Al Mamun v Minister for Immigration & Citizenship & Anor [2012] HCATrans 78 (22 March 2012)

Last Updated: 26 March 2012

[2012] HCATrans 078

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M172 of 2011

B e t w e e n -

ABDULLAH AL MAMUN

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for an order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 22 MARCH 2012, AT 9.45 AM

Copyright in the High Court of Australia

MR A. AL MAMUN appeared in person.

REDWAN RAHMAN, affirmed as interpreter.

HIS HONOUR: Mr Interpreter, perhaps if you could be good enough to tell Mr Al Mamun what is being said in the course of the application. Thank you. Mr Knowles.

MR R.C. KNOWLES: Yes, your Honour. If it pleases the Court, I appear for the first defendant in this matter. (instructed by Clayton Utz, Lawyers)

HIS HONOUR: There is a submitting appearance for the second defendant, is there not?

MR KNOWLES: Yes, there is, your Honour.

HIS HONOUR: Yes. Mr Knowles, this I think is your application, is it?

MR KNOWLES: Yes, your Honour. There are two summonses before the Court today but one of them is that which has been filed and served by the Minister and I do move on that summons filed on 15 February 2011 and rely on the affidavit of Ms Natasha Bosnjak of the same date in support of that summons and I would ask that that affidavit be taken as read, your Honour.

HIS HONOUR: Yes. Now, your application is, in effect, to have the application dismissed. Is that right?

MR KNOWLES: That is so, your Honour, and your Honour may have seen an outline of submissions which has been filed - - -

HIS HONOUR: Yes, just before we come to that, Mr Knowles. Mr Interpreter, would you tell Mr Al Mamun, please, that the Minister is asking me to dismiss his application. What I will do is I will hear first from the Minister’s counsel. After I have heard from the Minister’s counsel, Mr Al Mamun will have a chance to tell me his side of the case. So, if Mr Al Mamun would be good enough to take a seat and you next to him, Mr Interpreter, and listen to your interpretation of what Mr Knowles tells me, Mr Al Mamun will then have his chance to speak to me. But if you sit down, do. Now, Mr Knowles.

MR KNOWLES: Your Honour, I mentioned a moment ago that the Minister has filed and served an outline of submissions dated 20 March 2012.

HIS HONOUR: Yes, I have that.

MR KNOWLES: Has your Honour had an opportunity to consider those submissions?

HIS HONOUR: I have read them once, Mr Knowles.

MR KNOWLES: Thank you, your Honour, for that indication. In broad terms, the position taken by the Minister in this case is that the matter ought to be dismissed because firstly, the application for an order to show cause has been made outside applicable time limits, whether that be the time limits set by section 486A of the Migration Act 1958 or the time limits set out in the High Court Rules - - -

HIS HONOUR: I think you may need to back up a bit, Mr Knowles, and do it in pieces so that the interpreter has a chance to - - -

MR KNOWLES: It was a rather large chunk, I apologise.

HIS HONOUR: I think I would go back to the start. It is important that the interpreter have a chance.

MR KNOWLES: Yes, indeed. In broad terms, your Honour, the position set out in the outline of submissions is that the application made by the plaintiff for an order to show cause ought to be dismissed. That position is taken on the basis that the application for an order to show cause has been filed outside applicable time limits, whether those time limits are derived from section 486A of the Migration Act 1958 or from the High Court Rules.

The decision the subject of challenge in the plaintiff’s application for an order to show cause is the decision of the Migration Review Tribunal dated 27 January 2011. The plaintiff made his application for an order to show cause on 16 December 2011. It is, of course, possible for the Court to make an order enlarging or extending the time for the plaintiff to make his application to the High Court. However, in the particular circumstances of the present case, it is submitted by the Minister that such an order extending or enlarging time should not be made.

Principally, that submission rests on the conduct of the plaintiff after the handing down of the Tribunal’s decision and before the application was made to this Court. In that regard, Mr Al Mamun applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision. That application was made on 22 February 2011 and it was heard and determined by Federal Magistrate Riley on 22 July 2011. At that time her Honour dismissed the application. In the Minister’s submission, the matters dealt with by her Honour in the course of that proceeding are broadly similar to those which Mr Al Mamun would seek to agitate in his application to this Court.

The decision of Federal Magistrate Riley was then the subject of an appeal to the Federal Court. That appeal was filed with the Federal Court on 9 August 2011and on 24 November 2011 Justice Gray heard and determined the appeal. The appeal was dismissed with costs and it was dismissed due to Mr Al Mamun’s non-appearance at the hearing on that day.

Of course, it remains open to Mr Al Mamun to apply to the Federal Court if he so desired to set aside the judgment of Justice Gray and your Honour will have seen from the affidavit of Ms Bosnjak that correspondence from my instructing solicitors to Mr Al Mamun has informed him of the availability of that option.

Cases similar to the present case have previously come before this Court whereby there have been matters agitated in the High Court which have previously been the subject of proceedings in the Federal Magistrates Court or the Federal Court - - -

HIS HONOUR: I am generally familiar with those cases, Mr Knowles.

MR KNOWLES: Yes. They are certainly referred to in the Minister’s outline and I do not necessarily propose to go to them again but the broad principle is that, in my submission, where the person has applied outside of time to this Court but prior to doing so has been occupied with other litigation seeking similar relief in other courts, the relief sought in this Court should be refused. It is submitted in the alternative, your Honour, if the Court were not minded to not extend time that principles of preclusion apply in the present case - - -

HIS HONOUR: Well, there we are getting into very deep waters, Mr Knowles.

MR KNOWLES: I understand that, your Honour, and I emphasise that it is a submission that is made in the alternative - - -

HIS HONOUR: I understand that.

MR KNOWLES: - - - and otherwise that the proceeding is an abuse of process, given the history of this matter. Unless there is anything further, your Honour, that is all I would seek to say in oral submissions beyond what is already set out in the outline of submissions in writing.

HIS HONOUR: Thank you, Mr Knowles. Now, Mr Al Mamun - perhaps I think the easiest, Mr Interpreter, will be if you command the microphone and if you stand at the microphone and Mr Al Mamun is beside you we can then record. Your interpretation will be, I think, easier for our transcription people. If you stand at the – yes, thank you.

Mr Al Mamun, the Minister says that your application was made too late. The Minister says that the Act and the Rules of Court fix the times within which you are to apply and you applied outside those times and the Minister says that there is no sufficient reason to extend those times. This is your chance to answer those submissions.

THE INTERPRETER: He is asking this application - he take time to submit to the Court.

HIS HONOUR: He wants to adjourn today to enable him to have time to make submissions, is that what he is saying?

THE INTERPRETER: No. He is asking the – in relation to the applications because he is not clear with the application he made in delay to the Court.

HIS HONOUR: Yes. I think that he must at least tell me today what answer or what kind of answer he can make to the Minister’s arguments.

THE INTERPRETER: He is not clear about the Federal Court wishing to resubmit his application. So he is not clear about the Federal Court issues.

HIS HONOUR: Yes. The Minister says that he can ask the Federal Court to look again at his application. That is what the Minister says. I do not know whether that is right or wrong and whether he does is a matter for him. He would ordinarily have to explain why he was not there and he would ordinarily have to show that he had an arguable case, but those are not questions which I have to decide. The only question I have to decide is whether his application to this Court should be dismissed. So now is his chance to tell me why I should not dismiss his application to this Court.

MR AL MAMUN (through interpreter): Honourable member, for almost nine years I am facing so many problems with the laws and it ruined my life. My father expired four years ago and I could not visit my father at

the last moment. After the expiry of my father and the limitations of my work I could not support myself and I could not support my family, but I have mixed up myself with the Australian society.

If I am given time – if kindly I be given enough time for another few months to accumulate money then I can talk to a solicitor and request a solicitor who will fight for me. Then I can try to stay in Australia. This is a very good country. So I humbly request to you that if you give permission then I can one day stay in this country. Then I can get some more time to collect money and to – thank you for listening to me.

HIS HONOUR: Yes, thank you very much, Mr Al Mamun. Do sit down.

On 16 December 2011, the plaintiff filed an application for an order to show cause directed to the decision of the Migration Review Tribunal made on 27 January 2011. His application for an order to show cause in this Court was made beyond the times fixed by section 486A of the Migration Act 1958 (Cth) and the times fixed by the High Court Rules 2004 as the times within which applications for relief of the kind he sought should be made.

The Minister for Immigration and Citizenship now applies for orders terminating the proceedings by dismissing them as made out of time. The Minister accepts that there is power to extend the times fixed, both by the Act and by the rules, but submits that no such extension should be granted in this case. The central plank of the submissions made by the Minister is that no extension should be granted where, as in this case, the plaintiff has come to this Court only after first having sought judicial review of the disputed decision of the Migration Review Tribunal, first in the Federal Magistrates Court and then on appeal to the Federal Court of Australia.

As I have already noted, the decision of the Tribunal was made on 27 January 2011. On 22 February 2011, the plaintiff applied to the Federal Magistrates Court for judicial review of that decision, but on 22 July 2011 that application was dismissed.

On 9 August 2011, the plaintiff filed an appeal against the orders of the Federal Magistrates Court appealing to the Federal Court of Australia, but that appeal was subsequently dismissed for want of appearance by the plaintiff as appellant.

In answer to the Minister’s application for summary dismissal of the proceeding, the plaintiff submits that he should have further time (in the order of another few months) for him to accumulate some money so that he can get advice and obtain a solicitor, as he put it, to fight for him. In my opinion, it would not be right to allow the application to persist for that purpose. It would not be right to do so because I am of the opinion that no case is made or foreshadowed which would warrant granting any extension of the times fixed for the commencement of these proceedings.

It would not be in the interests of justice, either generally or in this particular case, that there be an extension of the times fixed, whether by the Act or by the rules for commencement of the proceedings. It would not be in the interests of justice to do so because in the intervening period the plaintiff has resorted to the judicial power of the Commonwealth and has not succeeded.

There is nothing to suggest that some new or different basis of challenge is now to be made beyond those grounds of challenge heard and determined first in the Federal Magistrates Court and then by default of appearance in the Federal Court of Australia.

Accordingly, in my opinion, the proceedings should be dismissed. There will be orders that the proceeding is dismissed with costs.

MR KNOWLES: If your Honour pleases.

HIS HONOUR: Yes. Mr Interpreter, thank you for your assistance. I will adjourn to allow the establishment of the video link to Adelaide.

AT 10.13 AM THE MATTER WAS CONCLUDED