Plaintiff S213/2015 v Minister for Immigration and Border Protection [2016] HCATrans 213 (7 September 2016)

Last Updated: 12 September 2016

[2016] HCATrans 213

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S213 of 2015

B e t w e e n -

PLAINTIFF S213/2015

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 7 SEPTEMBER 2016, AT 9.39 AM

Copyright in the High Court of Australia

PLAINTIFF S213/2015 appeared in person.

MR P.M. KNOWLES: May it please the Court, I appear for the defendant. (instructed by Mills Oakley)

HER HONOUR: Yes. We might have the interpreter sworn before we proceed further.

SEVU WAQATAIREWA, sworn as interpreter.

HER HONOUR: Sir, have you received a copy of the submissions filed by the Minister for Immigration and Border Protection?

PLAINTIFF S213/2015 (through interpreter): Yes, he has, thank you.

HER HONOUR: Mr Knowles, as I understand it, the plaintiff requires an order extending time under section 486A of the Migration Act.

MR KNOWLES: Yes, your Honour.

HER HONOUR: And the Minister opposes the extension that is sought and submits the consequential order is to dismiss the proceeding.

MR KNOWLES: Yes, your Honour.

HER HONOUR: Yes. And the Minister relies on the affidavit of Ms Sangha, filed on 2 September 2016.

MR KNOWLES: Yes, your Honour. I draw to the Court’s attention some material that was filed and received by the applicant this morning.

HER HONOUR: Yes. Now, I will take that matter up with the plaintiff. Thank you. Sir, firstly, do you understand that the Minister opposes the making of an order extending the time in which you may be permitted to bring this proceeding?

PLAINTIFF S213/2015 (through interpreter): Yes.

HER HONOUR: And do you understand that unless an order is made extending the time, the proceedings will be dismissed?

THE INTERPRETER: Excuse me, ma’am, would you repeat that please.

HER HONOUR: Yes. Do you understand that unless I make an order extending time, the proceedings will be dismissed?

PLAINTIFF S213/2015 (through interpreter): May I clarify what the order is – make an order?

HER HONOUR: Under the Migration Act an application of the kind that you have made is to be made within 35 days of the decision that is the subject of challenge. The Court has the power to extend that period if the person applying for the extension specifies why it is necessary in the interests of justice to make the extension and the Court considers that it is necessary.

THE INTERPRETER: Ma’am, would you like him to respond then to - - -

HER HONOUR: I will come to the plaintiff’s opportunity to respond in a moment. For the present, I want to be sure that the plaintiff understands the purpose of these proceedings today. The first matter to be considered is the extension of time. The plaintiff filed an affidavit at the time he filed his application for an order to show cause and in his affidavit he gave an account of the reasons for the delay in bringing these proceedings. Do I understand the plaintiff wants me to take into account the things that he stated in that affidavit filed on 7 October 2015? I saw the plaintiff nod, am I right in understanding that he wishes me to take that matter into account?

THE INTERPRETER: Yes.

HER HONOUR: All right. Now, in addition, material was filed in the Registry this morning. Firstly, an affidavit sworn by the plaintiff, and in addition to that, did the plaintiff also provide some documents by way of references in support of his application?

PLAINTIFF S213/2015 (through interpreter): Yes.

HER HONOUR: Mr Knowles, in addition to an affidavit described as “Affidavit Verifying the Facts Relied Upon by the Applicant for his Federal Circuit Court Appeal” I have two bundles of documents containing references and other materials. Have you seen those?

MR KNOWLES: I have only one bundle in addition to the affidavit that I have seen and the first reference on that is dated 1 September 2016. It is from the Seventh Day Adventist Church, or at least on that church’s letterhead.

HER HONOUR: Yes. I have two bundles, each of which commences with a reference by Pastor Mote, dated 1 September 2016, on the letterhead of the Seventh Day Adventist Church, but when one examines the bundles they then have different documents behind them. Perhaps I will pass both bundles down to you and we might then inquire which, if any, documents are relied upon.

MR KNOWLES: Your Honour, I found amongst my learned friend Mr Reilly’s papers a copy of the second bundle, so I do have both of those.

HER HONOUR: All right. Thank you. Well, I will mark the - - -

MR KNOWLES: Your Honour, just before your Honour does that may I interrupt? The fastening of the second bundle with the paperclip has led to a loose page. I might hand that up.

HER HONOUR: Thank you, Mr Knowles. I will mark the slimmer of the two bundles Exhibit A, and the second of the two bundles, which is the thicker, Exhibit B.

EXHIBIT A: Slim bundle of documents

EXHIBIT B: Thick bundle of documents

HER HONOUR: Mr Knowles, what do you say to the affidavit and to the materials in the two exhibits?

MR KNOWLES: Your Honour, I have no objection, save as to relevance. They are not matters that were before the decision-maker.

HER HONOUR: Yes. Thank you, Mr Knowles. All right, and I take it, Mr Knowles, you rely on your written submissions.

MR KNOWLES: Yes, your Honour.

HER HONOUR: Mr Knowles, I think I read somewhere in the material annexed to Ms Sangha’s affidavit that while a request for ministerial intervention under section 417 was declined on the basis that there was not a decision of the Tribunal under section 415, nonetheless the matters that

the plaintiff sought to raise were being considered for the purposes of possible ministerial intervention, is that right?

MR KNOWLES: Yes, your Honour. If your Honour turns to page 109 of the exhibit, it is exhibit F - - -

HER HONOUR: Yes, 109.

MR KNOWLES: In the final and the penultimate substantive paragraphs of that letter - - -

HER HONOUR: Yes.

MR KNOWLES: - - - there is a reference to consideration, or ongoing consideration, of intervention under section 48B which would allow a further application to be brought.

HER HONOUR: Yes. Do you know whether that consideration is still ongoing?

MR KNOWLES: I do not have any instructions on that matter. I can seek them if your Honour wishes.

HER HONOUR: No. Sir, you filed proceedings in this Court seeking to challenge a decision made by an officer of the Department of Immigration refusing you a protection visa.

PLAINTIFF S213/2015 (through interpreter): Yes.

HER HONOUR: That decision was made in August 2013. You then applied to the Minister asking him to consider exercising his power to make a more favourable decision than the decision that had been made. The Department advised you that your application for ministerial intervention under that provision, section 417 of the Migration Act, was inappropriate but that consideration was being given to whether the Minister would permit you to make a further application for a protection visa.

PLAINTIFF S213/2015 (through interpreter): Yes, your Honour.

HER HONOUR: Today you have sought to add to the material in support of your application an affidavit in which you set out material in support of your claims to be a person to whom Australia should offer protection, and you have handed up to the Court a number of references and other documents that are designed to support your claim to be a person who should be given protection by Australia.

PLAINTIFF S213/2015 (through interpreter): Yes, your Honour.

HER HONOUR: The application that is before me is not concerned with the merits of any claim to protection that you might make. It is an application that seeks to challenge the legality of the decision that was made back in August 2013 not to grant you a protection visa, do you understand that?

PLAINTIFF S213/2015 (through interpreter): Yes, your Honour.

HER HONOUR: You have stated in your first affidavit that you did not apply for judicial review because you were ignorant of migration law and of your rights of appeal. You were represented by Mr Bitel of Parish Patience at the time you made your application for review in the Refugee Review Tribunal, is that so?

PLAINTIFF S213/2015 (through interpreter): Yes, your Honour.

HER HONOUR: Is there anything further you wish to put to me apart from the material in your two affidavits?

PLAINTIFF S213/2015 (through interpreter): Your Honour, he believes that if he had received the letters from the Tribunal which he had not got originally then he would have been able to have followed the processes that were available and he just wants to add that onto the documents that he has already provided, the affidavit.

HER HONOUR: Thank you. Yes, I do not need to hear from you, Mr Knowles.

On 7 October 2015, the plaintiff filed an application for an order to show cause why prohibition should not issue restraining the defendant, the Minister for Immigration and Border Protection, from acting on the decision of his delegate made on 2 August 2013 refusing to grant the plaintiff a protection visa. Certiorari is sought to quash the delegate’s decision and mandamus to compel the Minister to determine the plaintiff’s application according to law. An order is sought dispensing with the time limit for commencing the proceeding. The plaintiff has not taken any further step in the proceeding since the filing of the application.

The plaintiff is a citizen of Fiji. He arrived in Australia on 29 March 2012 on a tourist visa. Two days before the expiration of that visa he applied for a protection visa. He claimed to fear harm from the Fijian Government and military based on his views that are critical of the Fijian Government.

On 2 August 2013, the delegate refused the application. The delegate did not accept that the plaintiff had or would come to the attention of the Fijian authorities by reason of his anti-government views, or because he had sought protection in Australia. The delegate was not satisfied that the plaintiff has a well-founded fear of persecution or that there is a real risk that the plaintiff would suffer significant harm as a consequence of being returned to Fiji.

On 28 November 2013, the plaintiff applied to the Refugee Review Tribunal for a review of the delegate’s decision. The Tribunal held that it had no jurisdiction because the application was made outside the 28-day time limit. On 17 March 2014, the plaintiff wrote to the Minister asking him to exercise his public interest power under section 417 of the Migration Act 1958 (Cth) to substitute a more favourable decision in his case. On 1 April 2014, the plaintiff was advised by letter that the Minister’s power under section 417 is only available in a case in which the Refugee Review Tribunal has made a decision under section 415 of the Act. It was noted in that letter that the plaintiff’s request for ministerial intervention under section 48B of the Migration Act was ongoing. That section permits the Minister to lift the statutory bar on a person in the migration zone making a further application for a protection visa.

The present proceedings were commenced on 7 October 2015.

On 19 July 2016, Mills Oakley, the solicitors acting for the Minister, wrote to the plaintiff drawing to his attention the requirement that he file and serve a summons for direction and outline of submissions under Part 25 of the High Court Rules 2004 (Cth). The plaintiff was advised that if he failed to comply with the Rules the Minister would seek to have his application struck out.

On 10 August 2016, Mills Oakley again wrote to the plaintiff inviting him to comply with the Rules. On 19 August 2016, Mills Oakley furnished the plaintiff with a copy of the notice of listing of today’s hearing advising the plaintiff of the Minister’s intention to apply to have his application dismissed with costs in the event that the plaintiff failed to file a summons for direction and outline of submissions by 24 August 2016.

In written submissions filed on 2 September 2016, the Minister foreshadowed his opposition to the extension of time under section 486A(2) of the Migration Act. The Minister submits that the application should be dismissed with costs.

The application for a remedy respecting a migration decision in the exercise of this Court’s original jurisdiction must be made within 35 days of the making of the migration decision. The Court may extend that period if an application for such an order is made in writing specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order and the Court is satisfied that it is necessary in those interests to do so.

In his affidavit filed on 7 October 2015, the plaintiff states that he failed to apply for merits review to the Refugee Review Tribunal in time because he had not received a copy of the decision at his address for correspondence. The plaintiff was represented by Mr David Bitel of Parish Patience in his review application lodged with the Refugee Review Tribunal. The Tribunal provided the plaintiff with an opportunity to comment on its initial view that the plaintiff was out of time. The Tribunal was satisfied that the plaintiff was taken to have been notified of the delegate’s decision on 13 August 2013. The plaintiff also explained in his affidavit that he did not seek judicial review of the delegate’s decision because he was ignorant of migration law and of any avenues of challenge in the Court.

This morning the plaintiff has filed an affidavit, together with a number of references and other documents. That material does not address the issue of the inordinate delay that has attended the commencement of the proceedings. The focus of the material is on the merits of the plaintiff’s claims to engage Australia’s protection obligations.

Returning to the application for an order to show cause, relief is claimed on three grounds. First, that the delegate’s decision was “legally unreasonable”, “unfair”, “plainly unjust” and “[lacking] an intelligible justification”. The Minister submits, and I accept, that the plaintiff does not identify any defect in the decision which arguably would support a conclusion that it is illogical or irrational.

Secondly, the plaintiff alleges that he was denied procedural fairness in that the delegate made factual findings “without any evidence to support or justify his findings and failed to have regards to relevant materials and ignoring of relevant considerations”. The ground is not otherwise particularised. The Minister submits, and I accept, that it was open on the material before the delegate for that officer to be unsatisfied that the plaintiff’s claims establish either a well-founded fear of persecution or a risk of significant harm.

Thirdly, the plaintiff alleges that the delegate misconstrued section 36(2)(aa) and section 91R of the Migration Act. No error in the construction of either provision is identified. To the extent that the challenge is to the application of the provisions, the Minister submits, and I accept, that it was open to the delegate to find that the plaintiff’s claimed fear did not amount to persecution for a Convention reason within section 91R(1), nor did the plaintiff face a real risk of significant harm if he were removed from Australia to Fiji.

No satisfactory explanation has been provided for the inordinate delay in bringing the proceeding. The plaintiff was advised of the possibility of commencing proceedings in this Court at the latest by 17 March 2014. The fact that the plaintiff chose to seek the Minister’s personal intervention instead of instituting proceedings for judicial review does not justify the extension of time[1]. Moreover, the grounds upon which the relief is claimed are without merit.

I am not satisfied that it is in the interests of the administration of justice to make an order extending the period in which to bring the application. For these reasons there will be the following order: application for an order to show cause is dismissed with costs.

AT 10.15 AM THE MATTER WAS CONCLUDED

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[1] Plaintiff M90/2009 v Minister for Immigration and Citizenship & Anor [2009] HCATrans 279 per Crennan J; SZUSH v Minister for Immigration and Border Protection [2016] HCATrans 112 per Nettle J.