the basis that the new solicitor has had a proper period of time within which to put material before the Court in a non-urgent context.
MR DONAGHUE: If your Honour would be minded to allow us - - -
HER HONOUR: Would you like me to stand the matter down?
MR DONAGHUE: Yes, would you be prepared to do that?
HER HONOUR: Should I stand it down for 15 minutes?
MR DONAGHUE: Yes, 10 or 15 minutes, I am told, should be fine.
HER HONOUR: You can always make an inquiry with the court officer if you need more time.
MR DONAGHUE: Thank you, your Honour.
HER HONOUR: It may be some consent directions would be forthcoming.
MR DONAGHUE: In relation to filing materials?
HER HONOUR: Depending on the instructions. Because I have given you an indication of what I have in mind. Just before you do that, you have heard the debate. Do you have anything to proffer in relation to it?
MS KARAPANAGIOTIDIS: No, your Honour. I was going to take you to further evidence in the affidavits in terms of the hearing below, but in terms of your Honour’s proposal, I do not have anything to say, in my submission.
HER HONOUR: It means you make your application for an extension of time in a non-urgent context.
MS KARAPANAGIOTIDIS: Yes, that is right, your Honour.
HER HONOUR: From everything you have said, you are willing to pull all the stops out and be prepared within a short compass of time.
MS KARAPANAGIOTIDIS: Certainly.
HER HONOUR: I think that is appropriate, and the matter would be dealt with perhaps Friday of next week at 9.30.
MS KARAPANAGIOTIDIS: Yes, your Honour. We certainly are appreciative of the time.
HER HONOUR: I want the material then in time for the first defendant to be able to respond, to have at least 24 hours to respond.
MS KARAPANAGIOTIDIS: Yes, of course. Just in terms of – and it is something I can discuss with Dr Donaghue, but just in terms of the dates, I have a trial that is going for a week that is commencing on Monday the 12th. I am acting in this matter pro bono and I am confident – well, I am not confident actually – I can attempt to try and get somebody else to next appear, but it is more difficult because of the basis upon - - -
HER HONOUR: I could make it the Friday or the following Monday, but I am very concerned to keep a tolerably strict timetable in circumstances where there may be an undertaking not to take steps - - -
MS KARAPANAGIOTIDIS: I understand that, your Honour. I will speak with Dr Donaghue and if the Monday - - -
HER HONOUR: It obviously needs to be handled with a good deal of expedition.
MS KARAPANAGIOTIDIS: Yes.
HER HONOUR: Yes, very well. I will stand the matter down.
AT 1.16 PM SHORT ADJOURNMENT
UPON RESUMING AT 2.28 PM :
MR DONAGHUE: Your Honour, thank you for that time. I am sorry that it took considerably longer than I had expected. I was instructed before lunch that the Minister was personally going to make the decision on whether or not an undertaking could be offered in this case. It turned out over the adjournment that it was not possible to contact him, but he has apparently made his position clear previously and I am instructed by his office that I am not to grant the undertaking.
HER HONOUR: Yes, not to proffer the undertaking.
MR DONAGHUE: Not to proffer the undertaking, sorry, your Honour. I have been asked to make a number of brief submissions, if I might, further to what I have advanced this morning.
HER HONOUR: Yes.
MR DONAGHUE: The points that I have been asked to advance are, first, that in the circumstances or on the facts of this case the applicant has had a period of three months to commence the judicial review proceeding and the main reasons that he has advanced for not having done so – and your Honour could see these reasons in the application made in the Federal Magistrates Court – were twofold. One, that he had made a 417 application and, two, that he did not have funds. Both of those reasons have regularly been rejected by the courts as a foundation for granting extensions of time within which to bring proceedings.
Your Honour may be familiar with many cases in the Federal Court to that effect. There are also decisions in this Court along those lines. There is one I can hand up of his Honour Justice Hayne which would assist your Honour, a copy to my friend, a decision of his Honour from 2004. It is ex tempore reasons and I do not seek to gain a great deal from it other than to use it as an illustration of the fact that those reasons are not traditionally regarded by the courts as sufficient reason to grant an extension.
HER HONOUR: Is this in relation to an extension of time under the High Court Rules?
MR DONAGHUE: It was, yes.
HER HONOUR: That is to say, as distinct from section 486A.
MR DONAGHUE: That is correct. Until recently, as I recall, section 486 did not have capacity for an extension to be granted and that is, yes, it is the High Court Rules.
HER HONOUR: Which is now under subsection (2).
MR DONAGHUE: Yes, that is right. In the Federal Court context the time limit question I think arose in a variety of different ways, sometimes because of indirect application of the High Court Rules following remittal and sometimes I think under previous versions of Part 8 under a statutory time limit. But it is not at all uncommon for applicants to go down the pathway that this applicant did go down, that is, rather than seek judicial review to seek 417 intervention and that having failed to commence, and then to say that they are entitled to an extension for that reason and the courts have said two things. One, that there is an element of inconsistency in making the 417 application and then challenging the decision, and the other thing is that they have indicated that the making of that application does not explain why you do not in parallel pursue the judicial review point.
HER HONOUR: I suppose the complication here is the appointment of new solicitors. In a sense, this is effectively like an adjournment application, although it has been brought in the context of seeking urgent injunctive relief.
MR DONAGHUE: Yes, which really takes me to one of the other points I am asked to advance, which is that if it be the case that an injunction is to issue to prevent removal, for that reason, then the Minister will incur considerable costs in the fact that the removal scheduled for this afternoon cannot proceed. Also, this proceeding will identify a pathway by which removals under the Act can readily be frustrated by a change of lawyers and the raising of new grounds on the day or the day before removal in circumstances where the grounds themselves do not have to pass through the hurdle of establishing that on material before the Court that there is a serious question because time is needed in order to assemble the material to allow that question to be evaluated.
So that we submit that as things currently stand, the Court should not be satisfied that there is a serious question in relation to any of the grounds and that before my friends could demonstrate that, they would need to have put on material that would allow the Court to conclude, for example, that the puttage of matters during the hearing was inadequate. If I can just very briefly develop that submission by reference to the reasons, if your Honour has got them there as exhibit MN-1.
HER HONOUR: Yes, I have those, thank you.
MR DONAGHUE: If your Honour turns to page 15 under the heading “Section 424AA Warning”, you can see in paragraph 89 the Tribunal notes the original interview. I think your Honour mentioned that to my friend that this was important in the way the Tribunal ultimately determined the case.
HER HONOUR: Yes.
MR DONAGHUE: There was an acknowledgment that you were expected to give true and correct answers and that if there was inconsistencies between that original interview and later interviews, that might be used against him. The Tribunal then records in its reasons that it put various matters to him based on his responses at that interview and there are a number of points detailed there in paragraph 90. The change is referred to in paragraph 91, the significant development of his claims, including a few based on “political activities, and that people were said to have come to his home looking for him on suspicion of assisting the LTTE”.
The striking similarly with the claims of other applicants is noted and the substance of those claims is identified in paragraph 92. The details of another claim relating to Leslie Mendis being in hiding, whereas other people saying that the claims were made by other applicants about Leslie Mendis are identified. So that is not a vague inconsistency. It is saying some of you have said he is in hiding, some of you have said that he has gone to the police. The relevance of the information is identified in paragraph 94 and the contradictions – now, I think my friend seemed to suggest that paragraph 95 was a freestanding matter and that the contradictions that were being referred to there are not identified, but, in my submission, read fairly in context. That is a compendious reference to the matters that have been identified in the matter before.
HER HONOUR: I think I put something like that to your learned friend, yes.
MR DONAGHUE: Yes. So it is being said that this demonstrates a breach of – that there is a serious question as to a breach of 424A, but there are two fundamental problems with that submission. One, this Court in SZBYR has indicated that inconsistencies between evidence are not information of the kind with which that section is concerned and, two, even if this was information of a kind that 424A would apply to, the Tribunal says in its reasons, it put it all in the hearing pursuant to 424AA, it appears on the face of it that it was put in detail and there is no evidence at all, nothing, before the Court now to suggest that it was not in fact put or that the Tribunal relied upon any inconsistency not identified in those paragraphs of the reasons. In effect, what the Court is asked to do is to prevent the scheduled removal this afternoon so that they can explore whether they can make a good case under that heading.
HER HONOUR: There is this issue raised by the previous representative. She has now sworn evidence – I do not know what her position was before the Federal Magistrate – but she has now sworn evidence that she was representing the applicant and that the telephone transmission was extremely poor and the applicant did not get proper representation as a result of that. Now, as it was put this morning, whether that be correct or not is a matter that will be revealed, I assume, by the transcript of the tape or the tape itself. It is obviously a matter of – it is an arguable point, as it were, and, as I have put to you this morning, the serious question threshold is a fairly low threshold.
MR DONAGHUE: That point, your Honour - - -
HER HONOUR: In a sense, your points are all prophylactically made in relation to what has been foreshadowed and I understand that and they may well turn out to be very good points at the end of the day. It does not quite resolve the problem for today.
MR DONAGHUE: No, your Honour, save that unless your Honour is persuaded not just that there is a potential point there on the face of the legal ground raised, but that the facts of the case are such as to engage it.
HER HONOUR: Is there anything in these reasons which gives any indication of the problems with the telephone transmission or the - - -
MR DONAGHUE: No, there is not. Crucially, in my submission, in relation to that point, many of these points are points raised for the first time by the new legal team and it might be thought, well, a different mind has seen the issues, but the lawyer - - -
HER HONOUR: Or it might be that when they are better instructed, some of these points are not proceeded with.
MR DONAGHUE: That may be too - - -
HER HONOUR: That may be another possibility.
MR DONAGHUE: - - - because it is, in my submission, a truly striking state of affairs that the lawyer who was the representative in the hearing which is said to have been infected by these serious problems does not choose to commence judicial review proceedings but goes down 417 and then when at the eleventh hour judicial review proceedings are commenced, she acts in the proceedings and makes a complaint about the standard of interpretation at the hearing and says nothing at all about having been unable to participate because of the link.
This is not a point that can have come up only because of the change in legal representation, because she was uniquely placed to have raised it. In my submission, that point should not get the benefit of the other points where it might be said, well, new lawyers are entitled to see things in a different way. The points that the new lawyers have raised are points that if they were good points - - -
HER HONOUR: Points of substance.
MR DONAGHUE: If they were points of substance, they should have been put forward on an evidentiary foundation that would allow the Court to conclude that they were points of substance. On the face of the reasons, they are not because you just, in my submission, cannot read those reasons and conclude that there was a deficiency in the way that these matters were identified under - - -
HER HONOUR: You will understand that my opportunity to read these reasons has been limited. There has been the lunch hour, but, really, my first acquaintance with the correct set of reasons was at noon today.
MR DONAGHUE: Yes, when we handed them up. I do appreciate that, your Honour, and really I suppose where that brings me back to is my last point which is also, I think, the first point that I made when I stood up this afternoon, which is that - - -
HER HONOUR: The three month point really.
MR DONAGHUE: Well, it is the point that says that this Court is not and should not be forced to become a primary court for the resolution of migration matters and your Honour should not be, and other members of this Court, should not be placed in a position where on a routine basis you need to get across reasons like the 28-page reasons of the Tribunal in this case in order to - - -
HER HONOUR: It is only because of the removal this afternoon that these pressures are there. I understand what you say about not being able to
contact the Minister and it is regrettable obviously, but had there been some relief from the pressures of time, this Court would be in a different position.
MR DONAGHUE: Well, in a sense it would, your Honour, but in a sense it would be in the same position because the pressures of time arise because the applicant wants to have heard again the - - -
HER HONOUR: Yes, the application for an extension of time.
MR DONAGHUE: - - - application from four days ago. There was not a pressure – there was pressure of time that was accommodated in order to allow that hearing to occur, and it did occur, and the pressure of time is entirely as a result of the attempt to re-litigate that matter, which is in effect, to appeal, in effect, in everything but name a decision that plainly Parliament intended should not be appealed. So I am grateful for the time that the Court gave us in order to seek instructions, but, having received those instructions, I am asked to inform the Court that - - -
HER HONOUR: To press your opposition.
MR DONAGHUE: To press the opposition and to indicate that, absent an order of the Court, that the removal will proceed this afternoon.
HER HONOUR: Yes, thank you, Dr Donaghue.
MS KARAPANAGIOTIDIS: Your Honour, in reply, in terms of the time period, Dr Donaghue is right in relation to some of the reasons put forward and it is in Ms Perera’s affidavit in terms of the applicant being in immigration detention, not having funds and pursuing a 417 application. But coupled with that, your Honour, clearly the consideration of the Court in that respect is the administration of justice and what that - - -
HER HONOUR: Of course, there is force in Dr Donaghue’s submission that none of this has been raised until now, that is to say, the substantive grounds in the application for the order to show cause.
MS KARAPANAGIOTIDIS: Your Honour, as I understand it, an urgent application was made on Sunday. The solicitor appearing for three applicants on that day – I will not go into full detail because I do not seek to put evidence to your Honour from the Bar table – but certainly she attends and the only issue raised there, and it was very urgent and she was representing three people, the only issue there raised was interpretation. Upon receiving some further assistance, or the applicant receiving some further assistance, there has been an eye cast over the decision and clearly grounds, which we say are arguable, and in terms of the procedural matter and what transpired at the hearing and her ability to represent the applicant, she does depose to that in her affidavit. So there is certainly mention of that there and that is something that I heavily rely upon. Your Honour, I hear what has been said, but there is a distinction - - -
HER HONOUR: May I interrupt for a moment?
MS KARAPANAGIOTIDIS: Yes.
HER HONOUR: Are you proposing to put on further and better evidence in relation to the application for an extension of time?
MS KARAPANAGIOTIDIS: Yes, your Honour. With the opportunity, we would certainly – and we have tried to put this in place now. We have got somebody that has attended at the Refugee Review Tribunal in order to obtain a copy of the file and a copy of the tapes. So we would certainly, as a matter of priority, even with the short period of time, obtain a professional transcript of what occurred at the Tribunal hearing. So that would certainly go before the Court and that was our intention.
HER HONOUR: It may required some burning of the midnight oil to make sure everything is ready by 4.00 pm, say, next Tuesday, something of that order, so that this matter can be determined after a very short effluxion of time.
MS KARAPANAGIOTIDIS: Yes, your Honour.
HER HONOUR: In other words, I would not want to find that there are further applications for adjournments in all the circumstances of this case.
MS KARAPANAGIOTIDIS: No, your Honour. In the circumstances of this case, no, and we appreciate the urgency of it and if the Court extends us a short period, that is a valuable opportunity, as far as the applicant is concerned here. Ultimately, your Honour, that is the application, that a short period be permitted so that this can be ventilated and put before the Court in more detail and properly.
HER HONOUR: You are seeking an injunction. I take it there is no proffering of an undertaking as to damages?
MS KARAPANAGIOTIDIS: No, your Honour.
HER HONOUR: It can be noted that in the sense the injunction you are seeking bears an analogy with those situations where an interim injunction is sought to make sure that any decision the Court makes subsequently is not rendered nugatory. That would be the basis upon which you are seeking this interim relief.
MS KARAPANAGIOTIDIS: Yes, your Honour. We would seek interim relief. The matter will then come back before your Honour. The issue of the 35-day extension will be heard and the matter disposed of on that day and the injunction would run out.
HER HONOUR: Run out at 4.00 pm or something of that - - -
MS KARAPANAGIOTIDIS: That is right.
HER HONOUR: If you lose, costs may be awarded against your client.
MS KARAPANAGIOTIDIS: Yes, your Honour.
HER HONOUR: Yes. Anything further?
MS KARAPANAGIOTIDIS: No, your Honour.
HER HONOUR: Thank you. The orders I make are:
Nothing further?
MS KARAPANAGIOTIDIS: If your Honour pleases.
MR DONAGHUE: No, your Honour.
AT 2.55 PM THE MATTER WAS ADJOURNED
UNTIL, FRIDAY, 16 OCTOBER
2009
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