MZARK v Minister for Immigration and Border Protection & Anor [2016] HCATrans 128 (31 May 2016)

Last Updated: 2 June 2016

[2016] HCATrans 128

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M29 of 2016

B e t w e e n -

MZARK

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

Application for order to show cause

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 31 MAY 2016, AT 12.26 PM

Copyright in the High Court of Australia

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

MZARK appeared in person.

HIS HONOUR: Now, you have an interpreter appearing with you. Could I ask your name please?

THE INTERPRETER: Veena Bhandovia.

HIS HONOUR: Could you come forward please to be sworn?

THE INTERPRETER: Yes, okay.

VEENA BHANDOVIA, affirmed as interpreter:

HIS HONOUR: Thank you. Mr MZARK, you appear for yourself this morning?

MZARK (through interpreter): Yes.

HIS HONOUR: Thank you. You may be seated. Mr Rebikoff.

MR REBIKOFF: Your Honour, has your Honour received the first defendant’s outline of submissions?

HIS HONOUR: I have, thank you.

MR REBIKOFF: Yes. And the affidavit of my instructor, Zoe Leigh Kent, affirmed on - - -

HIS HONOUR: Yes, thank you.

MR REBIKOFF: Yes. Would it be convenient for me to address your Honour in relation to the matter first?

HIS HONOUR: Yes, please.

MR REBIKOFF: Your Honour, this is an application for an order to show cause dated 9 March 2016, seeking an order in the nature of certiorari to quash a decision of the Federal Court dated 24 February 2016 and an order in the nature of mandamus directed at the Minister, requiring the Minister to reconsider a decision of his delegate to refuse to grant the plaintiff a protection visa.

HIS HONOUR: Yes.

MR REBIKOFF: It is not entirely clear from the application whether it also seeks relief in relation to a decision of the then Refugee Review Tribunal on review of the delegate’s decision or the decision of the Federal Circuit Court on review of the Tribunal’s decision. However, insofar as relief is sought in relation to the decision of the delegate, the Tribunal or the Federal Circuit Court, the Minister’s position is that the application is out of time, having regard to the requirements of the Rules of this Court and also in the case of the delegate and the Tribunal the terms of section 486A of the Migration Act.

The Minister also contends it is not in the interests of the administration of justice to enlarge the time to enable the application to proceed in that respect, having regard to the failure to offer any adequate explanation for the delay, the failure to articulate any asserted error in any of those decisions and the fact that each decision has itself already been the subject of review the delegate’s decision by the Tribunal, the Tribunal’s decision by the Federal Circuit Court in the context of a show cause hearing under rule 44.12 of the Federal Circuit Court Rules and the Federal Circuit Court’s decision by the Federal Court in the context of an application for leave to appeal from the Federal Circuit Court’s decision.

In those circumstances, seeking to challenge those decisions again in this Court is an abuse of process of the kind discussed by Justice Gageler in Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at 678, and I have quoted the relevant passage at paragraph 24 of the submissions.

HIS HONOUR: Thank you.

MR REBIKOFF: Your Honour, insofar as the application seeks relief in relation to the decision of the Federal Court, the Minister’s position is that it fails to disclose any arguable basis for the relief claimed. The only ground on which relief is claimed in respect of the decision of the Federal Court is that the court has not considered the plaintiff’s situation. In effect, it invites this Court to reconsider the merits of the plaintiff’s claims for protection. That is not the role of this Court on judicial review.

In the absence of any claimed jurisdictional error on the part of the Federal Court, the application for an order to show cause does not disclose any arguable basis for the relief claimed. It therefore ought be dismissed under rule 25.03.3 of the Rules and the Minister also seeks an order that the plaintiff pay his costs of the application.

HIS HONOUR: Thank you, Mr Rebikoff. Now, Mr MZARK, take your time. Is there something you would like to say in response to that?

MZARK (through interpreter): I just want to say that today I have received all these papers and I need some more time.

HIS HONOUR: Could you repeat that please?

MZARK (through interpreter): Today I have received all these papers and I need more time.

HIS HONOUR: Which papers are they please?

MZARK (through interpreter): The submission, this submission, has been delivered today.

HIS HONOUR: Is that the outline of submission?

THE INTERPRETER: Yes.

HIS HONOUR: Thank you.

MZARK (through interpreter): So at page 3, point 9.3, my thing is that since six years I am here and I have not contacted my family in India. So at point 9.3 it is mentioned that they have accepted that the family may have certain.....so because since six years I am here, that is why they did not harm me; if I go there, they will harm me.

HIS HONOUR: Yes, I see. Madam Interpreter, is Mr MZARK need any more time to consider that document or is he in a position to deal with it now?

MZARK (through interpreter): Okay, I need more time because I want to go through all this what they have written and then I will come back.

HIS HONOUR: All right. I will adjourn until 2.15 to give you some time to consider it. Have you got a problem with that, Mr Rebikoff?

MR REBIKOFF: I do, your Honour.

HIS HONOUR: You are elsewhere?

MR REBIKOFF: I am.

HIS HONOUR: For the rest of the day?

MR REBIKOFF: Yes, unfortunately, your Honour.

HIS HONOUR: I take it Mr MZARK has not seen that submission before now?

MR REBIKOFF: Well, your Honour, it was sent to him on 24 May. He says that he did not – has not received it. It was given to him again outside of Court this morning and he has had some time before this morning’s hearing.

HIS HONOUR: What time is your next matter?

MR REBIKOFF: Your Honour, I am due in Echuca, of all places.

HIS HONOUR: Right. When are you back, Mr Rebikoff?

MR REBIKOFF: I am back tomorrow, your Honour. And I am back before your Honour on Friday.

HIS HONOUR: It sounds like it is turning into a big day next Friday. Midday on Friday, Mr Rebikoff?

MR REBIKOFF: Yes, your Honour, that is convenient.

HIS HONOUR: Now, Mr MZARK, I am going to give you some time to have a look at that document. That means I am going to adjourn the hearing until noon, 12 o’clock next Friday, 3 June.

MZARK: Thank you, sir.

HIS HONOUR: And I will be proceeding then.

MZARK: Thank you.

HIS HONOUR: Adjourn now until next Friday.

AT 12.37 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 3 JUNE 2016