CPZ16 & Ors v Minister for Home Affairs & Ors

[2020] HCATrans 31

[2020] HCATrans 031

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M107 of 2019

B e t w e e n -

CPZ16

First Plaintiff

CQB16

Second Plaintiff

CQC16

Third Plaintiff

CQE16

Fourth Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL COURT

Third Defendant

FEDERAL CIRCUIT COURT

Fourth Defendant

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 18 MARCH 2020, AT 9.39 AM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   On 5 September 2019, the plaintiffs filed an application for a constitutional writ and other relief.  For the reasons that I now publish, I would dismiss the application.  I direct that those reasons be incorporated into the transcript.

The orders are:

1.The application is dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

2.The plaintiffs pay the first defendant’s costs of the application.

I publish those orders.

The first and second plaintiffs are citizens of Sri Lanka; the third and fourth plaintiffs are their children.  In June 2014, a delegate of the first defendant refused the plaintiffs’ applications for protection visas.  The second defendant affirmed the delegate’s decision in August 2016.

In September 2016, the plaintiffs sought judicial review of the second defendant’s decision in the Federal Circuit Court of Australia.  The plaintiffs failed to appear at the hearing, and the application was dismissed.  An application by the plaintiffs to reinstate the proceeding was refused[1], and, in August 2019, the third defendant dismissed an application by the plaintiffs for leave to appeal from that decision[2].

[1]CPZ16 v Minister for Immigration [2018] FCCA 2251.

[2]CPZ16 v Minister for Home Affairs [2019] FCA 1204.

The plaintiffs apply in the original jurisdiction of this Court for constitutional writs in respect of:

1. the decision by the second defendant on 19 August 2016 to affirm the decision of the delegate of the first defendant to refuse to grant the plaintiffs protection visas under the Migration Act 1958 (Cth);

1. the decision of the fourth defendant made on 23 August 2018 refusing to reinstate the plaintiffs’ application for review of the second defendant’s decision after that application had been dismissed by reason of the plaintiffs’ failure to attend the hearing of that application; and

1. the decision of the third defendant made on 2 August 2019 refusing leave to appeal from the decision of the fourth defendant.

The plaintiffs, in the present application to this Court, do not articulate any basis on which jurisdictional error may be discerned in the reasons of any of the defendants.  That this should be so is hardly surprising, given that, in the proceedings before the third defendant, the Court received submissions by “amici curiae” to the effect that the plaintiffs had no “reasonably arguable ground of appeal”[3].

[3]CPZ16 v Minister for Home Affairs [2019] FCA 1204 at [32].

In any event, the application for judicial review of the second defendant’s decision is out of time[4].  The plaintiffs’ application does not articulate any basis on which an extension of time should be granted.

[4]See s 486A of the Migration Act. See also r 4.02 and r 25.02 of the High Court Rules 2004 (Cth).

In the circumstances, pursuant to r 25.09.1 of the High Court Rules 2004 (Cth), the plaintiffs’ application should be dismissed. The plaintiffs must pay the first defendant’s costs of the application.

AT 9.40 AM THE MATTER WAS CONCLUDED