Plaintiff S254-2018 v The Honourable Justice McKerracher & Ors [2019] HCATrans 212 (6 November 2019)

Last Updated: 6 November 2019

[2019] HCATrans 212

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S254 of 2018

B e t w e e n -

PLAINTIFF S254/2018

Plaintiff

and

THE HONOURABLE JUSTICE McKERRACHER

First Defendant

THE HONOURABLE JUSTICE MURPHY

Second Defendant

THE HONOURABLE JUSTICE DAVIES

Third Defendant

MINISTER FOR HOME AFFAIRS

Fourth Defendant

IMMIGRATION ASSESSMENT AUTHORITY

Fifth Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 NOVEMBER 2019, AT 9.32 AM

Copyright in the High Court of Australia

____________________

HIS HONOUR: By an amended application for a constitutional or other writ filed 27 February 2019, the plaintiff seeks orders in the nature of certiorari and mandamus and other relief. For the reasons that I now publish I would dismiss the application.

The order is:

1. The application is dismissed under r 25.09.1 of the High Court Rules 2004 (Cth).

2. The plaintiff pay the fourth defendant’s costs.

I publish that order.

I direct the reasons as published be incorporated into the transcript.

The plaintiff is a Sri Lankan citizen. On 15 September 2015, he applied for a “protection” or Safe Haven Enterprise Visa. The application was refused by a delegate of the fourth defendant, the Minister for Immigration and Border Protection (“Minister”) on 10 February 2016. The Immigration Assessment Authority (“the Authority”) reviewed the decision of the delegate under the fast track assessment process contained in Pt 7AA of the Migration Act 1958 (Cth). On 24 March 2016, the Authority affirmed the decision of the delegate, largely for reasons of lack of credibility of the plaintiff. On 29 June 2017, the Federal Circuit Court of Australia refused an application by the plaintiff for judicial review^[1]. On 14 August 2018, the Full Court of the Federal Court of Australia dismissed the plaintiff’s application for an extension of time to file an appeal on the basis that the proposed appeal would have had insufficient prospects of success^[2].

Other than in exceptional circumstances, statutory rights of appeal and applications for leave to appeal must be exhausted “before this Court will contemplate an application for a constitutional writ directed to achieving a result that in substance may be obtained on appeal”^[3]. Although ss 33(4B)(a) and 25(2)(b) of the Federal Court of Australia Act 1976 (Cth) precluded the plaintiff from bringing an application for special leave to appeal to this Court, this does not mean that the plaintiff has free licence to relitigate the issues afresh in the original jurisdiction of this Court.

The plaintiff filed an application seeking constitutional and other writs and associated extensions of time in the original jurisdiction of this Court. The plaintiff seeks writs of certiorari to quash the orders made by the Full Court of the Federal Court and to quash the relevant orders made by the Federal Circuit Court. The plaintiff then seeks orders from this Court in the nature of a writ of certiorari quashing the 24 March 2016 decision of the Authority and an order in the nature of a writ of mandamus directing the Authority to hear and determine the application for review according to law.

Even putting to one side the circumvention of the prohibition in s 33(4B)(a) of the Federal Court of Australia Act that would result if there were no restrictions upon an application being brought in the original jurisdiction of this Court effectively to relitigate a matter for which appeal rights had been exhausted, there is a fundamental difficulty in this application. The plaintiff has not identified any jurisdictional errors by the Full Court of the Federal Court and by the Federal Circuit Court such as could entitle him to the relief sought. As this Court said in Craig v South Australia^[4] “the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine”. A court may make errors in deciding questions of law, and the decision may therefore be appealable, but those errors are not jurisdictional errors.

In any event, the decision of this Court in BVD17 v Minister for Immigration and Border Protection^[5] requires the rejection of the plaintiff’s grounds alleging errors of law by the Full Court of the Federal Court. The reasons why this is so are as follows.

On 10 February 2016, and prior to the decision by the Authority, a delegate of the Minister had notified the Authority, by a disclosure certificate purportedly issued under s 473GB(5) of the Migration Act, that s 473GB of the Migration Act applied to a document or information in a document. The reason given on the face of the disclosure certificate was that disclosure “would be contrary to the public interest because it is a Departmental working document”^[6]. The relevant effect of the provision of the disclosure certificate was that the Authority had no power to disclose the document or information to the plaintiff unless it exercised its discretion under s 473GB(3)(b) to do so^[7]. It did not exercise that discretion. However, the Authority did exercise its discretion under s 473GB(3)(a) to consider that notified document or information.

The Federal Circuit Court dismissed the plaintiff’s application for judicial review which alleged a jurisdictional error arising from a denial of procedural fairness when the Authority failed to disclose to the plaintiff the existence of the certificate^[8]. The plaintiff sought to appeal that decision to the Full Court of the Federal Court. But his appeal was out of time. The sole ground upon which he sought to rely, subject to a successful grant of an extension of time within which to appeal, was that “[the primary judge] erred by failing to discern jurisdictional error in circumstances where the IAA had acted up[on] a certificate invalidly issued under section 473GB of the [Migration Act] or alternatively denied the [plaintiff] procedural fairness as defined in the [Migration Act]”^[9].

After dismissing the plaintiff’s application for an adjournment pending the determination of appeals to this Court which related to Pt 7 of the Migration Act rather than Pt 7AA^[10], the Full Court of the Federal Court held that the reason given on the face of the disclosure certificate for the application of s 473GB, namely that the document was a Departmental working document, was not a valid reason for that section to apply^[11]. However, the Full Court relied upon its earlier decision in Minister for Immigration and Border Protection v BBS16^[12] to conclude that the Authority did not owe an obligation of procedural fairness requiring disclosure of the existence of the certificate.

The plaintiff’s amended application for a constitutional or other writ relies upon two grounds:

“1. The Full Court of the Federal Court of Australia (Full Court) erred by dismissing the plaintiff’s adjournment application and concluding that an appeal based on Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (BBS16) being incorrectly decided had insufficient prospects of success to warrant granting the plaintiff’s extension of time application.

2. The Full Court ought to have allowed the plaintiff’s adjournment application, granted his extension of time application and allowed his appeal by holding that the plaintiff had been denied procedural fairness by the Immigration Assessment Authority (the Authority) in circumstances where the Authority had failed to disclose to him the fact of a purported notification that that s 473GB of the Migration Act 1958 (Cth) (the Act) applied in relation to a document or information.”

The plaintiff’s submissions did not contend that there was error, and certainly not jurisdictional error, in the discretionary decision of the Full Court of the Federal Court to dismiss the plaintiff’s application to adjourn the proceedings. Rather, the submissions of the plaintiff concentrated upon the underlying correctness of the decision of the Full Court as described in ground 2. By consent of the parties, the matter in this Court was adjourned until after the delivery of the decision of this Court in BVD17 v Minister for Immigration and Border Protection^[13] in which the appellant had challenged the correctness of the decision in Minister for Immigration and Border Protection v BBS16^[14].

In BVD17 v Minister for Immigration and Border Protection^[15], a majority of this Court held that the effect of s 473DA(1) was that consistently with the decision in Minister for Immigration and Border Protection v BBS16^[16], “the entirety of the content of the Authority’s obligation of procedural fairness in the context of a notification under s 473GB(2)(a) is to be found in the outworking of the discretions conferred on the Authority by s 473GB(3)”^[17].

The plaintiff did not seek to distinguish the decision of this Court in BVD17 v Minister for Immigration and Border Protection^[18] on the basis that whilst the natural justice hearing principle does not require disclosure of a certificate validly issued under s 473GB in the course of a hearing under Pt 7AA of the Migration Act, that rule might require disclosure of a certificate that was invalidly issued and that this disclosure would have been material. Such a submission would have needed to grapple with the reasoning of the majority in BVD17 v Minister for Immigration and Border Protection^[19] that “except to the extent that procedural unfairness overlaps with legal unreasonableness, procedural fairness analysis is not the ‘lens’ through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined”^[20]. Nor did the plaintiff submit in this Court that an invalidly issued certificate was “new information” under s 473DC(1) giving rise to an alternative ground of judicial review such as unreasonably failing to invite the plaintiff to comment upon it under s 473DE(1)(c). The Full Court of the Federal Court had followed Minister for Immigration and Border Protection v BBS16, where the certificate was found to have been invalidly issued under s 473GB^[21], and dismissed a submission that an invalid certificate was new information^[22]. Even if these submissions had been made, and error identified in the reasoning of the Full Court of the Federal Court, there was no suggestion that such errors would have been jurisdictional errors by the Full Court.

The plaintiff submitted, without objection from the Minister, that this application should be determined on the papers. That course is appropriate since, for the reasons I have given, the application does not disclose an arguable basis for the relief sought. The application should be dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth) with the plaintiff to pay the Minister’s costs.

Adjourn the Court please.

AT 9.33 AM THE MATTER WAS CONCLUDED

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^[1] AYF16 v Minister for Immigration & Anor [2017] FCCA 1487.

^[2] AYF16 v Minister for Immigration and Border Protection (2018) 264 FCR 654.

^[3] Rilak v A Senior Registrar of the Family Court of Australia at Sydney [2018] HCATrans 101 at lines 576-579. See also Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2016] HCA 41; (2016) 91 ALJR 1 at 8 [22]; [2016] HCA 41; 338 ALR 360 at 367; Dimitrov v Supreme Court of Victoria (2017) 92 ALJR 12 at 17 [19]; [2017] HCA 51; 350 ALR 191 at 196.

^[4] [1995] HCA 58; (1995) 184 CLR 163 at 179. See also Plaintiff S288/2017 v Honourable Justice Jayne Margaret Jagot (unreported, High Court of Australia, 30 August 2018) per Gordon J.

^[5] [2019] HCA 34.

^[6] AYF16 v Minister for Immigration and Border Protection (2018) 264 FCR 654 at 657 [11].

^[7] BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 at [10].

^[8] AYF16 v Minister for Immigration and Border Protection [2017] FCCA 1487 at [15]- [16], [19]-[21].

^[9] AYF16 v Minister for Immigration and Border Protection (2018) 264 FCR 654 at 657 [10].

^[10] AYF16 v Minister for Immigration and Border Protection (2018) 264 FCR 654 at 657-658 [12]-[14]. See BEG15 v Minister for Immigration and Border Protection [2018] HCATrans 80; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252; 363 ALR 599.

^[11] AYF16 v Minister for Immigration and Border Protection (2018) 264 FCR 654 at 657 [11].

^[12] [2017] FCAFC 176; (2017) 257 FCR 111.

^[13] [2019] HCA 34.

^[14] [2017] FCAFC 176; (2017) 257 FCR 111.

^[15] [2019] HCA 34.

^[16] [2017] FCAFC 176; (2017) 257 FCR 111.

^[17] [2019] HCA 34 at [35].

^[18] [2019] HCA 34.

^[19] [2019] HCA 34.

^[20] [2019] HCA 34 at [34].

^[21] [2017] FCAFC 176; (2017) 257 FCR 111 at 134 [53].

^[22] AYF16 v Minister for Immigration and Border Protection (2018) 264 FCR 654 at 665 [37].