Applicant M5-2005 v MIMIA & Ors

[2006] HCATrans 67

[2006] HCATrans 067

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M5 of 2005

B e t w e e n -

APPLICANT M5/2005

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

NORMA FORD, MEMBER REFUGEE REVIEW TRIBUNAL

Second Defendant

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Third Defendant

Summons

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 FEBRUARY 2006, AT 9.37 AM

Copyright in the High Court of Australia

__________________

APPLICANT M5/2005 appeared in person.

MR R.C. KNOWLES:   If your Honour pleases, I appear for the first defendant.  (instructed by Clayton Utz)

HER HONOUR:   You appreciate you require an extension of time to proceed in this matter.  What I might do is allow the Minister’s counsel to speak first and you can listen and then I will give you an opportunity to reply, so if you would like to sit down for a moment.  Yes, Mr Knowles.

MR KNOWLES:   Thank you, your Honour.  A summons has been filed in this matter on 16 November last year.  I move on that summons that the matter be dismissed by reason of it being out of time and that no enlargement of time is warranted.  In that regard, your Honour, I rely on the affidavit of Tom Mosby dated 16 November last year.

HER HONOUR:   Yes, I have read that.

MR KNOWLES:   Thank you, your Honour.

HER HONOUR:   I take it from the papers that the Minister has a level of confidence anyway that there was an application for review in the Federal Magistrates Court?

MR KNOWLES:   Yes, your Honour.  There was an application, it is submitted, in the Federal Magistrates Court.  It was filed on 12 May 2003.  That application is found at exhibit TBM2 of Mr Mosby’s affidavit.

HER HONOUR:   Yes.  That was followed by a notice of discontinuance of those proceedings.

MR KNOWLES:   Soon thereafter, that is right, your Honour, on 10 June 2003.

HER HONOUR:   Yes.

MR KNOWLES:   What transpires, and your Honour may have had an opportunity to consider the correspondence which followed that and particularly the correspondence from the plaintiff in the last exhibit to Mr Mosby’s affidavit, that is exhibit TBM9, the plaintiff’s position is that while he may have signed certain documents he was unaware of what they were and as a result the Federal Magistrates Court proceeding was initiated without his full knowledge of what in fact was taking place.

Your Honour, the first defendant does not take a position in relation to whether or not that in fact is the case.  Essentially, irrespective of the prior Federal Magistrates Court proceeding it is submitted that the delay is so significant that in the circumstances of this case no enlargement of time ought to be granted and the matter ought to be dismissed.

HER HONOUR:   Yes, thank you for that.

MR KNOWLES:   Is there anything further I can assist your Honour with?

HER HONOUR:   There is nothing further, Mr Knowles, and I thank you for that.  If you stand now, and you will have heard that it has been said that there was an application for review in the Federal Magistrates Court but your position is that you signed some papers without appreciating what they were for.

APPLICANT M5/2005:   Yes, your Honour.

HER HONOUR:   You are able to confirm that.  Then, the next thing that is said is that you are out of time.  You have not applied within the correct time.  Do you wish to say anything to me in relation to that aspect of the case?

APPLICANT M5/2005:   Yes, your Honour, because when I was told about this only by my agent which I was not aware that I had no time for this application.

HER HONOUR:   When was that?

APPLICANT M5/2005:   That was somewhere in September last year, somewhere around May.

HER HONOUR:   Could you just move a bit closer to the microphone?  So, September last year?

APPLICANT M5/2005:   That is around May, your Honour.  It was around May when he told me that I had to apply and that he had run short of time which I was not aware of it.

HER HONOUR:   Yes.  Anything else?

APPLICANT M5/2005:   And that he had applied to the Minister.

HER HONOUR:   Yes, you wrote to the Minister.

APPLICANT M5/2005:   I did not speak.  My agent had spoken to the Minister on my behalf which I was not aware because I wanted this to go to the Federal Courts and he wanted me to sign some…..documents which – they were blank documents – and he had sent it to Sydney for signature which - I have never been to Sydney, since I have been in Australia for the last five years I have never been to Sydney.  The JP…..it was from Sydney.

HER HONOUR:   Yes, anything else?

APPLICANT M5/2005:   And for the moment I would like to state, your Honour, that when my hearing was heard the last time at the RRT – at that time there was no problems in Sri Lanka and then they were – you know, believed in what I said and now there is problems again in Sri Lanka and I fear that I would be persecuted and that I will have more troubles when I get back.

HER HONOUR:   Yes, anything else?

APPLICANT M5/2005:   Yes, and I have not seen my family for the last five years – my wife and my two children.  I am missing them also and I would ‑ ‑ ‑

HER HONOUR:   Yes, very well.  You can take you seat now, thank you.

On 7 January 2005 the plaintiff filed an application in the original jurisdiction of this Court for an order to show cause seeking certiorari, prohibition, mandamus and an injunction or declaration in respect of the decision of the Tribunal made on 25 March 2003 affirming the decision of a delegate of the Minister not to grant the plaintiff a protection visa.

The plaintiff arrived in Australia on 28 December 2000 and made an application for a protection visa on 8 February 2001.  A delegate of the Minister refused that application and the plaintiff sought review of this decision on 12 March 2002 by the Refugee Review Tribunal.  On 25 March 2003 the Tribunal affirmed a decision of the Minister not to grant the applicant a protection visa.

It appears that on 12 May 2003 the plaintiff filed an application for review of the Tribunal decision in the Federal Magistrates Court of Australia. A notice of discontinuance in relation to this proceeding was filed on 10 June 2003. The plaintiff, however, says that he signed relevant documents without appreciating their import. Following this the plaintiff wrote to the Minister requesting that the discretion pursuant to section 417 of the Migration Act 1958 (Cth) to substitute the decision of the Tribunal with a more favourable decision for public interest reasons be exercised in his case. The Minister refused the plaintiff’s request. The plaintiff then instituted proceedings in the original jurisdiction of this Court which gave rise to the present application.

The Minister now applies for orders terminating the proceeding summarily.  The Minister submits that the application to this Court is made well beyond the times fixed by the Rules of Court for making application for certiorari and mandamus:  see rule 25.06.01 and 25.07.2.  The Minister submits that having regard to the course of events which I have described no case is made for extending time within which certiorari or mandamus should be granted.  Furthermore, since other relief which the plaintiff would seek in the proceedings is necessarily premised upon the grounds of certiorari to quash the decision of the Tribunal, the proceedings which the plaintiff has instituted are bound to fail.

The availability of prohibition and injunction depends upon whether the impugned decision of the Tribunal is liable to be quashed by granting certiorari:  for example, see Re Ruddock and Others; Ex parte Reyes (2000) 177 ALR 484 per Justice McHugh. Accordingly, the critical question in the present matter is whether any extension of time should be granted.

As Justice McHugh remarked in Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 at 495, paragraph [15]:

‘[Constitutional or prerogative] writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.’

His Honour also said in that decision at 496, paragraph [16]:

‘The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court.  In all but very exceptional cases they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.’

In the present case relief is sought 15 months out of time in the case of certiorari and 19 months out of time in the case of mandamus.  The plaintiff asserts his agent did not tell him about the need to apply until September 2005.  That does not make this an exceptional case.  It is arguable that the expiration of so long a time is of itself sufficient reason to refuse extension of time, save in more exceptional cases.

Further, it appears that the plaintiff in this case has already resorted to the judicial power of the Commonwealth by making application to the Federal Magistrates Court for relief of the same kind sought from this Court by the proceeding instituted here, and that proceeding was discontinued.  Accordingly, insofar as the present application seeks certiorari or mandamus no ground has been shown for granting an extension of time within which the application might be brought.

Insofar as the plaintiff would seek other relief from this Court, in particular the issue of prohibition, an injunction or a declaration, the grant of that relief is premised upon the quashing of the decision made by the Tribunal.  Given that no case has been made out for extending the time within which application may be made for certiorari to quash the decision of the Tribunal, it would follow that the basis for the grant of any other relief cannot be established.

In all the circumstances, it appears that the proceedings which the plaintiff has instituted are proceedings which must fail.  That being so, rather than remit them to another court for hearing and determination it is preferable that they be brought to an end in this Court now.  Accordingly, I will order that the proceedings stand dismissed.

Is there an application for costs?

MR KNOWLES:   There is, your Honour, yes.

HER HONOUR:   It is inevitable that they must be dismissed with costs.  An order for costs is therefore made.  Thank you.

MR KNOWLES:   If your Honour pleases.

AT 9.49 AM THE MATTER WAS CONCLUDED