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Plaintiff S232-2019 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [ 2019] HCATrans 219  (13 November 2019)

Last Updated: 14 November 2019

 [2019] HCATrans 219 

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S232 of 2019

B e t w e e n -

PLAINTIFF S232/2019

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

FEDERAL CIRCUIT COURT OF AUSTRALIA

Third Defendant

IMMIGRATION ASSESSMENT AUTHORITY

Fourth Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 NOVEMBER 2019, AT 9.37 AM

Copyright in the High Court of Australia

____________________

HIS HONOUR: In this matter, the orders I make are:

1. The first defendant’s name is amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

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

3. The plaintiff is to pay the first defendant’s costs.

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

On 18 July 2019, the plaintiff filed an application for a constitutional or other writ in the original jurisdiction of the High Court. By it, the plaintiff seeks a writ of certiorari quashing a decision made by the Federal Court of Australia (DNT17 v Minister for Home Affairs [2019] FCA 978) refusing to grant his application for leave to appeal from a decision of the Federal Circuit Court of Australia (DNT17 v Minister for Immigration [2019] FCCA 173) dismissing his application for reinstatement of his application for judicial review of a decision of the Immigration Assessment Authority affirming a decision of a delegate of the then Minister for Immigration and Border Protection refusing to grant to the plaintiff a Safe Haven Enterprise visa. The plaintiff also seeks a writ of certiorari quashing the decision of the Authority and a writ of mandamus directed towards the Authority requiring it to decide his application according to law.

The plaintiff is a Sri Lankan national who claimed to fear harm on the basis that he had been repeatedly threatened and had been beaten by members of the Criminal Investigation Department and the Tamil Makkal Viduthalai Pulikal (“TMVP”), who sought to recruit him and extort money from him, and who had accused him of being a member of the Liberation Tigers of Tamil Eelam (“LTTE”). The Authority found that most of the incidents he described involved attempts to extort money from him, that there was only a remote chance that he would be targeted by these men should he be returned to Sri Lanka, and that there was therefore no real chance of his being harmed.
The plaintiff sought judicial review of the Authority’s decision in the Federal Circuit Court. However, he failed to appear at a callover on 31 May 2018, at which time his application was dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). An attempt to have the application reinstated was dismissed for the reasons both that the plaintiff failed to provide a satisfactory explanation as to why he failed to attend the callover (DNT17 v Minister for Immigration [2019] FCCA 173 at [43]‑[53]) and that each of the substantive grounds on which the plaintiff sought to rely lacked merit (DNT17 v Minister for Immigration [2019] FCCA 173 at [58]‑[128]).

The decision of the Federal Circuit Court being interlocutory, the plaintiff required and sought leave to appeal to the Federal Court under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). That application was refused following a consideration of the plaintiff’s proposed grounds of appeal on the basis that those grounds lacked merit and that the plaintiff had no arguable basis to establish that the discretion of the Federal Circuit Court had miscarried: DNT17 v Minister for Home Affairs [2019] FCA 978 at [44]‑[55].

In so far as the plaintiff seeks writs of certiorari and mandamus directed to the Authority, the Minister has not argued that the plaintiff’s invocation of the original jurisdiction of this Court is an attempt to re‑litigate his failed application for judicial review to the Federal Circuit Court so as to amount to an abuse of process. Accordingly, I will consider whether his application for relief discloses any arguable basis for the jurisdictional error he asserts the Authority committed.

In his application, the plaintiff challenges a series of findings made by the Authority about his claims to be subject to ongoing persecution by the Sri Lankan authorities and the TMVP. His challenges amount to disputes about the Authority's fact‑finding and in particular its refusal to accept that the men who had targeted him had showed a continuing interest in finding him that persisted to the time of his application for a Safe Haven Enterprise visa. He argues that the Authority: failed to consider his assertion that these men had repeatedly approached and accused him of being a member of the LTTE and that due to his work and family connections to the LTTE he was at risk of being considered a member of the LTTE (grounds 1 and 3); and failed to consider country information, which he did not particularise, about the persecution of Tamils in Sri Lanka (ground 4). He also claims that the Authority failed to consider his assertion that he was constantly targeted (ground 2). These grounds amount to challenges to the merits of the Authority’s fact‑finding that fail to demonstrate an arguable basis for the proposition that it committed jurisdictional error.

The plaintiff also alleges an apprehension of bias on the part of the Authority (ground 6) because at [22] of its decision it had accepted some of the claims made during his interview (namely that the men targeting him no longer came to his home) but at [24] refused to accept the assertion made during his interview that he was at risk of being considered a member of the LTTE because his family were supporters of and involved with the LTTE. He claims this shows an arbitrary selection of facts stated prior to or at interview amounting to bias. Essentially, however, this ground also amounts to an attack on the fact‑finding of the Authority. The Authority specifically refused to accept the plaintiff’s assertions because, as it noted at [24], any information establishing a risk of being associated with the LTTE was “vital” and it therefore did not accept the plaintiff’s explanation at his interview as to why he did not reveal his risk of association with the LTTE in his application; the plaintiff’s explanation being that he believed he was only meant to talk about himself in his application. This was a finding that was reasonably open to the Authority to make.

In so far as the plaintiff seeks a writ of certiorari quashing the decision of the Federal Court, it is sufficient to state that the reasons of that Court disclose no basis for considering that it misconceived the nature of the jurisdiction it was called upon to exercise. Beyond attacks on the Authority’s findings of fact, the plaintiff does not even address the question of whether the Federal Court committed jurisdictional error.

Accordingly, the application discloses no arguable basis for the relief sought by the plaintiff.

The orders I will make are as follows:

1. The first defendant’s name is amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

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

3. The plaintiff is to pay the first defendant’s costs.

AT 9.37 AM THE MATTER WAS CONCLUDED