FEDERAL COURT OF AUSTRALIA

Patel v Minister for Immigration and Citizenship (No 2) [2012] FCA 1020

FEDERAL COURT OF AUSTRALIA

Patel v Minister for Immigration and Citizenship (No 2) [2012] FCA 1021

CORRIGENDUM

1.    These reasons for judgment are to be read with the reasons for judgment in Patel v Minister for Immigration and Citizenship (No 4) [2012] FCA 1170.

Associate:    

Dated:        25 October 2012

THE COURT ORDERS THAT:

The application be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 4 November 2011 the appellant in this proceeding applied for the following interlocutory orders:

1.    Pursuant to rule 36.11 that the appellant have leave to re-open the argument in the appeal limited to the relevance of the High Court decision of Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32 (31 August 2011) to the issues before the Court;

2.    Directions to allow both parties to the appeal to agitate the issues raised by that High Court decision;

3.    Such further or other order as the court considers appropriate;

4.    The Costs of an (sic) incidental to this application be reserved.

2    The application for the time and date for hearing, and the place of hearing, were nominated as being “On the papers, in Chambers”.

3    On 9 November 2011 the Deputy District Registrar wrote to the parties. In that letter the Deputy District Registrar said, inter alia:

As indicated in my letter of 8 November 2011, her Honour proposes to determine the interlocutory application in chambers based on brief written submissions provided by the parties. To this end the parties are directed to submit within 1 week from today, brief written submissions (limited to 3 pages) supporting their position in this regard. I would be grateful if the parties could provide an electronic version of their submissions directly to her Honour’s associate.

4    On 16 November 2011 written submissions were filed on behalf of the Minister opposing any order granting leave to the appellant to re-open argument in respect of issues arising pursuant to the decision of the High Court in Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32.

5    No written submissions were filed on behalf of the appellant, either within the week directed by the Deputy District Registrar, or at all.

6    On 4 September 2012 I delivered judgment in this proceeding (Patel v Minister for Immigration and Citizenship [2012] FCA 958), and dismissed the appeal. As, however, I did not deal in that judgment specifically with the interlocutory application filed 4 November 2011 it is appropriate to do so now.

7    The proper order is that the interlocutory application be dismissed. I form this view for the following reasons.

8    First, the appellant did not make any submissions in support of the interlocutory application. Indeed, the facts before the Court support a finding that the appellant simply abandoned the interlocutory application. No communications have been received by the Court from the appellant in respect of this application. No explanation for the omission to file submissions has been received. While each case must be judged on its own facts, this is not a case where there has been a failure by the appellant to comply with the directions of the Court but the matter could be otherwise resolved (cf, for example, Davidova v Murphy [2009] FCA 601 at [38]). To that extent, it is proper that the application be dismissed for want of prosecution.

9    Second, in the absence of exceptional circumstances the Court will not normally grant leave to make further submissions once a case has been fully argued and the decision reserved. As Heydon J observed in Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318 at 330:

Parties to matters before the Court need to understand that, once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submissions within a short period of the hearing ordinarily seven to fourteen days. But a party has no legal right to continue to put submissions to the Court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing.

10    In this case the appellant filed an interlocutory application for an order that the appellant have leave to re-open argument in the appeal limited to the relevance of the High Court decision in Plaintiff M70/2011, but without any explanation failed to file any submissions in support of that application. It follows that no exceptional circumstances have been demonstrated to warrant the grant of leave sought.

11    Finally, and in any event, no grounds have been substantiated demonstrating the relevance to the appellant’s appeal of the decision of the High Court in Plaintiff M70/2011. Indeed, as French CJ observed in relation to that case:

1.    These proceedings involve legal issues which arise in a strongly contested area of public policy. The public policy contest relates to the way in which Australia deals with non-citizens who enter its territory by sea without visas and invoke Australia's protection obligations under the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) (“the Refugee Convention”).

2.    Courts exercising federal jurisdiction, for the last two decades in particular, have had to decide many judicial review applications in respect of administrative decisions affecting asylum seekers. Some of their decisions, including decisions of this Court, have had practical consequences for the implementation of government policy. It is the function of a court when asked to decide a matter which is within its jurisdiction to decide that matter according to law. The jurisdiction to determine the two applications presently before this Court authorises no more and requires no less.

3.    These applications are brought in the Court's original jurisdiction under ss 75(iii) and 75(v) of the Constitution. The plaintiffs, who are citizens of Afghanistan, arrived at the Australian territory of Christmas Island on 4 August 2011 in a boat designated SIEV 258, which had sailed to Australia from Indonesia. They each claim to have a well-founded fear of persecution in Afghanistan on grounds that would, if established, make them “refugees” to whom Australia owes protection obligations pursuant to the Refugee Convention. A refugee is any person who, according to Art 1.A(2) of the Refugee Convention:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being ... outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

(Footnotes omitted.)

12    The facts in Plaintiff M70/2011 bear no resemblance to the appellant’s case, nor is there any commonality in the applicable legislative provisions. In the absence of submissions from the appellant, it was (and remains) completely unclear to me how the decision in Plaintiff M70/2011 is of any relevance.

Associate:

Dated:    17 September 2012