CEE15 v Minister for Immigration and Border Protection & Anor

[2018] HCATrans 200

[2018] HCATrans 200

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M99 of 2018

B e t w e e n -

CEE15

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 3 OCTOBER 2018, AT 9.41 AM

Copyright in the High Court of Australia

MR C.J. TRAN:   Your Honour, I appear on behalf of the first defendant.  (instructed by Sparke Helmore)

HIS HONOUR:   Thank you.

MR TRAN:   If this matter could be called outside.

COURT OFFICER:   No appearance by the plaintiff, your Honour.

MR TRAN:   Your Honour, if I could tender an email which includes the postal letter by which we served the defendant’s materials upon the plaintiff.

HIS HONOUR:   Thank you.

MR TRAN:   Your Honour will see there is an email and behind it is the postal service.

HIS HONOUR:   Exhibit 1D1 – email of 14 September 2018 and attached letter from Sparke and Helmore, Solicitors, to the plaintiff.

MR TRAN:   Thank you, your Honour.  Otherwise I am content to rely upon my written submissions filed on 14 September and for the reasons therein we say the application should be dismissed with costs.

HIS HONOUR:   Thank you.

I note at the outset that there is no appearance for the plaintiff and that there is a submitting appearance for the second defendant.

This is an application for an extension of time within which to file an application for order to show cause why certiorari should not go to quash the decision of the second defendant, the Tribunal, of 6 March 2015, why mandamus should not issue to the Tribunal to require it to reconsider its decision and why prohibition should not issue to prevent the first defendant, the Minister, his Department or its employees and agents, from taking any further steps in reliance on the Tribunal’s decision.

The Tribunal had affirmed the decision of the Minister’s delegate of 22 January 2014 to refuse the plaintiff’s claim for a Protection (Class XA) visa.  On 21 October 2015, the plaintiff filed in the Federal Circuit Court of Australia an application for an extension of time to file an application for judicial review of the Tribunal’s decision on grounds variously expressed that the Tribunal had erred in not giving consideration to the evidence relating to the plaintiff’s circumstances.  The plaintiff’s application for judicial review was 193 days out of time. 

On 14 November 2017, Judge McNab dismissed the application for extension of time on the basis that the plaintiff had not provided a satisfactory explanation for the delay and that the plaintiff’s application for judicial review did not disclose an arguable case for the relief sought.

On 30 January 2018, the plaintiff filed, in the Federal Court of Australia, an application for extension of time to appeal to that court. There was a single proposed ground of appeal being that the decision of the Federal Circuit Court was affected by jurisdictional error. On 30 May 2018, Justice Flick dismissed the application for an extension of time for reasons including that the plaintiff’s proposed appeal was not competent because of section 476A(3)(a) of the Migration Act 1958 (Cth). The plaintiff had not satisfactorily explained his delay in filing his application in the Federal Court. The manner in which Judge McNab resolved the application for an extension of time in the Federal Circuit Court exposed no self‑evident appealable error. The plaintiff’s proposed ground of appeal raised no reason to question the correctness of Judge McNab’s decision and there remained no reason to question Judge McNab’s reasons for judgment regarding the substantive issues of the application for judicial review.

The plaintiff’s application for order to show cause is substantially out of time and it would be futile to grant an extension of time.  There is no reason to doubt the correctness of the judgment of the Federal Circuit Court or the judgment of the Federal Court and the plaintiff advances no reason to doubt the correctness of the Tribunal’s affirmation of the delegate’s decision.  Accordingly, the application is dismissed with costs.

AT 9.46 AM THE MATTER WAS CONCLUDED