Iqbal v MIMIA & Anor

[2006] HCATrans 214

[2006] HCATrans 214

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M26 of 2006

B e t w e e n -

MUHAMMAD QAMMAR IQBAL

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Defendant

MIGRATION REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 27 APRIL 2006, AT 12.17 PM

Copyright in the High Court of Australia

MR C.J. HORAN:   If the Court pleases, I appear for the first defendant.  (instructed by Clayton Utz)

HIS HONOUR:   Mr Horan, are you aware of any appearance by or on behalf of Mr Iqbal?

MR HORAN:   No, I am not, your Honour.

HIS HONOUR:   Mr Iqbal should be called.

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Thank you.  Yes, Mr Horan.

MR HORAN:   Again, your Honour, the Minister has filed a summons seeking summary dismissal, the summons dated 5 April 2006.  There is an affidavit of Philippa Jane Mitchell sworn 5 April 2006 and then a further affidavit sworn 6 April which exhibits the reasons for decision of Federal Magistrate Phipps which were not available, I think, when the first affidavit was sworn.

HIS HONOUR:   Service is demonstrated, is it, by the affidavit of Voula Gatziouras affirmed 10 April, is that right?

MR HORAN:   Yes, that is right, your Honour, service by post.  The application seeks review of a decision of the Migration Review Tribunal on 21 November last year which affirmed a decision refusing to grant a permanent spouse visa, that is, a partner residence Class BS visa.  The present application was filed on 14 March 2006.

HIS HONOUR:   I think you need some care in the way in which you punctuate the expression “permanent spouse visa” but there we are.

MR HORAN:   Yes.

HIS HONOUR:   Yes.

MR HORAN:   That is right, your Honour.  This application was filed on 14 March 2006 which is outside the 84‑day period set by section 486A.  The plaintiff had commenced proceedings in the Federal Magistrates Court to seek review of the Tribunal’s decision, that application being filed on 12 December 2005, and was dismissed by Federal Magistrate Phipps on 21 February 2006 at the hearing of an application for an order to show cause.

His Honour pointed out essentially that the plaintiff could not qualify for the visa in question because the spouse relationship had ceased at the time of decision.  There are no particulars contained in the application setting out matters upon which the decision of the Tribunal is challenged.  Perhaps this proceeding raises a slight variation on the previous proceedings in that if my primary submission is wrong for some reason and section 486A on its proper construction or application does not preclude this Court from granting an extension of time, the decision of the Tribunal being handed down at the end of November 2005, under the time limits in the High Court Rules the applicant may still be within in at least the six‑month time limit for the seeking of certiorari.

HIS HONOUR:   If that were so, that would raise particularly the question of construction, application and validity of the provision, would it not?

MR HORAN:   It would.  I should say, particularly in relation to the question of validity, that there has not been any matter raised by the applicant by way of challenging the validity of the section and so that, in my submission, unless and until such a challenge is made, the section should be presumed to be valid and applied according to its proper construction.  Your Honour, one way around any – it may not be a way around, but one alternative ‑ ‑ ‑

HIS HONOUR:   Sometimes it helps if counsel is not particularly blunt, Mr Horan.  A possible point of view is what you were saying.

MR HORAN:   The matter can be disposed of without addressing directly the question of the time limits prescribed by section 486A on the basis that, notwithstanding the question of time, the plaintiff has failed to attend in answer to the Minister’s summons.

HIS HONOUR:   You would dismiss it for want of prosecution.

MR HORAN:   I think that is right.  The plaintiff’s summons ‑ ‑ ‑

HIS HONOUR:   This is the first return, is it not?

MR HORAN:   Yes, and as your Honour pointed out, it would then be for the plaintiff to take whatever course may be open to him in the light of that order.  Certainly, in the absence of any appearance by the plaintiff and of any specific issue being raised concerning the time limits, it is perhaps not a suitable occasion on which to give detailed consideration to those issues in this matter.

HIS HONOUR:   Yes.  The plaintiff’s application will stand dismissed for want of prosecution.  The plaintiff must pay the Minister’s costs of and incidental to the proceeding.

That, I think, concludes the list, does it not, Mr Horan?

MR HORAN:   Yes, your Honour.

HIS HONOUR:   I will adjourn.

AT 12.25 PM THE MATTER WAS CONCLUDED