Applicant M57-2004 & Anor, Ex parte - Re MIMIA

[2004] HCATrans 320

[2004] HCATrans 320

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M57 of 2004

In the matter of -

An application for a Declaration or for a Writ of Prohibition or for an Injunction or for orders in the nature of Certiorari or Mandamus against THE MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Ex parte –

APPLICANT M57/2004

Applicant/Prosecutor

Office of the Registry         
  Melbourne  No M58 of 2004

In the matter of -

An application for a Declaration or for a Writ of Prohibition or for an Injunction or for orders in the nature of Certiorari or Mandamus against THE MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Ex parte –

APPLICANT M58/2004

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 24 AUGUST 2004, AT 10.29 AM

Copyright in the High Court of Australia

__________________

APPLICANT M58/2004 appeared in person.

HIS HONOUR:   You are one of the applicants in these matters?

APPLICANT M58/2004:   Yes.

HIS HONOUR:   And your wife is here with you?

APPLICANT M58/2004:   Yes.

HIS HONOUR:   You are to speak on behalf of you and your wife, is that right?

APPLICANT M58/2004:   Yes.

HIS HONOUR:   Forgive me for asking this, but is your English good enough to follow what I am saying?

APPLICANT M58/2004:   Yes, I can understand it but not ‑ ‑ ‑

HIS HONOUR:   If we go slowly, we will start but, if you are having difficulty, please let me know, is that all right?

APPLICANT M58/2004:   Yes.

MR S.P. DONAGHUE:   If the Court pleases, I appear for the first respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Again, have you put on application to have the matter dismissed?

MR DONAGHUE:   Yes.  Again, there is a summons raising both the time question and the estoppel questions.

HIS HONOUR:   What is the affidavit in support on which you rely?

MR DONAGHUE:   It is an affidavit of Maria Ngo, also Bryan Wee, in this matter.

HIS HONOUR:   Those are the affidavits in each matter of 11 August 2004, is that right?

MR DONAGHUE:   That is exactly right, your Honour, yes.

HIS HONOUR:   Again, if we leave aside questions of preclusion, what do you say about time in these matters?  Can I just understand the course of events.  Am I right in understanding that the applicants arrived in Australia in July 1999?

MR DONAGHUE:   One of the applicants.  The other applicant arrived in 1997.  They arrived separately.  In M58 the husband, as I understand it, arrived in June 1997 and then the wife ‑ ‑ ‑

HIS HONOUR:   So in 1997 ‑ ‑ ‑

MR DONAGHUE:   I am sorry, January 1996.

HIS HONOUR:   Then there are applications for protection visas which are refused.  The reviews ultimately are joined together, are they not?

MR DONAGHUE:   Yes.  It all comes together.  There are decisions on the same date and then every step thereafter takes place together.

HIS HONOUR:   So in June 2000 the Tribunal affirms refusal?

MR DONAGHUE:   Yes.  The decision was made on 16 May 2000 and handed down on 2 June 2000.

HIS HONOUR:   Thereafter we have an application to the Federal Court in July 2000, dismissed September 2001?

MR DONAGHUE:   That is correct.

HIS HONOUR:   Joining in the Muin and Lie ‑ ‑ ‑

MR DONAGHUE:   About five days after the dismissal…..Muin and Lie.

HIS HONOUR:   Class actions?

MR DONAGHUE:   Yes.

HIS HONOUR:   Then May 2003 application for order nisi filed here, remitted October 2003, discontinued December 2003.

MR DONAGHUE:   That is correct.

HIS HONOUR:   Then the current proceeding is that commenced by filing an affidavit of March 2004.

MR DONAGHUE:   That is right, which is identical to the discontinued matter which was remitted earlier.  So the total delay, your Honour, I think is three years and ten months since the date when the decision was made.  The submissions I need not repeat.  They are the same submissions made stronger by the fact that this delay is substantially longer.  Again, prohibition here was sought against the Tribunal, not against the Minister, but, for the reasons your Honour just gave in the previous proceeding, it would not matter.

HIS HONOUR:   You may have heard me say to the other gentleman who appeared that the Act tells me that I cannot use your names.  I have to refer to you as M57 and M58.  I intend no discourtesy to you.  I am not trying to be rude to you; on the contrary.  But that is what the Act tells me.  The Minister says that to come to this Court you must come within a limited period of time.  Do you understand that?

APPLICANT M58/2004:   Yes.

HIS HONOUR:   The Minister says that time expired a long time ago and the Minister says you should not have any extension of the time.  We should not let the proceeding go on because it was started too late.  Do you understand?  That is what I have to decide, whether we should let the

proceeding go on when it was started as late as it was.  What do you want to tell me about why I should let you start the proceeding so late?  Do you understand?

APPLICANT M58/2004:   I have not any comments ‑ ‑ ‑

HIS HONOUR:   Very well.  I happened to see that you came into Court with a lady who was good enough to be looking after you.  If you wanted to talk to her about it, do.  Is there anything that – do come forward, madam.  I do not want to embarrass you, but if you do feel that there is anything you want to say to them or help them with, do please.

MS……….:   Your Honour, I think the applicants understand that this case will have no merit and they are expecting it to be dismissed.

HIS HONOUR:   Thank you very much.  I am sorry to have embarrassed you by calling you forward, but if an applicant has someone helping them, I am anxious that they should have the help.

MS……….:   Yes, your Honour.

HIS HONOUR:   Thank you.

For the reasons that I gave in M31/2004, I am of the opinion that the applicants’ application should be dismissed.  Insofar as they seek mandamus and certiorari, they are out of time for that application.  The course of proceedings which precedes their making application to this Court, far from warranting a grant of the extension of time that they would need, points strongly against a grant of extension of time.  Insofar as prohibition is sought, again for the reasons which I gave in matter M31/2004, I am of opinion that that application would fail.

It follows for these reasons and the reasons which I gave in matter M31/2004 that the application in each of M57/2004 and M58/2004 should stand dismissed and must be dismissed with costs.  I will certify for the attendance of counsel.

AT 10.39 AM THE MATTERS WERE CONCLUDED