Dhariwal v Minister for Immigration and Citizenship & Anor

[2012] HCATrans 320

[2012] HCATrans 320

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S205 of 2011

B e t w e e n -

VINKEY DHARIWAL

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Application for order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 DECEMBER 2012, AT 11.50 AM

Copyright in the High Court of Australia

HIS HONOUR:   Please call Ms Dhariwal.

COURT OFFICER:   No appearance, your Honour.

MS L.B. BUCHANAN:   May it please the Court, I appear for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Ms Buchanan.

MS BUCHANAN:   Your Honour, if I might seek leave to file in Court two affidavits regarding attempts of service on this plaintiff?

HIS HONOUR:   Thank you.  I grant leave to the defendants to file in Court an affidavit sworn on 30 November 2012 by Freda Taah and an affidavit sworn on 29 November 2012 by Robert Wright.

On 14 June 2011, the plaintiff filed an application for an order to show cause why prerogative writs and other relief should not run. It complained that the first defendant and the second defendant and its officers had failed to observe natural justice in relation to s 351 of the Migration Act 1958 (Cth). That is a provision the plaintiff wishes to take advantage of with a view to overturning a prohibition against applying for a visa. The first defendant refused to exercise his powers under s 351.

On 7 September 2012, the High Court of Australia dismissed the applications in four representative actions being run by Parish Patience with a view to settling the position of numerous persons, including the plaintiff:  Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 86 ALJR 1019; 290 ALR 616. Those cases dealt with provisions which included s 351, and they held that those provisions were not conditional on observing the principles of natural justice.

The solicitors for the plaintiff sent to the plaintiff a letter asking the plaintiff to sign a document of instructions to discontinue this litigation in view of its lack of utility and in view of the need to avoid further costs.  The letter also said that if the plaintiff did not give those instructions the solicitors would seek to withdraw.  The solicitors have received no response to their letter, save that in October 2012 the plaintiff advised the solicitors that she was leaving Australia. 

On 15 November 2012, the defendants filed written submissions contending that the plaintiff’s application should be dismissed with costs because of the decision in the four cases referred to.  The submissions are correct.  It may be inferred that the plaintiff does not oppose these submissions.

Evidence has been filed in Court this morning stating what the last residential and postal addresses of the plaintiff known to the Department of Immigration are.  The evidence also records attempts to effect personal service on the plaintiff of documents indicating the nature of today’s application.  The process server attempted personal service.  He attempted telephonic contact more than once.  He was informed by an occupant of the house recorded as the last residential address of the plaintiff that she has gone back to India, that she had left two or three weeks ago and that she would not be back for another four to six weeks. 

It is to be inferred, in light of what the plaintiff told Parish Patience and in the light of what the occupant of her former house told the process server, that she has left Australia.  There is no reason to suppose she has a valid visa to return. 

I order that the plaintiff’s application for an order to show cause be dismissed with costs.

AT 11.55 AM THE MATTER WAS CONCLUDED