WZANX v The Minister for Immigration & Citizenship & Anor [2009] HCATrans 266 (10 October 2009)

Last Updated: 27 October 2009

[2009] HCATrans 266

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P42 of 2009

B e t w e e n -

WZANX

Plaintiff

and

THE MINISTER FOR IMMIGRATION & CITIZENSHIP

First Defendant

THE REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for an order to show cause

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON SATURDAY, 10 OCTOBER 2009, AT 3.01 PM

Copyright in the High Court of Australia

MR S.E.J. PRINCE: I appear by telephone from Sydney for the plaintiff. (instructed by the plaintiff)

MR P.R. MACLIVER: If it please, your Honour, I appear for the Minister in this proceeding. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Prince.

MR PRINCE: Thank you, your Honour. Can I first thank the Court for arranging this hearing at such short notice?

HIS HONOUR: Yes.

MR PRINCE: The reason for the application is that my client is due to be removed from Australia at 3.55 Perth time from Perth Airport. I understand that Singapore Airlines have a deadline of 3.15 before he needs to be taken off the plane or arrangements need to be made.

HIS HONOUR: All right, well, let me ask you immediately the question, is this matter covered by section 486A of the Migration Act?

MR PRINCE: It may be, but to the extent that it is – would your Honour just give me a moment while I call that up?

HIS HONOUR: Yes. While you are doing that perhaps I can ask Mr Macliver? Mr Macliver, do you contend the matter is covered by 486A?

MR MACLIVER: The Minister does, your Honour, so that, in effect, requires – like before the Federal Magistrates Court yesterday – that this Court also has no jurisdiction unless it grants an extension of time.

HIS HONOUR: The extension of time – the decision was given on 13 July, was it not?

MR PRINCE: In July. It was, your Honour, yes.

HIS HONOUR: Is that not 89 days until today?

MR PRINCE: It is, your Honour, and I would have to apply for an extension of time.

HIS HONOUR: Is not the maximum extension that can be given 84 days if you add the 28 and the 56?

MR PRINCE: To the extent that section 486A seeks to impose an absolute time period on the Court for receiving applications under section 75(v) of the Constitution, it would be my submission that it is invalid.

HIS HONOUR: Is there any authority directly on that point?

MR PRINCE: When the previous version of section 486A was in place it imposed a prohibition on the Court from dealing in a manner by reference to time, and that was held to be invalid, I believe, in Bodruddaza.

HIS HONOUR: Mr Macliver? I thought this was considered in one of the cases associated with S157, was it not?

MR MACLIVER: Yes, your Honour, I am not sure that there is a time limit any more, your Honour. I understand that sections 476 and 486A were amended.

HIS HONOUR: Yes, I am looking at 486A(1A) which allows an extension of a:

28 day period by up to 56 days –

and then 486A(2):

Except as provided by subsection (1A), the High Court must not make an order allowing –

et cetera.

MR PRINCE: I think that is an old version of the section, your Honour.

MR MACLIVER: Yes.

HIS HONOUR: Is it? All right.

MR PRINCE: Yes.

MR MACLIVER: I think it is, your Honour.

MR PRINCE: That, I think, was the section that may have been found to be invalid in Bodruddaza’s Case.

HIS HONOUR: All right. Okay.

MR MACLIVER: Yes.

HIS HONOUR: Well, let us assume that we have an arguable case in relation to time.

MR PRINCE: Yes, your Honour.

MR MACLIVER: Yes.

HIS HONOUR: Yes, all right. Now, then you raised exactly the same points before the Tribunal, did you not?

MR PRINCE: Before the Federal Magistrates Court, your Honour.

HIS HONOUR: Before the Federal Magistrates Court on review of the Tribunal?

MR PRINCE: I do not know, your Honour, I was not there. Similar grounds were put before the federal magistrate in a handwritten document, but they were not expressed in the way they are expressed in this application. The WAJR point was not run before the federal magistrate. As I said, I was not there. The applicant was unrepresented, although I understand he had an interpreter and he appeared over the phone from the Perth Immigration Detention Centre.

So, your Honour will now see that there is an argument that any deficiencies in terms of the very technical arguments under 424A, 424AA and 425 are answered by an alternative submission that to the extent that those sections do not apply technically and perforce to the circumstances of the case that the rules of procedural fairness would apply in the general principles as expressed in Kioa.

HIS HONOUR: This particular applicant received the decision from the Tribunal dated 13 July and chose to proceed by way of section 417 - - -

MR PRINCE: Yes, that is right, your Honour.

HIS HONOUR: - - - and did not bring an application for judicial review until 9 October, which is yesterday, of the Tribunal decision. Why should I now entertain an application of that kind?

MR PRINCE: I am sorry, your Honour. As I understand it, he tried to make an application to the Federal Magistrates Court not last Friday but the Friday before. That had some procedural deficiencies. As I understand it, a form had not been signed or witnessed, and that was sent back to him in order to remedy – he was seeking some advice from a Legal Aid solicitor during that period of time, and that advice, as I understand it, did not arrive until Thursday last week, and then it became clear that that solicitor was not going to act for him.

He then, as I understand it, made some contact with some of the refugee support groups that exist. They approached me yesterday afternoon. I tried to obtain a copy of the Tribunal decision, which I did late yesterday afternoon, and did my best to try to provide the grounds that I identified after a quick review of the decision.

HIS HONOUR: He was represented at the time he was advised of the decision, I think, was he not?

MR PRINCE: He was represented by a migration agent, who is also a solicitor, your Honour - - -

HIS HONOUR: Yes.

MR PRINCE: - - - and who was partaking in this scheme that the Commonwealth has in place for the providing of advice. As I understand it, that scheme does not extend to the provision of legal advice in respect of judicial review.

HIS HONOUR: He took no steps in relation to judicial review until, according to what you have just told me, a week or so ago.

MR PRINCE: That is right, your Honour.

HIS HONOUR: Yes. All right, well, you had better tell me now why I should grant interlocutory relief, or interim relief.

MR PRINCE: Thank you, your Honour, because there are substantive – in my submission, and for the reasons in the application to show cause – there are substantive grounds upon which it could be said that there is a reasonably arguable case of jurisdictional error in the Tribunal’s decision. True it is that he has not acted with the sort of alacrity that one would hope for, but the consequences of him being removed if he is right and he has not been accorded protection of the law in terms of the determination of his application are very grave and serious, and irrevocable, and once he is removed any proceedings which would review or consider whether or not he has been given an adequate hearing or been dealt with according to law would be futile.

So the balance of convenience is very, very strongly in favour, in my submission, of at least providing a short period of time in which his case could be developed. He now has legal representation, and I am prepared to continue to act in the proceedings on a pro bono basis if the interim relief is granted. Some of the matters that are raised in the amended application, your Honour, are really quite substantive matters which he should have had a chance to deal with at the Tribunal.

HIS HONOUR: The Tribunal made no finding in relation to the possible explanation for the photograph in the security section of the airport, did it? It simply put that to him, but then disbelieved his account of it?

MR PRINCE: It put it to him, and I cannot find any express or explicit factual finding on it. It seems to - - -

HIS HONOUR: It has just disbelieved him on a range of matters and found he was not a credible witness.

MR PRINCE: Yes, it made quite devastating findings about his credibility, and not only found that he was not credible but that he had fabricated his claims, concocted evidence, to achieve an immigration outcome. In those sorts of circumstances where such serious findings are being made about general issues of credibility, in my submission, the fact that that issue is raised with him and warrants a mention in the decision, even if it is not ultimately tidied up, one cannot exclude the possibility that it has been part of the mix in reaching findings about credibility. I mean, certainly an allegation about being wanted for murder is a very serious matter.

HIS HONOUR: Yes, but there is no finding based on it. All right, I will just hear briefly from Mr Macliver. Yes, Mr Macliver.

MR MACLIVER: Yes, your Honour. The Minister would oppose the grant of an injunction, your Honour, essentially for three reasons. One, the applicant’s delay is unexplained in the sense that choosing an option to seek ministerial intervention under section 417 is not a sufficient justification for delay, and I would refer your Honour to decisions which I believe you have been provided with of Das v Minister for Immigration, a decision of Justice Sundberg, and comments of a similar effect by his Honour Justice Hayne in.....I think.

HIS HONOUR: Yes.

MR MACLIVER: Secondly, your Honour, there was an application for an extension of time before the Federal Magistrates Court. That was rejected. The provisions of the Migration Act provide that there is no appeal from such a decision, either to the Federal Court or to this Court, and in effect - - -

HIS HONOUR: Well, we are not dealing with an appeal here.

MR MACLIVER: I know, but in effect that would be – it is circumventing the clear policy intention that there should not be appeal if an applicant then can simply come before this Court and seek an extension of time from this Court. Thirdly, your Honour, we would submit that the grounds raised in this application do not have sufficient prospects of success or merits to warrant the granting of an injunction. The Tribunal’s decision was based, as my learned friend has said, on credibility findings. The Tribunal went into quite some detail in its reasons for decision as to why it reached its findings in relation to various inconsistencies, and your Honour will have seen from the Tribunal’s reasons for decision that those various inconsistencies were put to the applicant, both at the Tribunal hearing and subsequently in a section 424A letter.

So the fact that the Tribunal did not accept the evidence and reached those credibility findings is not, we would say, to give rise to any ground, substantive ground for review with any prospects of success. In relation to section 424A and 424AA, your Honour, those sections in relation to the allegation that the applicant was wanted for murder, those sections are not relevant, we would submit, because the Tribunal’s reasons made clear, your Honour, that that information that was put or given to it by the Department and which it put to the applicant in the hearing simply did not form the reason or part of the reason for the Tribunal’s decision.

So we submit that the grounds as formulated in the present application do not have sufficient prospect of success to warrant the granting of an injunction.

HIS HONOUR: Yes, all right. Mr Prince, you want to say anything in reply?

MR PRINCE: Just shortly, your Honour.

HIS HONOUR: Yes.

MR PRINCE: First, in respect of the authorities that my friend relies upon, they deal with much longer periods of time and with the Rules of the Court which used to provide for a six-month time period to bring applications for constitutional writs. Secondly, in terms of the current scheme of the Act, there is an ability for this Court to grant an extension of time. In terms of the substantive application and what my friend says about it, the question of whether or not the murder allegation formed part of the reasons for the decision might be relevant to the question of section 424A and the applicability of that section, but whether or not that necessarily excludes the prospect of raising such a serious allegation with an applicant during the course of the hearing without notice or particularisation was a fair process or a fair way of conducting the hearing.

Finally, in terms of the – and that is part of the first part of the claim, and none of these arguments, as I understand it, were articulated to the federal magistrate by the applicant because he was really not in a position to do so, being unrepresented as he was, and these being fairly complex issues of administrative law.

HIS HONOUR: Mr Prince, do you accept the chronology as set out in Mr Corbould’s affidavit?

MR PRINCE: I do not know that I can, your Honour. I cannot really comment on it because, firstly, I do not feel comfortable that I have been able to really get across it in the short time that I have had to look at it, but I cannot contradict it, but I would - - -

HIS HONOUR: It seems to be a matter of record supported by exhibits to the affidavit.

MR PRINCE: Well, that is so. Can I just say this in respect of that chronology, your Honour, accepting it as it is for the moment and for the purposes of the argument, that the fact that he made an application 417, 48B, it is true that that is not in itself a basis for extending time, and I am not suggesting that it is, but rather it must clearly be a relevant factor in terms of the general discretion to extend time; whether it is outweighed by other matters or not I suppose is another matter.

In my submission, it is appropriate for applicants to try to avoid troubling the courts with applications for judicial review based on technical and narrow legal grounds in circumstances where there is a general discretion in the Minister and the public interest, and there are circumstances which the applicant believes would allow things to be best dealt with administratively. The principle in Boral v Magill has always been a principle of restraint, and that is that people should exercise all administrative avenues before troubling the court with judicial review.

So, in my submission, it is entirely appropriate that he has followed the course that he has. It is unfortunate that it has not been successful, and this really is his only chance, and he is only troubling the Court because the consequences are just so grave, so far as he is concerned, if he is removed, and all he wants is an opportunity to have an orderly case.

HIS HONOUR: It would have been possible to have brought these proceedings, I suppose, by way of an exercise of the appellate jurisdiction, or would it not, of the Federal Court, or is that blocked in relation - - -

MR PRINCE: That is – sorry, your Honour, I did not mean to cut across you.

HIS HONOUR: No, it is all right.

MR PRINCE: That is blocked by section 476A, I believe.

HIS HONOUR: This is in relation to extension of time decisions?

MR PRINCE: Quite, that is why we have made the application to this Court.

HIS HONOUR: Yes, all right. Thank you, Mr Prince.

This application for constitutional writs against the Minister for Immigration and Citizenship and the Refugee Review Tribunal was filed this afternoon in the Perth Registry of the High Court and an urgent hearing arranged today in Perth on the application for interlocutory relief to restrain the first defendant, the Minister for Immigration and Citizenship, from taking steps to deport the plaintiff from Australia and back to Sri Lanka.

The plaintiff is a citizen of Sri Lanka who arrived in Australia on 27 November 2008 by boat. He applied for a protection visa on 18 January 2009 and that was refused by a delegate of the Minister on 26 March 2009. The plaintiff then applied to the Refugee Review Tribunal on 30 March and on 13 July the Tribunal affirmed the decision not to grant a protection visa to the plaintiff. A copy of the reasons for the Tribunal decision indicated that the Tribunal made comprehensive findings adverse to the credibility of the plaintiff in refusing his application.

Following the receipt of the Tribunal decision the applicant, through his migration agents, made application to the Minister requesting that he exercise his discretion in favour of the plaintiff under section 417 of the Migration Act 1958. Meetings with officers of the Department and the plaintiff followed and on 23 September the Minister declined to consider exercising his section 417 power in the plaintiff’s case.

Officers of the Department made arrangements for his removal from Australia and on 30 September he was notified of his intended removal on 10 October. He again requested that the Minister exercise his discretion to intervene under sections 48B or 417 of the Act on 3 October 2009 and on 9 October 2009, that is to say, yesterday, he was given a letter advising that request for the ministerial intervention was refused without being referred to the Minister.

Yesterday, on 9 October, he commenced proceedings in the Federal Magistrates Court of Australia to review the Tribunal decision. He sought an extension of time for making the application and interlocutory orders to stay the removal. He was not represented but was heard through an interpreter by Federal Magistrate Lucev yesterday who made orders dismissing that application with costs. He then filed the application which is now before this Court invoking its original jurisdiction under section 75(v) of the Constitution and setting out, in that application, various grounds upon which that relief ought to be granted based upon the decision of the Tribunal and errors the Tribunal is said to have made in reaching that decision.

There is a question about the availability of an extension of time and I assume, for the purposes of this application, that an application for an extension of time would be available if granted in the Court’s discretion. The question is whether or not the interlocutory relief should be granted. Having regard to the history of this matter, the plaintiff’s decision at a time when he was represented to pursue an alternative path through section 417 of the Migration Act, the consideration of judicial review proceedings in the Federal Magistrates Court yesterday and the refusal of relief in relation to those proceedings, and also having regard to the nature of the Tribunal’s findings adverse to the plaintiff, I do not consider that his application to this Court would have sufficient chances of success, particularly having regard to the procedural history to which I have referred, to warrant the granting of interlocutory relief. Interlocutory relief will be refused.

Thank you, Mr Prince.

MR PRINCE: Thank you, your Honour.

HIS HONOUR: Thank you, Mr Macliver. I am sorry, before we go, I suppose I should say something about the further – I will simply stand this matter over for further directions and perhaps there can be some discussion between Mr Prince and Mr Macliver as to what should be done in relation to it.

MR PRINCE: If the Court pleases.

AT 3.25 PM THE MATTER WAS ADJOURNED