Plaintiff S193-2018 v The Judges of the Federal Court of Australia & Anor [2019] HCATrans 65 (9 April 2019)

Last Updated: 11 April 2019

[2019] HCATrans 065

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S193 of 2018

B e t w e e n -

PLAINTIFF S193/2018

Plaintiff

and

THE JUDGES OF THE FEDERAL COURT OF AUSTRALIA

First Defendant

MINISTER FOR HOME AFFAIRS

Second Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON TUESDAY, 9 APRIL 2019, AT 9.30 AM

Copyright in the High Court of Australia
PLAINTIFF S193/2018 appeared in person.

MR C.L. LENEHAN: I appear for the Minister, with MR D.J. DELANY. (instructed by Australian Government Solicitor)

HER HONOUR: Thank you. I thought, Mr Lenehan, it might be of assistance if you outline what your position is. I understand that a copy of the submissions that you filed yesterday have been given to the plaintiff.

MR LENEHAN: They have, your Honour, and we have discussed it also this morning. So the Minister’s position, in essence, is that these proceedings ought be dismissed. They ought be dismissed because they no longer have any utility; there is a fresh decision which the plaintiff can challenge either here or in the Federal Court and in accordance with the usual principles, for example, Justice McHugh’s decision in Quinn, there should be no order as to costs.

HER HONOUR: Yes.

MR LENEHAN: So those are the orders we seek, your Honour.

HER HONOUR: No order as to costs?

MR LENEHAN: No order as to costs.

HER HONOUR: Yes, I understand. I will have a chat to the plaintiff. So you have received a copy of the Minister’s submissions?

PLAINTIFF S193/2018: Yes, I did.

HER HONOUR: And you understand the substance of those submissions?

PLAINTIFF S193/2018: I understand the fact that they want the matter to be dismissed but there are some things that I did not understand, the – some, yes, that I am not aware of.

HER HONOUR: I understand and I accept that. So the position is this, as I understand it, and the way Mr Lenehan and the Minister puts it is as follows: because there has been a fresh decision made now which is not the subject of this proceeding it has to be the subject of a separate application, either in this Court or in another court.

PLAINTIFF S193/2018: Yes.

HER HONOUR: That is, you are entitled to challenge it on legal grounds, having taken some advice, but you yourself will need to take a fresh step; you will have to institute separate proceedings dealing with that issue because at the moment I cannot deal with it, it is not before me.

PLAINTIFF S193/2018: I understand, your Honour. Is there a possible way of getting some legal advice first before it is dismissed? There is a barrister that is willing to show an interest in my case and

HER HONOUR: I understand. I think the best thing to do is for me to deal with the proceeding as it is at the moment and for you then to get separate legal advice about the new fresh decision in relation to that matter.

PLAINTIFF S193/2018: Sure.

HER HONOUR: Understand?

PLAINTIFF S193/2018: Yes, I do, your Honour.

HER HONOUR: Thank you. You have a seat and I shall do some short reasons for decision. I think, Mr Lenehan, in the circumstances, I will propose to give short reasons for decision so that the plaintiff understands what the position is, at least from my perspective.

MR LENEHAN: Yes, thank you, your Honour.

HER HONOUR: Thank you. Have a seat.

This matter has a long and sorry history. The plaintiff is a citizen of Bangladesh. In September 2015, the plaintiff applied for a Protection (Class XA) visa, which was refused on the basis that the plaintiff was not a refugee under s 36(2)(a) of the Migration Act 1958 (Cth). Subsequently, a reconstituted Administrative Appeals Tribunal (“AAT”) found that the plaintiff was a refugee and remitted the matter for reconsideration by the Minister.

On 4 April 2017, a delegate of the Minister gave notice of an intention to consider refusal of the plaintiff’s application for a protection visa under s 501(1) of the Migration Act. Section 501(6)(a) provided that a person does not pass the character test if that person has a substantial criminal record as defined by subs (7) including where the person has been sentenced to a term of imprisonment of 12 months or more.

On 26 April 2017, the plaintiff filed proceedings in this Court seeking interlocutory and final relief in relation to the Minister’s foreshadowed decision.

On 9 May 2017, Justice Edelman dismissed the application for an interlocutory injunction and a writ of habeas corpus and remitted the matter to the Federal Court of Australia: see Plaintiff S111/2017 v Minister for Immigration and Border Protection [2017] HCATrans 98.

On 20 July 2017, the Federal Court of Australia dismissed the matter: see [2017] FCA 813.

On 21 June 2018, the Full Court of the Federal Court of Australia dismissed an appeal from the decision: see [2018] FCAFC 92. The plaintiff did not seek special leave to appeal that decision.

Instead, on 17 July 2018, the plaintiff filed an application for an order to show cause in this Court seeking various forms of relief. That is this proceeding. It is Justice Edelman’s decision to remit the matter to the Federal Court that is the subject of the application for an order to show cause.

In the meantime, on 23 July 2018, a delegate of the Minister refused the plaintiff’s application for a Protection (Class XA) visa relying on s 501(1) of the Migration Act.

Thus, on 23 August 2018, the proceedings in this Court were adjourned pending the hearing and determination of a review of the delegate’s decision refusing the plaintiff’s application for a Protection (Class XA) visa relying on s 501(1) of the Migration Act: see XTTV v Minister for Home Affairs (No: 2018/4166).

On 15 October 2018, the AAT set aside the delegate’s decision and, in substitution, decided that the plaintiff should be granted a Protection (Class XA) visa (“the AAT decision”): see XTTV v Minister for Home Affairs [2018] AATA 3961.

On 1 November 2018, following a request for clarification, the AAT made the following direction:

“1. The decision of the Minister of Home Affairs is set aside.

2. In substitution, it is decided that the [plaintiff] should be granted a Protection (Class XA) visa.

3. The matter is remitted to the Minister for Home Affairs for reconsideration with a direction that the [plaintiff] should not be refused a Protection (Class XA) visa under section 501(1) of the Migration Act 1958 (Cth).”

On 20 and 26 February 2019, the parties appeared before this Court for directions. The Court was informed from the Bar table that the Minister had indicated that he wished to consider setting aside the AAT’s decision under s 501A of the Migration Act, with natural justice being afforded.

The plaintiff was sent a notice of intention to consider refusal on 26 February 2019, which stated that the Minister intended to consider whether to set aside the AAT decision and refuse to grant the plaintiff a protection visa under s 501A(2)(a) of the Migration Act. The plaintiff provided a response on 3 March 2019.

On 5 April 2019, the Minister decided under s 501A(2)(a) of the Migration Act to set aside the AAT decision and refuse to grant the plaintiff a protection visa on the basis that, among other things, the plaintiff did not satisfy the Minister that he passed the “character test” within the meaning of s 501(6)(a) read with s 501(7)(c) of the Migration Act.

It is against that background that the matter comes back before this Court for further directions. The Minister contends that the Court should dismiss the application under r 25.09.3(b) or, alternatively, 25.09.3(c) of the High Court Rules 2004 (Cth). Unsurprisingly, the plaintiff does not agree. He contends that the application should not be dismissed.

In the circumstances, the proceeding no longer has utility and should be dismissed under r 25.09.3(c) of the High Court Rules. The decision of the AAT set aside the refusal decision of the Minister’s delegate and the AAT made a direction that the Minister not refuse to grant the plaintiff a visa under s 501(1) of the Migration Act. But the Minister decided to exercise his power under s 501A to set aside the AAT’s decision. That matter is not before this Court. If that matter is to be litigated, it will need to be the subject of separate proceedings.

That leaves the question of costs. The Minister submits that there should be no order as to costs: see Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 625. In the circumstances, the order of the Court is as follows:

1. The application for an order to show cause dated 17 July 2018 is dismissed with no order as to costs.

Anything else, Mr Lenehan?

MR LENEHAN: If it please the Court, no, your Honour, there is not.

HER HONOUR: Anything else from you, sir?

PLAINTIFF S193/2018: Nothing further, miss – your Honour.

HER HONOUR: Thank you very much for attending. Adjourn the Court.

AT 9.41 AM THE MATTER WAS CONCLUDED