Plaintiff S264/2016 v Minister for Immigration and Border Protection & Anor [2018] HCATrans 167 (29 August 2018)

Last Updated: 31 August 2018

[2018] HCATrans 167

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S264 of 2016

B e t w e e n -

PLAINTIFF S264/2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 29 AUGUST 2018, AT 10.37 AM

Copyright in the High Court of Australia

MR J.B. KAY HOYLE: May it please the Court, I appear on behalf of the first defendant. (instructed by Clayton Utz Lawyers)

HIS HONOUR: Thank you, Mr Kay Hoyle. Do we have an appearance for the plaintiff?

MR KAY HOYLE: I believe we do, your Honour. I believe that my opponent is outside.

HIS HONOUR: Please call the matter outside the Court.

MR A.M.N. FRONIS: I appear for the plaintiff. (instructed by L. Myers/A. Tees)

HIS HONOUR: Mr Fronis, we are moving to your matter. I understand that you rely on an affidavit of the plaintiff affirmed 23 November. Is that correct?

MR FRONIS: Yes, that is correct.

HIS HONOUR: Is there any objection to that affidavit, Mr Kay Hoyle?

MR KAY HOYLE: No, your Honour.

HIS HONOUR: Thank you. I read that affidavit and I admit the exhibit. Now, Mr Fronis, I have read your submissions.

MR FRONIS: Yes, your Honour.

HIS HONOUR: Is there anything more you can say?

MR FRONIS: Your Honour, I would just like to explain one point. Obviously this has to be a wholly exceptional case.

HIS HONOUR: Yes.

MR FRONIS: It can be readily accepted that some of the grounds are perhaps ambitious, some are perhaps arguable but they do not, on their face, seem to be exceptional. But the reason – and it is relied upon in proving that this case is an exceptional case - is fresh evidence of an arrest warrant attached to the affidavit filed 23 November 2016. There is, on the last page of that affidavit, page 44, a translation of an arrest warrant.

HIS HONOUR: Yes. Now, how does that bear on the decision that I need to make?

MR FRONIS: I can say at the forefront obviously that fresh evidence could not be relied upon in determining the merits of the judicial review application. What I do say is that the fresh evidence – if it is accepted to be what it purports to be – shows that there is potential risk for the plaintiff if he returns to Libya. Now, the relevance of that on the extension of time application is that if there is such a risk, based on the fresh evidence, then this case could conceivably fall within the exceptional category in the sense that the Court should permit an extension of time to allow what appears to be arguable grounds for judicial review to be considered. That is based simply on the fresh evidence of an arrest warrant. So it does not go higher than that.

Now, perhaps, your Honour, if I could put it this way, that if the Court does accept – if I could put it perhaps at a high level of abstraction. If the Court receives fresh evidence on an extension of time application that would tend to show that there is a real risk for a Convention reason that if the plaintiff returns to their country they will suffer harm, or that there is a well-founded fear of persecution based on that fresh evidence then the Court is in, refusing the extension of time application, effectively saying well, even though that is true, we are not going to consider the grounds on their merits because it is not within the interests of justice.

But the Court should not do that, because if there is fresh evidence it would tend to show that then it should be, in my submission, within the interests of justice to decide the case on its merits, even if it is only arguable grounds.

HIS HONOUR: All right.

MR FRONIS: That is the point that I would make, your Honour, that makes this case within an exceptional category. It is based on using that fresh evidence for that purpose. I have placed it on a high level of abstraction because that submission also would of course rely on your Honour accepting that the arrest warrant is what it purports to be and has the effect that it purports to have. That is what I wish to say, your Honour.

HIS HONOUR: Thank you, Mr Fronis. Mr Kay Hoyle, I do not need to hear from you. Thank you.

MR KAY HOYLE: May it please the Court.

HIS HONOUR: The plaintiff is a Libyan national who arrived in Australia on 21 June 2010 on a student visa. On 24 January 2013, he applied for a protection visa claiming to fear persecution in Libya by reason of his actual or imputed support for the former Gaddafi regime. The application was refused by a delegate of the Minister for Immigration and Border Protection on 23 August 2013 in a decision which was affirmed on review by the Refugee Review Tribunal on 7 March 2014.

By an application filed on 7 August 2014, the plaintiff applied to the Federal Circuit Court under section 477(2) of the Migration Act 1958 (Cth) for an extension of the 35 day time period set by section 477(1) of that Act for seeking judicial review by that court of the Tribunal’s decision.

The application was determined by Judge Driver on 10 August 2015 in SZUWX v Minister for Immigration and Border Protection [2015] FCCA 2151. Judge Driver saw the plaintiff’s proposed grounds of review as arguable. However, his Honour was not persuaded that the interests of the administration of justice required the grant of an extension of time given the failure of the plaintiff to provide a satisfactory explanation for his delay of three months in approaching the Federal Circuit Court.

The plaintiff then applied to the Federal Court of Australia under section 39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of Judge Driver. The application was dismissed by Justice Griffiths on 4 December 2015 in SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389. The decision of Justice Griffiths was upheld on appeal by a Full Court comprised of Chief Justice Allsop and Justices Flick and Bromwich on 27 May 2016 in SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77.

On 23 November 2016, the plaintiff then filed in the original jurisdiction of this Court an application for an order to show cause in which he sought again to challenge the Tribunal decision of 7 March 2014.

On 29 June 2018, the plaintiff filed a summons for directions which has resulted in the application being listed for hearing before me today. There is nothing before me to explain the extraordinary time taken by the plaintiff to file that summons. The present question, however, is not as to the timing of the filing of the summons but as to the timing of the filing of the application in this Court.

The application having been filed some two years and seven months outside the 35 day period set by section 486A(1) of the Act for seeking judicial review of a migration decision in this Court, the plaintiff requires and seeks an extension of time under section 486(2) of the Act in order for the application to proceed. To obtain such an order the plaintiff needs to satisfy me that its making is necessary in the interests of the administration of justice. Given the length of the delay, the plaintiff, through his counsel, Mr Fronis, accepts that to do so he must demonstrate, by reference to considerations which include the merits of the application, that his case falls into a category that can be regarded as exceptional.

The plaintiff seeks to establish that his case is exceptional, principally by relying on a document which, on its face, purports to be a warrant for his arrest issued by the Al Jafrah Military Council on 6 December 2015. The genuineness and effect of that document is disputed and need not now be determined by me. At best the document could provide a reason for considering that the plaintiff might face a real risk of harm were he to return to Libya and on that basis might have some prospect of establishing a claim to refugee status, were it to be pursued now. The document could have no bearing on the decision made by the Tribunal in March 2014, nor does the document in any way bear on the delay that has occurred in the commencement of these proceedings.

The application seeks to challenge the decision of the Tribunal on three grounds. The first is that the Tribunal failed to afford procedural fairness by failing to consider country information prepared by the Department of Foreign Affairs and Trade as required by an applicable ministerial direction made under section 499 of the Migration Act. The second ground is that the decision of the Tribunal failed to take into account country information placed before it on behalf of the plaintiff. The third is that the decision was unreasonable or illogical.

On none of those grounds, in my opinion, is there an arguable case for impugning the decision of the Tribunal. As to the first ground there was, at the time of the Tribunal’s decision, no country information on Libya which had been prepared by the Department of Foreign Affairs and Trade. The Tribunal was under no obligation to seek out a report from that department. The obligation of the Tribunal, with which it complied, was to consider the material available to it at the hearing. The Tribunal determined that the plaintiff’s claims were not credible as they were not corroborated by that available evidence.

As to the second ground, the reasons of the Tribunal provide no basis for an inference that the Tribunal failed to take into account any of the country information on which the plaintiff had sought to rely.

As to the third, there is nothing in the reasons of the Tribunal, or otherwise in the material placed before me in evidence to suggest that the Tribunal’s approach took the decision, at the time it was made, beyond the bounds of reasonableness.

There are, however, more fundamental bases for considering that an order extending time for the application to proceed in this Court is not necessary in the interests of the administration of justice. First, the plaintiff advances no explanation at all for the delay in making the application. Second, the grounds on which the plaintiff seeks to rely to review the decision of the Tribunal in this Court overlap substantially, if not completely, with those which he sought to advance to the Federal Circuit Court, now some four years ago. There was no jurisdictional impediment and the plaintiff points to no practical impediment to all of them being pursued there and then. The original jurisdiction of this Court is not to be treated as a forum for the rerunning of an application made to and disposed of in the original jurisdiction of the Federal Circuit Court.

The orders I make are as follows:

1. The application for an order under section 486A(2) of the Migration Act is refused.
   
2. The application for an order to show cause is dismissed.
   
3. The plaintiff is to pay the costs of the defendants.
   

Thank you, gentlemen.

AT 10.54 AM THE MATTER WAS CONCLUDED