AKC17 v Minister for Immigration, Citizenship and Multicultural Affairs & Ors

[2019] HCATrans 173

[2019] HCATrans 173

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S133 of 2019

B e t w e e n -

AKC17

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Defendant

SECRETARY FOR THE DEPARTMENT OF HOME AFFAIRS

Second Defendant

LAUREN OF THE MINISTERIAL INTERVENTION OF THE DEPARTMENT OF HOME AFFAIRS

Third Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 30 AUGUST 2019, AT 10.19 AM

Copyright in the High Court of Australia

HER HONOUR:   For the reasons that I now publish, the application for a constitutional or other writ should be dismissed with costs.  I publish those reasons.

In matter S133 of 2019, the order of the Court is:

1.The plaintiff’s application for a constitutional or other writ filed on 2 May 2019 is dismissed with costs.

I publish that order.  I direct that the reasons as published be incorporated into the transcript.

By an application for a constitutional or other writ filed in the original jurisdiction of this Court on 2 May 2019, the plaintiff seeks judicial review of the fact that on 9 April 2019 the third defendant, an officer of the Department of Home Affairs, did not refer to the first defendant, the Minister, the plaintiff’s request for personal intervention of the Minister under s 48B of the Migration Act 1958 (Cth).

The plaintiff is a citizen of Sri Lanka.  On 10 March 2016, he applied for a Safe Haven Enterprise Class XE (“SHEV”) visa.  On 12 September 2016, a delegate of the Minister refused the plaintiff’s application.  The plaintiff applied to the Immigration Assessment Authority (“the Authority”) to review that decision.  On 12 January 2017, the Authority affirmed the delegate’s decision.  The plaintiff then filed a proceeding in the Federal Circuit Court of Australia seeking judicial review of the Authority’s decision.  On 19 September 2017, that application was dismissed:  AKC17 v Minister for Immigration and Border Protection [2017] FCCA 2282. A subsequent appeal to the Federal Court of Australia was dismissed on 6 March 2018: AKC17 v Minister for Immigration and Border Protection [2018] FCA 255. The plaintiff’s application for special leave to appeal to this Court was refused with costs by Gageler and Keane JJ on 13 September 2018.

On 4 October 2018, the plaintiff requested the Minister to use his power under s 48B of the Migration Act to intervene in his case to allow him to lodge a further SHEV application.  That request was refused on 9 April 2019 in the following terms:

“Your request was assessed against the Minister’s Guidelines - s 48A cases and requests for s 48B Ministerial intervention, however, it did not meet the Guidelines.

This request has therefore been finalised by the Department without referral.”

On 2 May 2019, the plaintiff commenced this proceeding.

Section 48B of the Migration Act confers power on the Minister to determine that s 48A of the Migration Act, which restricts a person whose application for a protection visa has been refused from making a further application for a protection visa, does not apply to a visa applicant. This power is non‑compellable and must be exercised by the Minister personally. Section 48B was considered by this Court in S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636. It is a complete answer to the plaintiff’s application.

The relief sought by the plaintiff is on four grounds which are formulated in terms substantially identical to those in previous applications that have been repeatedly dismissed by this Court over the last 12 months:  Plaintiff S28/2018 v Minister for Home Affairs [2018] HCATrans 168; Plaintiff S122/2018 v Minister for Home Affairs [2018] HCATrans 209; Plaintiff S330/2018 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 28; Plaintiff S198/2018 v Minister for Home Affairs [2019] HCATrans 35; Plaintiff S7/2019 v Minister for Home Affairs [2019] HCATrans 61; Plaintiff S53/2019 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 136; AWI16 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 137.

The reasons repeatedly given in those decisions apply equally as reasons for rejecting the same contentions in this matter.  Indeed, this is the third of three applications in substantially identical terms that have been dismissed just this morning. 

The plaintiff’s application does not disclose an arguable basis for the relief sought. The application will be dismissed with costs pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

There have now been numerous proceedings filed in this Court where the relief sought has been formulated in substantially identical terms to that sought in three matters that have just been determined. Each application has been dismissed on the same grounds. If, in the future, a writ or application is sought to be filed and on its face a plaintiff seeks relief in substantially identical terms to these earlier applications, it may be appropriate for a Registrar to seek a direction from a Justice under r 6.07 of the High Court Rules 2004 (Cth).

AT 10.20 AM THE MATTER WAS CONCLUDED