SZVZH v Minister for Immigration and Border Protection & Ors [2021] HCATrans 213 (9 December 2021)

Last Updated: 13 December 2021

[2021] HCATrans 213

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S85 of 2021

B e t w e e n -

SZVZH

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL CIRCUIT COURT OF AUSTRALIA

Third Defendant

FEDERAL COURT OF AUSTRALIA

Fourth Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO SYDNEY

ON THURSDAY, 9 DECEMBER 2021, AT 9.29 AM

Copyright in the High Court of Australia

____________________

HIS HONOUR: Pursuant to rule 25.09.1, I dismiss the application for a constitutional or other writ with costs. I publish my reasons and I direct that those reasons be incorporated into the transcript.

The plaintiff is an Iranian citizen who arrived in Australia as an irregular maritime arrival in July 2012. He applied for a protection visa. That application was refused by a delegate of the Minister for Immigration and Border Protection.

After the delegate’s decision, the plaintiff purported to convert from Shia Islam to Christianity. He subsequently applied to the Administrative Appeals Tribunal for review of the delegate’s decision. Before the Tribunal one of his claims was to fear that, if returned to Iran, he would be persecuted because of his conversion. Disbelieving the genuineness of his conversion, the Tribunal affirmed the delegate’s decision.

The plaintiff then commenced judicial review proceedings in the Federal Circuit Court of Australia. His three grounds of review to the Circuit Court all concerned the manner in which the Tribunal had dealt with his claim to fear persecution on the basis of his conversion. Judge Cameron dismissed the application, holding that the plaintiff had not established that the Tribunal’s decision was affected by jurisdictional error: SZVZH v Minister for Immigration and Border Protection & Anor [2017] FCCA 2648.

The decision of Judge Cameron was given on 31 October 2017. On 18 December 2017, the plaintiff sought an extension of time in which to file a notice of appeal in the Federal Court. His three proposed grounds of appeal in the Federal Court mirrored the grounds of review put to the Federal Circuit Court.

On 6 June 2018, Gleeson J dismissed the application for an extension of time. In respect of the plaintiff’s three proposed grounds of appeal, her Honour found that the first was “doomed to fail”, the second had “no prospects of success” and the third was “hopeless”. Her Honour concluded that it would therefore be futile to grant the extension sought regardless of the adequacy or otherwise of the plaintiff’s explanation for delay: SZVZH v Minister for Immigration and Border Protection [2018] FCA 896.

Lacking any avenue of appeal from Gleeson J’s decision, by an application for a constitutional or other writ filed on 11 June 2021, the plaintiff seeks in this Court’s original jurisdiction declarations that the Federal Court’s decision, the Federal Circuit Court’s decision and the Tribunal’s decision were each made contrary to law, and a writ of prohibition restraining the first respondent and his officers, delegates, agents or employees from acting upon or giving effect to any of those three decisions.

To the extent that the application seeks to challenge the decisions of the Tribunal and the Federal Circuit Court on grounds mirroring the three grounds of review in the Federal Circuit Court and the three proposed grounds of appeal to the Federal Court, the application constitutes an abuse of process for reasons sufficiently expressed in Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at 678 [13]-[14]; 297 ALR 560 at 563.

To the extent that the application seeks to challenge the discretionary decision of Gleeson J in the Federal Court, it is sufficient to record that the written argument of the plaintiff provides no basis for thinking that Gleeson J’s decision was affected by error – let alone an error going to jurisdiction.

The plaintiff’s application for a constitutional or other writ requires a significant extension of time. In an affidavit accompanying his application, the plaintiff deposes that the application was filed out of time because he was not aware of the applicable time limit. The delay is not otherwise explained.

Given that the application is wholly lacking in merit, it would be futile to grant an extension of time even if the plaintiff were able to establish an acceptable reason for the delay. The application will be dismissed with costs.

AT 9.30 AM THE MATTER WAS CONCLUDED