Plaintiff S211a/2018 & Ors v Honourable Justice Roger Marc Derrington & Ors [2019] HCATrans 27 (26 February 2019)

Last Updated: 26 February 2019

[2019] HCATrans 027

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S211 of 2018

B e t w e e n -

PLAINTIFF S211A/2018

First Plaintiff

PLAINTIFF S211B/2018

Second Plaintiff

PLAINTIFF S211C/2018

Third Plaintiff

PLAINTIFF S211D/2018

Fourth Plaintiff

and

HONOURABLE JUSTICE ROGER MARC DERRINGTON

First Defendant

HONOURABLE JUSTICE GEOFFREY ALAN FLICK

Second Defendant

MINISTER FOR HOME AFFAIRS

Third Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Fourth Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 FEBRUARY 2019, AT 10.05 AM

Copyright in the High Court of Australia

____________________

HIS HONOUR: In these matters the orders that I make are as follows:

1. The applications to extend the time prescribed for the filing of the application for an order to show cause by s 486A of the Migration Act 1958 (Cth) and r 25.02.2 of the High Court Rules 2004 (Cth) are refused.

2. Under r 25.09.1 of the High Court Rules the application for an order to show cause is dismissed.

3. The plaintiffs are to pay the costs of the third defendant.

I publish my reasons and I direct that those reasons be incorporated into the transcript.

The plaintiffs are husband and wife; the third and fourth plaintiffs are their sons. The first and second plaintiffs have two other adult children, both daughters, one of whom, Aline, lives in Australia.

The plaintiffs applied for protection visas. Their application was refused by a delegate of the Minister for Immigration and Border Protection in March 2014. The plaintiffs then applied to the Refugee Review Tribunal for merits review of the delegate’s decision. The Tribunal invited the plaintiffs to attend a hearing on 28 October 2014 to give evidence and present arguments. The plaintiffs responded to the invitation by filling out and sending a “response to hearing invitation” form, by which they indicated that only the first plaintiff would “take part” in the scheduled hearing, and that their migration agent would also attend.

The first plaintiff and the plaintiffs’ migration agent duly attended the hearing on 28 October 2014, but so did the second plaintiff and Aline. Aline brought with her a written statement that was drafted and signed by her and also signed by the first plaintiff. The Tribunal received the statement and then sought to receive oral evidence not only from the first plaintiff, but also from the second plaintiff and Aline. All three individuals were willing to give evidence on oath and did so without raising any objection at the time.

A few days later, the Tribunal wrote to the plaintiffs to invite them to comment on certain inconsistencies in the oral evidence. In particular, the Tribunal indicated its concern that the evidence given by the second plaintiff and Aline was inconsistent with evidence given by the first plaintiff. The plaintiffs’ migration agent responded to the invitation in an email to the Tribunal which stated that the second plaintiff and Aline had attended the hearing only as “observers” and had not been given sufficient time to prepare for giving oral evidence. An attachment to the email, prepared by the first plaintiff, stated that the Tribunal had “induced” and “entrapped” the second plaintiff and Aline into giving oral evidence and that the procedure taken by the Tribunal was unfair.

On 25 November 2014, the Tribunal affirmed the delegate’s decision. In its reasons for decision then published, the Tribunal recorded that it was satisfied that it had been reasonable for it to take oral evidence from the second plaintiff and Aline.

On 13 November 2015, the plaintiffs filed an application in the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. Because that application was outside the 35 day time limit imposed by s 477 of the Migration Act 1958 (Cth), it required an order for an extension of time under that section if it was to proceed. On 29 May 2017, a judge of the Federal Circuit Court refused to make such an order. Although he accepted that the plaintiffs had provided a satisfactory explanation for their lengthy delay in filing the application, the judge considered that there was no merit, or at least insufficient merit, in either of the two grounds on which the plaintiffs sought to pursue the application for him to be satisfied that it was necessary in the interests of the administration of justice to make such an order. The two grounds were that the plaintiffs had been denied procedural fairness and that the Tribunal’s decision was irrational or illogical and failed to address the correct questions.

As to the first ground, the judge noted that the Tribunal had exercised its power under s 425 of the Migration Act to invite the plaintiffs to appear before it and that the Tribunal had power under s 427 of that Act to take evidence on oath or affirmation from a person, regardless of whether the person had previously nominated that he or she would give evidence. The judge found that it was not procedurally unfair for the Tribunal to obtain evidence from Aline in relation to a statement that she had drafted herself, that it could not be said that Aline was “unprepared” to give evidence, and that the Tribunal ultimately gave the plaintiffs an opportunity to respond to its concerns concerning the oral evidence.

On 3 July 2017, the plaintiffs applied to the Federal Court for judicial review of the decision of the Federal Circuit Court under s 39B of the Judiciary Act 1903 (Cth). Their application was heard by Flick J. At the hearing before his Honour, the plaintiffs ultimately pursued only one ground, namely, that the Federal Circuit Court had misconstrued ss 424 and 427 of the Migration Act in its assessment of whether to grant the plaintiffs an extension of time.

On 15 November 2017, Flick J dismissed the application. His Honour found no error in the Federal Circuit Court’s approach to the construction and application of s 424 or s 427 of the Migration Act and characterised the plaintiffs’ application as in essence a challenge to the exercise of the Tribunal’s discretion to call Aline as a witness. He took the view that there had been no error or procedural unfairness in the Tribunal’s exercise of this discretion. He concluded that in any event the plaintiffs’ argument did not point to an error that went to the jurisdiction of the Federal Circuit Court in deciding the application for an extension of time.

On 5 January 2018, the plaintiffs filed a draft notice of appeal in the Federal Court by which they sought to appeal from the decision of Flick J to the Full Court of the Federal Court. The ground of their proposed appeal was to the effect that Flick J and the Federal Circuit Court had erred in failing to find that the Tribunal had breached its procedural fairness obligations or acted unreasonably by taking oral evidence from Aline. Because the notice of appeal was filed outside the time limit prescribed by r 36.03 of the Federal Court Rules 2011 (Cth), the plaintiffs needed, and applied for, an extension of time. Their application was heard by Derrington J on 18 May 2018 and was dismissed by him on 8 June 2018. His Honour considered that, viewed in the context of the plaintiffs’ previous delay in bringing proceedings before the Federal Circuit Court, the length of the delay on this occasion was significant, that the plaintiffs had not given a satisfactory explanation for their delay, and that while the Minister would not be relevantly prejudiced by the grant of an extension of time, there was no merit in the proposed appeal.

On 15 August 2018, the plaintiffs filed an application for an order to show cause in the original jurisdiction of the High Court. It is that application which is now before me. By the application, the plaintiffs seek a range of relief which principally includes writs of certiorari directed to quashing the administrative decisions of the delegate and the Tribunal and directed to quashing the judicial decisions of Flick J and of Derrington J. The grounds on which that relief is sought are not easy to understand. They appear essentially to be based on a reagitation of the plaintiffs’ persistent claim that the Tribunal failed to afford them procedural fairness or acted unreasonably by taking oral evidence from Aline and on the contention that Flick J and Derrington J both fell into jurisdictional error in failing to appreciate the merits of that claim.

The application as it relates to the decisions of the delegate of the Minister and of the Tribunal was brought more than 3 years outside the 35 day time period prescribed for the filing of the application by s 486A of the Migration Act. For the application to proceed, this Court must be satisfied that it is necessary in the interests of the administration of justice for an order to be made extending the time in which the application may be filed. In relation to the writ of certiorari sought against the decision of Flick J, the applicant would also require an extension, under r 4.02 of the High Court Rules 2004 (Cth), of the time set by r 25.02.2 (previously r 25.06.1).

Insofar as the application is directed to challenging the decisions of the delegate and the Tribunal, it is plainly an abuse of process given that the decision of the delegate was the subject of merits review by the Tribunal and that an application for judicial review of the decision of the Tribunal was brought to the Federal Circuit Court and determined by that Court to be without merit. See Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676; 297 ALR 560; [2013] HCA 22. The same is true of the application insofar as it is an attempt to obtain judicial review of the decision of Flick J. To contemplate judicial review by this Court of a decision of a single judge of the Federal Court that is capable of appeal to the Full Court of the Federal Court and in respect of which an extension of time in which to appeal has been refused under the Federal Court Rules would be to contemplate a subversion of the orderly operation of the appellate process.

Insofar as the application seeks judicial review of the decision of Derrington J, it is sufficient to note that his Honour applied settled principles to reach a decision to refuse an extension of time, the correctness of which cannot be doubted. It certainly cannot be said, as the plaintiffs are required to demonstrate, that his Honour exceeded or failed to exercise his jurisdiction in refusing the extension of time.

The application does not therefore disclose any arguable basis for the relief sought by the plaintiffs. The applications for extensions of time under s 486A(2) of the Migration Act and r 4.02 of the High Court Rules are refused. The application for an order to show cause is to be dismissed under r 25.09.1 of the High Court Rules. The plaintiffs must pay the Minister’s costs.

AT 10.06 AM THE MATTERS WERE CONCLUDED