Plaintiff S36 of 2016 v Minister for Immigration and Border Protection [2016] HCATrans 157 (13 July 2016)

Last Updated: 20 July 2016

[2016] HCATrans 157

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S36 of 2016

B e t w e e n -

PLAINTIFF S36 OF 2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Application for order to show cause

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 13 JULY 2016, AT 9.31 AM

Copyright in the High Court of Australia

PLAINTIFF S36 OF 2016 appeared in person.

MR A. MARKUS: If your Honour pleases, I appear for the defendant who is the applicant to the summons. (instructed by Australian Government Solicitor)

HER HONOUR: Yes, Mr Markus.

MR MARKUS: Thank you, your Honour. Your Honour, I seek to formally move on the summons filed on behalf of the defendant on 30 May 2016.

HER HONOUR: Yes.

MR MARKUS: I seek to read two of the three affidavits affirmed by me in support of the summons. The two affidavits I seek to read, your Honour, were affirmed and filed on 30 May and 5 July respectively. The third affidavit, your Honour, is only an affidavit of service.

HER HONOUR: Yes, thank you, Mr Markus. Mr Markus, before we go further, there is a reference in the Court file to the arrangements for a Tongan interpreter to be present. I might just inquire whether there is such a person in Court.

THE INTERPRETER: I am.

HER HONOUR: Sir, do you require the assistance of a Tongan interpreter?

THE INTERPRETER: Yes, your Honour, he would like me to – translate as well.

WILLIAM TUBOU, affirmed as interpreter.

HER HONOUR: Thank you, sir. Just before we resume, Mr Markus, Mr Interpreter, would you explain to the plaintiff that Mr Markus who appears for the Minister is seeking the relief claimed in the summons, that is, Mr Markus is seeking to have the proceedings dismissed on the basis that the plaintiff has failed to prosecute the proceedings in accordance with the Rules. Mr Interpreter, would you also explain that Mr Markus seeks to rely on two affidavits: the first being an affidavit that he swore on 30 May and the second, the affidavit sworn by Mr Markus on 5 July? Does the plaintiff have copies of those affidavits?

PLAINTIFF S36 OF 2016 (through interpreter): Yes, your Honour.

HER HONOUR: Does the plaintiff object to any part of either of those affidavits?

PLAINTIFF S36 OF 2016 (through interpreter): No.

HER HONOUR: Yes, thank you. You may take those affidavits as read, Mr Markus.

MR MARKUS: Thank you, your Honour.

HER HONOUR: Mr Markus, may I ask – a housekeeping matter. I see that the proceedings today have been anonymised and that the plaintiff is described as Plaintiff S36 of 2016. On the material before me it is not clear why the Act would require the plaintiff’s name to not be published.

MR MARKUS: Well, your Honour, the Act does not require that. Section 91X does not apply to this proceeding.

HER HONOUR: Yes.

MR MARKUS: I cannot tell your Honour why it has been anonymised.

HER HONOUR: But there is no reason for me not to treat the plaintiff with the usual courtesy of calling him by his name?

MR MARKUS: No, your Honour.

HER HONOUR: Very well, thank you, Mr Markus. Do go on.

MR MARKUS: Thank you, your Honour. Your Honour, I can be brief. Your Honour would be aware that this proceeding was commenced on 3 February by way of an application for an order to show cause. Without going into any great detail your Honour would see that the plaintiff seeks to challenge the defendant’s decision not to consider the exercise of the power available to him under section 351 of the Migration Act.

HER HONOUR: Yes, and it would seem that is the only basis of the relief that is claimed, that is, the application is directed entirely to the personal decision made by the Minister on 19 January 2016 not to intervene. Is that - - -

MR MARKUS: Your Honour, I filed the second affidavit – the 5 July affidavit - to clarify why there were two letters. Your Honour would see – the plaintiff’s affidavit has not been read but your Honour would have seen that there were two letters exhibited to that affidavit, both dated 28 January 2016. The first one of those letters refers to the Minister’s decision to decline to consider exercising the section 351 power made on 19 January. The second letter refers to the fact that the Department initiated a further ministerial intervention request in light of some additional documents which had been received by the Department on that day.

HER HONOUR: Yes.

MR MARKUS: That is on the day that the Minister actually decided not to consider the exercise of the power vested in him and the decision was made not to defer that second request to the Minister. So in theory there are two decisions made - - -

HER HONOUR: I understand that, but when one turns to the application for an order to show cause, the relief claimed is entirely with respect to the Minister’s personal decision, albeit in paragraph 4 leave is sought to file an amended application and I will raise with the plaintiff what is proposed in that respect. But looking at the material that is before the Court, in terms of the application, it seems to be entirely directed to the Minister’s decision.

MR MARKUS: That is correct, your Honour.

HER HONOUR: Yes. Now, perhaps before I take up further matters with you, Mr Markus, we might regularise the position by just – I will inquire of the plaintiff if he does propose to rely on his affidavit and any other material. Mr Tivoli, you swore an affidavit in support of the application that you make on 2 February 2016. Do you wish me to take that affidavit into account in determining the summons brought by the Minister?

PLAINTIFF S36 OF 2016 (through interpreter): Yes, your Honour.

HER HONOUR: Yes, do you have any objection to any part of the affidavit, Mr Markus?

MR MARKUS: Your Honour, I just noted paragraphs 8 and 9 are not in the nature of evidence, but I will leave it at that.

HER HONOUR: Yes, thank you, Mr Markus. Well, now, Mr Markus, the order that you seek is dismissal. You seek it for want of prosecution. I am mindful that there has been substantial non-compliance with the Rules and that that non-compliance is in the face of the Minister’s repeated advice to the plaintiff of the steps that were necessary to take to regularise the

proceedings. Nonetheless, what would be the basis for dismissing for want of prosecution in circumstances in which the plaintiff is unrepresented and presently in immigration detention? I mean, I raise with you - - -

MR MARKUS: Your Honour, ultimately my client is asking your Honour to exercise a discretionary power.

HER HONOUR: Yes.

MR MARKUS: I understand the fact that the plaintiff is unrepresented is a relevant consideration. I have not sought to develop any detailed arguments about the merits of the application but if your Honour is asking me to do that I can briefly address that issue.

HER HONOUR: Well, Mr Markus, perhaps before you do that I might take a matter up with the plaintiff and then I will come back to you.

MR MARKUS: Yes, thank you, your Honour.

HER HONOUR: Mr Tivoli, you have brought proceedings in this Court claiming certain orders in the original jurisdiction of the Court under provisions of the Court’s Rules. On two occasions the Minister has brought to your attention that the Court’s Rules required you to take certain steps. Briefly, those steps required you to file a summons seeking directions about the future conduct of the proceedings and containing submissions identifying why the proceedings should not be remitted to another court and what steps should be taken, either to refer the matter to the Full Court for consideration or otherwise.

Now, despite that advice, you have not taken any step in the proceedings. The Minister invites the Court, in the exercise of inherent powers, to dismiss your proceedings because you have failed to do anything to bring them forward in accordance with the Rules. What do you say to that?

PLAINTIFF S36 OF 2016 (through interpreter): Your Honour, if I can understand, are you referring to me directly to speak with the support of my children?

HER HONOUR: I am asking you to tell me anything that you wish to as to why you have failed to act at the request of the Minister to take steps in the proceedings under the Court’s Rules.

PLAINTIFF S36 OF 2016 (through interpreter): Your Honour, as you can see I do not have any representative. It is going to be a long story but my kids have already approached a counsellor to represent myself which they paid but he did not show up at the first case. So he is not here too. He did also not show up with my children at the date of the case.

HER HONOUR: I am sorry. You say that your children have arranged, or were seeking to arrange for a lawyer to assist you and what happened with that request?

PLAINTIFF S36 OF 2016 (through interpreter): Yes, for the first case, your Honour.

HER HONOUR: That is the case before the Administrative Appeals Tribunal, was it?

PLAINTIFF S36 OF 2016 (through interpreter): That is right, your Honour.

HER HONOUR: But I am concerned now with the case in this Court. You have been asked by the Minister to take steps to conform with the Court’s Rules relating to this case. Do you have any reason for not doing that?

PLAINTIFF S36 OF 2016 (through interpreter): I was confused, your Honour, and I did not know what to do. As you understand it I am in a remand centre and I did not have access to more assistance.

HER HONOUR: Did someone assist you with the preparation of this application that you filed in February of this year in this Court?

PLAINTIFF S36 OF 2016 (through interpreter): In this case, your Honour?

HER HONOUR: Yes.

PLAINTIFF S36 OF 2016 (through interpreter): Just a good friend at the remand centre.

HER HONOUR: Did you seek the assistance of that good friend when the Minister drew to your attention the need to take some further steps in the proceedings?

PLAINTIFF S36 OF 2016 (through interpreter): No, your Honour, he was only assisting me in filling out forms.

HER HONOUR: You understand that the Minister is seeking to have your application dismissed today?

PLAINTIFF S36 OF 2016 (through interpreter): Yes.

HER HONOUR: Mr Markus, notwithstanding the substantial non-compliance with the Rules, in the circumstances in which the plaintiff is without the benefit of any legal assistance and is in detention, I am by no means sure that it is appropriate, notwithstanding a delay of five months, to take the view that there is the sort of non-compliance with the Rules as would justify the dismissal of proceedings for want of prosecution. As I understand it from something you said a few moments ago, the real burden of the Minister’s application goes to the merits of the relief that is claimed and it does seem to me perhaps appropriate that you address that.

MR MARKUS: Yes, thank you. Your Honour, can I just do that by reference to two judgments? I have not given your Honour a list of authorities but perhaps I can hand them up.

HER HONOUR: Yes.

MR MARKUS: Your Honour, the two judgments I have handed up are judgments of this Court: first in the proceeding - in Minister for Immigration for Multicultural and Indigenous Affairs & Anor; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 and the second judgment is the judgment of this Court in the matter of Plaintiff S10/2011 v Minister for Immigration and Citizenship & Anor [2012] HCA 31; (2012) 246 CLR 636. I think, your Honour, that – again, I can be very brief. If your Honour goes to page 2 of the application your Honour will see that the relief sought by the plaintiff is in the nature of a writ of prohibition, a writ of certiorari and a writ of mandamus.

HER HONOUR: Yes.

MR MARKUS: If your Honour goes to the judgment in Applicants S134, if I could take your Honour first to the judgments of the Chief Justice and Justices McHugh, Gummow, Hayne and Callinan - - -

HER HONOUR: Is this to establish that the power conferred under section 351 is not susceptible to mandamus because there is no correlative duty?

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

HER HONOUR: Yes, that proposition I think is clear, not only from the cases that you have taken me to but that proposition equally in the Offshore Processing Case.

MR MARKUS: Yes, your Honour. Your Honour, just for reference, the two paragraphs that I wanted to refer are in particular paragraph 48 of the judgment I referred to and then in the judgment of Justices Gaudron and Kirby at paragraphs 99 and 100. Your Honour, that in substance is sufficient to deal with the merit of the application. I handed up to your Honour Plaintiff S10 simply in support of the proposition that to the extent that the plaintiff asserts that he has been denied procedural fairness, Plaintiff S10 suggests that in fact there is no procedural fairness obligation of the type of matters that this proceeding involves. Your Honour, that in substance is my client’s position.

HER HONOUR: I understand. Can I raise a matter with you, Mr Markus?

MR MARKUS: Yes.

HER HONOUR: When one turns to the grounds on which the relief is claimed, the complaint seems to be in relation to the failure to comply with the ministerial guidelines under sections 48A and 48B. Again, having regard to the history of the matter as I apprehend it based on the material annexed to your affidavit, neither of those provisions is of relevance. Is that your submission?

MR MARKUS: No, your Honour. That is quite correct. Section 351 was the power that was sought to be exercised and because there was a reference to the guidelines that is the reason I put on the second affidavit in a sense because that really did not arise in the context of the decision made personally by the Minister not to consider the exercise of his power, but it did potentially arise - not those guidelines but different guidelines potentially did arise in the context of the decision not to refer the Department-initiated process to the Minister because the guidelines have not been met. But your Honour is quite correct. The reference to sections 48A and 48B are misconceived.

HER HONOUR: Yes, and the Minister’s application is for dismissal of the application for an order to show cause under the Rules – under rule 25.03.3.

MR MARKUS: Yes, your Honour. I put it slightly differently - - -

HER HONOUR: That is what I am wanting to - - -

MR MARKUS: The reason I have done what I have done, your Honour, or my client has done what he has done is that there has been substantial non-compliance with the Rules and we say that taking into account the merits, even though in the absence of those considerations your Honour might not be minded to dismiss the matter for non-compliance, but taking into account the lack of merit in the application your Honour would exercise the relevant power. So that is the way we sought to put it.

HER HONOUR: I understand.

MR MARKUS: The alternative is simply to say that your Honour ought to dismiss it under that rule. I did not - - -

HER HONOUR: It is just when one looks at the scheme of Part 25, by contrast with the scheme of Part 27 which deals in terms with dismissal for want of prosecution, one sees that complying with the Rules a plaintiff is to file the summons for directions and the outline of submissions and the Rules contemplate that there may be then an early determination if it is appropriate of whether the application is to be dismissed or the other alternatives for which rule 25.03.3 provides.

Where a plaintiff files an application and then fails to comply with the requirements to bring matters on by the summons for directions, you contend it is open to dismiss the proceedings, taking into account the discretionary considerations relating to want of prosecution which must be an inherent power of the Court and having regard to the asserted absence of an arguable basis for the relief that is claimed. That is the way - - -

MR MARKUS: Yes, your Honour. That is the way we put it.

HER HONOUR: Yes, I understand. All right, I might take matters up with Mr Tivoli – Mr Markus, one further matter. Ordinarily, one considers with an application for an order to show cause the question of remittal. Here, am I right in thinking that there is not only no jurisdiction in the Federal Court of Australia to entertain the application, but no jurisdiction in the Federal Circuit Court because this is a privative clause decision under section 474(7)?

MR MARKUS: That is correct, your Honour. Section 351 is one of those decisions mentioned in section 474(7) and section 476(2)(d) provides that the Federal Circuit Court has no jurisdiction in relation to decisions or privative clause decisions or purported privative clause decisions mentioned in section 474(7).

HER HONOUR: Yes, thank you, Mr Markus.

MR MARKUS: Thank you, your Honour.

HER HONOUR: Mr Tivoli, the Minister submits that your application should be dismissed because, firstly, you have not done anything to bring

the application before the Court in accordance with the Rules. You have failed to comply with the Rules. That is his first point. His second point is, accepting that you may have had some difficulties in complying with the Court Rules because you are in detention nonetheless I should make an order dismissing the proceedings because the proceedings are themselves misconceived. They claim relief which on established authority the Court would not grant, that is the application fails to disclose any arguable basis for making the orders that you seek. Do you understand that?

PLAINTIFF S36 OF 2016 (through interpreter): Yes, your Honour.

HER HONOUR: Is there anything you want to say to me about why I should refuse to dismiss the proceedings and, in that regard, I draw your attention to the fact that you seek leave to amend your application with further particulars. What, if anything, did you have in mind in that respect?

PLAINTIFF S36 OF 2016 (through interpreter): No, your Honour. I think that you are right. It is better to dismiss my case.

HER HONOUR: Yes, thank you, Mr Tivoli.

This is a summons filed by the defendant, the Minister for Immigration and Border Protection (“the Minister”), by which the Minister claims an order dismissing the proceedings for want of prosecution.

On 3 February 2016, the plaintiff commenced proceedings by way of an application for an order to show cause. The relief that he claims in that application is prohibition prohibiting the Minister from proceeding further with respect to the decision made by the Minister under section 351 of the Migration Act 1958 (Cth) (“the Act”) given on 19 January 2016, certiorari to quash the Minister’s decision and mandamus directing the Minister to determine the plaintiff’s request for ministerial intervention under section 351 of the Act.

Under rule 25.03.1 of the High Court Rules 2004 (Cth), the plaintiff is to serve on the defendant, in addition to an application for an order to show cause, a summons for directions and an outline of submissions stating, among other things, why the matter should not be remitted to another court and what steps, if any, should be taken in the Court, whether by way of reference of a question of a law to the Full Court or otherwise. On the hearing of an application for an order to show cause the Justice may order the application be dismissed under rule 25.03.3 or refer the application for further hearing by a Full Court or order the defendants to show cause.

There has been no compliance with the requirements of the Rules in relation to the filing and service of a summons for directions or the outline of submissions conforming to the requirements of rule 25.03.2. That is so, notwithstanding that the Minister has brought those requirements of the Rules to the plaintiff’s attention on more than one occasion. The first occasion was by letter of 11 February 2016 and the second occasion by letter dated 9 May 2016. On the latter occasion the plaintiff was advised that if he failed to comply with the Rules the Minister proposed applying to have the proceedings dismissed. The plaintiff was served with the Minister’s summons seeking dismissal on 30 May 2016.

The plaintiff, who is in immigration detention, appears in person. He has had the assistance of a Tongan interpreter. He offered by way of explanation for his default in compliance with the Rules the explanation both that he has not had the benefit of legal assistance and that he is in detention. The fact of the failure to comply with the Rules in circumstances in which that failure has been brought to the plaintiff’s attention is not satisfactorily explained by either circumstance to which the plaintiff referred. Nonetheless, I would not consider the history of non-compliance to date of itself to be indicative of such an unwillingness to co-operate with the Court as to warrant without more the drastic step of dismissing the proceedings for want of prosecution. The Minister points to the relief claimed submitting that no arguable basis for the grant of any of the orders sought is established.

The plaintiff is a citizen of Tonga. He arrived in Australia in 1990 on a visa described as a “Visiting Relatives/Friends visa”. That visa expired three months thereafter. The plaintiff has not been lawfully present in Australia for a cumulative period of some 22 years. He was taken into immigration detention under section 189(1) of the Act on 14 September 2015.

On 28 September 2015, he applied for a Bridging E visa (General) (Subclass 050). That application was refused by a delegate of the Minister. That refusal was affirmed following a merits review in the Administrative Appeals Tribunal. The grounds on which the plaintiff claims the relief set out in his application assert a denial of procedural fairness arising from the circumstance that “the delegate and the Minister applied the wrong law and misconstrued the application by there [sic] failure to refer my request to the Minister in accordance with the section 48A request for section 48B ministerial intervention guidelines”. It is also asserted that the Minister’s decision is legally unreasonable. The reference to the delegate is unclear. The decision that is the subject of challenge is the decision made personally by the Minister on 19 January 2016. Neither section 48A or section 48B, or the guidelines relating to the exercise of those powers, is of relevance.

The Minister relies on the decisions of this Court in Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicants S134/2002[1] and Plaintiff S10/2011 v Minister for Immigration and Citizenship & Anor[2] for the proposition that mandamus will not go to compel the exercise of the power conferred on the Minister under section 351 of the Act. It follows there is no utility in either of the relief claimed in the application. The plaintiff does not make any submission directed to paragraph 4 of the claims for relief which foreshadowed the filing of an amended application with particulars. The plaintiff acknowledges that the appropriate course in the circumstances is the dismissal of the proceedings and I so order.

Is there an application for costs?

MR MARKUS: My client seeks a costs order.

HER HONOUR: Mr Tivoli, is there any reason why I should not make an order for costs?

MR TIVOLI (through interpreter): Your Honour, just take into account that I am in the detention centre, that I am not access to anything else.

HER HONOUR: Yes, thank you, Mr Tivoli. The application for an order to show cause is dismissed with costs.

MR MARKUS: If the Court pleases.

HER HONOUR: Adjourn the Court.

AT 10.17 AM THE MATTER WAS CONCLUDED

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[1] [2003] HCA 1; (2003) 211 CLR 441.
[2] [2012] HCA 31; (2012) 246 CLR 636.