BMI15 & Ors v Minister for Immigration and Border Protection & Ors [2016] HCATrans 259 (3 November 2016)

Last Updated: 16 November 2016

[2016] HCATrans 259

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M127 of 2016

B e t w e e n -

BMI15

First Plaintiff

BMJ15

Second Plaintiff

BMK15

Third Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 3 NOVEMBER 2016, AT 11.35 AM

Copyright in the High Court of Australia

____________________

MR L.T. BROWN: If the Court pleases, I appear for the first defendant. (instructed by Clayton Utz Lawyers)

HIS HONOUR: Would you call the matter outside please, Madam Registrar.

COURT OFFICER: No appearance, your Honour.

HIS HONOUR: Thank you. Mr Brown, evidently the plaintiff requires the assistance of a Hindi interpreter and none is available. I gather it has been suggested or conveyed to him that we are amenable to putting the matter off until such an interpreter is available. Is that going to cause you – I have put that wrong it seems, Mr Brown. A Hindi interpreter was sought by the Registry for him and it was ascertained that none would be available today but, evidently, the plaintiff was not informed of the fact that none would be available and, thus, it is to be concluded that his absence today is not due to any concern about the lack of a Hindi interpreter.

MR BROWN: Yes.

HIS HONOUR: What then is it proposed that we do?

MR BROWN: In those circumstances, your Honour, which are the circumstances that I understand prevail, in my submission, it is simply a case of a plaintiff not turning up and there is no reason why the matter cannot proceed to a determination on its merits, assuming that your Honour is satisfied that the plaintiff has notice of today’s listing which, in my submission, your Honour can be from the letter that is sent by the Court. My instructor will have a copy of that, if I can hand that to your Honour.

HIS HONOUR: Yes, thank you, that would be helpful.

MR BROWN: I apologise, your Honour, my instructor has just informed me that it only has his address on it, not – so perhaps your - - -

HIS HONOUR: I see. Just pardon me a moment. Have a seat please. It appears from the Court’s records, Mr Brown, that a letter dated 24 October 2016 was sent to the plaintiff, at the same time as the letter was sent to the Minister of that date informing him of today’s hearing.

MR BROWN: Yes, your Honour. In those circumstances, your Honour, my submission is that your Honour can infer that the plaintiff has notice of today’s hearing, the plaintiff has not turned up. The Court is entitled to deal with the matter on its merits and that would be the most efficient use of the Court’s resources.

HIS HONOUR: Thank you.

By application filed on 13 September 2016, the plaintiffs seek an order to show cause why certiorari should not go to quash decisions of the Refugee Review Tribunal, now the Administrative Appeals Tribunal, made on 29 June 2015, of the Federal Circuit Court of Australia made on 20 May 2016 and of the Federal Court of Australia made on 16 August 2016; and why mandamus should not go to the defendant (“the Minister”) to compel the review according to law of a decision of the Minister’s delegate made on 23 July 2014 to refuse the plaintiffs’ application for a Protection (Class XA) visa and a dependant visa.

On the matter coming on for hearing this morning, there has been no appearance by or on behalf of the plaintiffs, notwithstanding that by letter dated 24 October 2016 from the Deputy Registrar, the plaintiffs were informed of the time of hearing. Those being the circumstances, and in view of the delay which has thus far attended the matter, I propose to proceed in the plaintiffs’ absence.

The application is substantially out of time, under both section 486A of the Migration Act 1958 (Cth) and rule 25.06 of the High Court Rules 2004 (Cth), and for reasons which I shall now relate I am not disposed to grant an extension of time.

The first plaintiff, and his wife who is the second plaintiff, are Indian citizens who arrived in this country on tourist visas on 31 May 2009. On 10 July 2009 they applied for Protection (Class XA) visas. The first plaintiff claimed that, because he was a Hindu and a supporter of the BJP party, he had been targeted by the Muslim mafia on a number of occasions. In particular, he alleged that on one occasion Muslim mafiosi had gone to his business in Mumbai while he was away on business in Kolkata, threatened his manager with a gun, demanded the first plaintiff’s address and gone to his home and ransacked it and stolen valuables. When, however, the first plaintiff reported the matter to the police, they refused to take action unless the manager made a statement, which it appears the manager was disinclined to do.

On 7 September 2009, the Minister’s delegate refused the application. The delegate found that the first plaintiff did not have a genuine fear of harm and that there was not a real chance of persecution occurring. The delegate further determined that if the first plaintiff did have any apprehension of returning to his previous place of residence in Mumbai, he was nevertheless reasonably able to relocate to another part of the country.

On 25 August 2014, the plaintiffs applied to the Refugee Review Tribunal for a review of the delegate’s decision. On 12 January 2015, the Tribunal affirmed the delegate’s decision. The Tribunal found that the first plaintiff had not in fact been threatened by the Muslim mafia while in India and the Tribunal did not accept that the first plaintiff would be threatened or killed by the Muslim mafia in the future upon his return to India. Nor did the Tribunal accept that either plaintiff would experience future harm upon return to India by reason of their being Hindus or because of the first plaintiff’s association with the BJP.

On 23 July 2015, the plaintiffs applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. On 20 May 2016, his Honour Judge Wilson ordered that the application be dismissed with costs. His Honour found that the Tribunal’s findings of fact were well open on the evidence and that as a matter of law the Tribunal’s decision was otherwise unassailable. He concluded that the application for judicial review was devoid of merit.

On 3 June 2016, the plaintiffs filed an application for leave to appeal to the Federal Court of Australia alleging error by the Tribunal in the application of section 424A of the Act. That application advanced two grounds of appeal. When, however, the matter came on for hearing, the plaintiffs’ solicitor submitted two revised draft grounds of appeal, namely (1) that the Federal Circuit Court erred in holding that the Tribunal’s procedures were unimpeachable and “did not err in its jurisdiction”; and (2) that the Federal Circuit Court erred in holding that the application for judicial review was in essence an impermissible application to review the facts.

On 16 August 2016, Justice Moshinsky dismissed the application for leave. His Honour rejected a contention put for the first time in the Federal Court that the Tribunal had erred by directing its questioning mainly to the first plaintiff and consequently too little to the second plaintiff. As his Honour observed, the plaintiff had been represented before the Tribunal and there was no complaint made then about the extent of questioning or lack of questioning of the second plaintiff.

Justice Moshinsky also rejected a further contention advanced for the first time in the Federal Court that the Tribunal had erred in its findings as to the threat or lack of it posed by the Muslim mafia. As his Honour observed, apart from the fact of the contention being raised for the first time before him, it was plain that there were inconsistencies in the plaintiffs’ several versions of events that warranted the Tribunal’s findings. Justice Moshinsky concluded accordingly that there was no basis to suppose that an appeal would succeed. The application for leave to appeal was devoid of merit and should be dismissed on that basis.

Thus, the matter comes here. Now the sole ground of application to show cause is that “the Federal Court judge failed to find that the Federal Magistrate Court’s decision was in breach of section 424A of the Migration Act 1958 (Cth) and therefore fall [sic] into jurisdictional error”. That allegation reprises one of the proposed draft grounds of appeal to the Federal Court which were abandoned in argument before Justice Moshinsky. Other things being equal, therefore, that would be enough reason in itself to reject it. But there is more.

Section 424A of the Act provides in substance that the Tribunal must give an applicant fair particulars of any information the Tribunal considers would be reason or part of the reason for affirming a decision under review, ensure as far as is reasonably practicable that the applicant is made to understand why it is relevant to the review and the consequences of it being relied upon, and invite the applicant to comment. The plaintiffs, however, have not identified in writing or orally any basis on which it might be said that the Tribunal’s decision is even arguably affected by jurisdictional error, the consequence of failing to adhere to the requirements of section 424A. Like the grounds of review advanced before Judge Wilson in the Federal Circuit Court and the further proposed grounds of appeal advanced before Justice Moshinsky in the Federal Court, the sole ground of application for order to show cause is unparticularised and otherwise devoid of meaningful content.

In the result I consider that the application for order to show cause is hopeless and, therefore, that it would be futile to grant an extension of time. I order accordingly that the application for order to show cause be dismissed. I shall further order that the plaintiffs shall pay the defendant’s costs of the proceeding.

In view of the many reviews and applications for leave to appeal which the plaintiff has previously been accorded, and the results of each of the proceedings, I am disposed to think also that it is appropriate that the defendant’s costs be taxed and paid on an indemnity basis. What do you say as to that, Mr Brown?

MR BROWN: Your Honour, applying the ordinary principles there is some merit to your Honour’s suggestion, that is where an applicant coming before the Court properly advised she would apprehend that their case is hopeless or bound to fail, and I think Fountain Selected Meats comes to mind, then it is appropriate that a higher scale be ordered. This would be such a case, your Honour.

HIS HONOUR: Yes. It is ordered accordingly that the application for order to show cause be dismissed, the plaintiff shall pay the defendant’s costs of the proceeding and that those costs be taxed and paid on an indemnity basis pursuant to rule 50.02.1(c) of the High Court Rules 2004 (Cth).

MR BROWN: As your Honour pleases.

HIS HONOUR: Thank you, Mr Brown.

AT 11.50 AM THE MATTER WAS CONCLUDED