Plaintiff S73/2018 v Honourable Justice Rares & Ors [2018] HCATrans 169 (29 August 2018)

Last Updated: 31 August 2018

[2018] HCATrans 169

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S73 of 2018

B e t w e e n -

PLAINTIFF S73/2018

Plaintiff

and

HONOURABLE JUSTICE RARES

First Defendant

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Defendant

IMMIGRATION ASSESSMENT AUTHORITY

Third Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 29 AUGUST 2018, AT 11.06 AM

Copyright in the High Court of Australia

MS R. GRAYCAR: May it please the Court, I appear for the Minister who is the second defendant in these proceedings. (instructed by DLA Piper Australia)

HIS HONOUR: Yes, thank you, Ms Graycar. I notice that there are submitting appearances for the first and third defendants.

MS GRAYCAR: Yes, your Honour. I have an affidavit of service of the submissions and a notice of the hearing date which I seek to read.

HIS HONOUR: Yes, I will give you leave to file that affidavit in Court. Thank you.

MS GRAYCAR: Yes, your Honour. May it please the Court.

HIS HONOUR: Thank you. I do read that affidavit. There has also been provided to the Registry, Ms Graycar, a medical certificate. Have you seen a copy of that?

MS GRAYCAR: No, your Honour. We did receive some additional submissions earlier this week but not the medical certificate.

HIS HONOUR: We will provide you a copy of that document.

MS GRAYCAR: Thank you, your Honour.

HIS HONOUR: You can take a seat, Ms Graycar. Thank you.

MS GRAYCAR: Thank you, your Honour. Your Honour, my solicitor would seek to get some instructions from the client, given that this is the first notice we have had of this if your Honour would be seeking our view as to how the matter should proceed.

HIS HONOUR: Yes. Well, I will allow you to get some instructions.

MS GRAYCAR: Thank you, your Honour.

HIS HONOUR: If it is possible to deal with it today it would be - - -

MS GRAYCAR: I note that the date of the medical certificate is 27 August. Today is the 29th.

HIS HONOUR: It does anticipate that he will be indisposed today.

MS GRAYCAR: Yes, your Honour.

HIS HONOUR: So far as I am aware – and you might make some inquiries – the medical certificate was forwarded without any request for an adjournment.

MS GRAYCAR: I see.

HIS HONOUR: But it is better that you make the inquiries and seek the instructions and we can consider the appropriate course to take then. How long do you need?

MS GRAYCAR: Five to 10 minutes.

HIS HONOUR: I will give you until 20 past.

MS GRAYCAR: Thank you, your Honour.

HIS HONOUR: The Court will adjourn until 20 past 11.

AT 11.11 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.17 AM:

HIS HONOUR: Ms Graycar.

MS GRAYCAR: Thank you, your Honour. We have now received instructions, which are to seek to have your Honour deal with the matter on its merits in the absence of the plaintiff, and that is to seek to have it dismissed on a final basis under rule 25.03.3(a).

HIS HONOUR: Yes, all right. Well, that is the course I propose to take. I will admit the medical certificate into evidence as exhibit 1.

EXHIBIT 1: Medical certificate

HIS HONOUR: I will read the affidavit of the plaintiff, affirmed 27 March, and admit the exhibits to that affidavit. It should also be recorded that I have read and take into account the plaintiff’s submissions, filed 18 June and 27 August. Ms Graycar, I do not need to hear from you. Thank you.

MS GRAYCAR: Thank you, your Honour.

HIS HONOUR: The application I now proceed to deal with is for an order to show cause filed in the original jurisdiction of this Court on 27 March 2018. The principal relief sought in the application is a writ of certiorari to quash the decision of Justice Rares in the Federal Court of Australia in CKG16 v Minister for Immigration and Border Protection [2018] FCA 362, a decision which dismissed an application for leave to appeal from the earlier decision of Judge Street in the Federal Circuit Court of Australia in CKG16 v Minister for Immigration and Border Protection [2017] FCCA 508. By that earlier decision, Judge Street dismissed, under rule 44.12 of the Federal Circuit Court Rules 2011 (Cth) an application for judicial review of a decision of the Immigration Assessment Authority which affirmed a decision of a delegate of the Minister to refuse the plaintiff a protection visa.

The plaintiff, who was represented in the Federal Circuit Court and in the Federal Court but who is unrepresented in the proceedings in this Court, has failed to appear at the scheduled hearing of the application this morning. Two days ago the plaintiff forwarded to a deputy registrar of this Court a medical certificate stating that he would be unfit to attend Court today as he was suffering from symptoms, possibly caused by influenza, and had been advised to rest for a week. The medical certificate was not accompanied by an application for adjournment of the scheduled hearing and I interpret it as having been supplied by the plaintiff simply by way of explanation for his non-attendance.

The plaintiff on 18 June 2018 filed written submissions in support of the application. Just two days ago, the same day as he forwarded the medical certificate, the plaintiff filed further submissions, in part responsive to submissions which had been filed on behalf of the Minister. Those further submissions contain nothing to indicate that the plaintiff has not said everything he wishes to say in support of the application.

The sole ground identified in the application for the relief sought is expressed in terms that Justice Rares “made a jurisdictional error” in dismissing the application for leave to appeal in circumstances in which the substantive ground of appeal was meritorious. The sole substantive ground of appeal on which leave to appeal to the Federal Court was sought was that Judge Street failed to accord procedural fairness to the plaintiff by wrongly exercising his power summarily to dismiss his application under rule 44.12.

In dismissing the application for leave, Justice Rares pointed out that the plaintiff’s judicial review application had been set down for a show cause hearing in the Federal Circuit Court for some months and that the plaintiff had been on notice that the hearing would deal with whether he had raised an arguable case for relief. His Honour noted that the plaintiff had provided no evidence, in the form of a transcript or some account of the hearing, that Judge Street had not properly considered the plaintiff’s submissions or had otherwise conducted the hearing unfairly. His Honour found that the ex tempore reasons for judgment of Judge Street, although brief, had dealt adequately with the arguments which had been advanced to him.

Justice Rares also went on himself to consider the merits of the principal ground on which the plaintiff had sought to rely before Judge Street, being that the Authority had breached section 473DE of the Migration Act 1958 (Cth) by failing to give the plaintiff particulars of what was asserted to be new information. His Honour found, consistently with the finding of Judge Street, that the information in question - a Department of Foreign Affairs and Trade country information report - had been before the delegate and therefore did not meet the statutory definition of “new information”.

The reasoning of Justice Rares discloses no error, let alone jurisdictional error. To the contrary his Honour’s assessment that the plaintiff’s proposed ground of appeal was lacking in merit was plainly correct.

Pursuant to rule 25.03.3(a) of the High Court Rules 2004 (Cth), the order that I now make is that the application for an order to show cause is dismissed with costs.

Thank you, Ms Graycar.

The Court will now adjourn.

AT 11.24 AM THE MATTER WAS CONCLUDED