Mataka v Minister for Immigration and Citizenship

[2015] HCATrans 168

[2015] HCATrans 168

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S205 of 2012

B e t w e e n -

JONE VUNIWAI MATAKA

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for order to show cause

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 28 JULY 2015, AT 9.30 AM

Copyright in the High Court of Australia

MS D.J. WATSON:   Your Honour, I appear for the defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Now, Ms Watson, there is no appearance, it would seem, from the plaintiff.  Do I take it there has been no communication by the plaintiff since the date of your affidavit?

MS WATSON:   That is correct, your Honour.  I have actually prepared a more recent affidavit which indicates the position as of yesterday.

HER HONOUR:   Thank you, Ms Watson.  I might just have the plaintiff called outside the Court.

MS WATSON:   Thank you, your Honour.

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Thank you.  Yes, Ms Watson.

MS WATSON:   If I could have leave to file in Court an affidavit of Dale Jennifer Watson affirmed on 27 July 2015?

HER HONOUR:   Yes, you have that leave.  I will just read that, Ms Watson.  Yes, I have read that material.  Ms Watson, you move on your summons filed on 6 July 2015?

MS WATSON:   I do, your Honour.  The only additional order that I would be seeking to those that are set out in the summons is an order amending the name of the defendant.  The proceedings are so old that it predates the present iteration of the Minister, so it should be “Minister for Immigration and Border Protection”.

HER HONOUR:   Yes, I will make that order substituting “Minister for Immigration and Border Protection” as defendant for the defendant as named.

MS WATSON:   Thank you, your Honour.

HER HONOUR:   You rely, Ms Watson, on ‑ ‑ ‑

MS WATSON:   I rely on the affidavit that was filed on 6 July 2015.

HER HONOUR:   Yes.

MS WATSON:   I have also filed some short submissions just outlining the history of the matter.

HER HONOUR:   Yes.

MS WATSON:   As your Honour will see, the proceedings commenced in mid-2012 and effectively no active steps have been taken by the plaintiff since that time.

HER HONOUR:   Yes, I have seen that material, Ms Watson.  Thank you for those submissions.  It is not necessary to hear further from you.

This is an application to dismiss the application for an order to show cause filed on 31 July 2012 with costs.  There is no appearance by the plaintiff.

The plaintiff claims orders including certiorari to quash the decision of the defendant’s delegate made on 29 July 2010 refusing to grant him an Extended Eligibility Temporary Entry Permit (Subclass 812) and mandamus to compel the defendant to determine his application for what is described as an Extended Eligibility Temporary Entry Permit (Subclass 812) visa according to law.  The plaintiff has taken no step in the proceedings since filing the application. 

The defendant relies on the affidavits of Dale Jennifer Watson filed on 6 July 2015 and today.  The first affidavit discloses that the plaintiff sought a review of the impugned decision before the Migration Review Tribunal.  A copy of the Tribunal’s decision affirming that of the delegate is exhibited to the affidavit.  The Tribunal concluded that the plaintiff was unable to satisfy one of the prescribed criteria for the entry permit for which he had applied.  Having regard to the plaintiff’s circumstances, in particular the length of time the plaintiff has spent in Australia and his level of integration within the Australian community, the Tribunal referred his case to the Department so that it might be brought to the Minister’s attention.

On 13 August 2013, the Department of Immigration and Border Protection initiated a ministerial intervention request on the plaintiff’s behalf for possible consideration under section 351 of the Migration Act 1958 (Cth) of the power to substitute a decision of the Tribunal with a more favourable decision. That application was determined adversely to the plaintiff and he was notified of that determination by letter dated 1 April 2015.

Thereafter, by letter dated 19 May 2015, the solicitors acting for the defendant notified the applicant, in light of his failure to take any steps in the proceeding in accordance with the High Court Rules 2004 (Cth), of the Minister’s intention to move the Court for an order dismissing the application. On 24 July 2015, a further letter was sent by post addressed to the plaintiff at his address for service enclosing the submissions filed on the defendant’s behalf in the proceedings in support of the relief claimed in its summons.

Ms Watson has not had any communication with the plaintiff since the commencement of the proceedings.  Correspondence sent to his address for service has not been returned in the post.  Ms Watson has confirmed that the most recent address for the plaintiff held by the Department of Immigration and Border Protection is the address nominated as his address for service in these proceedings.

There is nothing before the Court to support the making of the orders claimed.  It is appropriate to make the orders sought in the defendant’s summons.  The application for an order to show cause is dismissed with costs.

Thank you, Ms Watson.  The Court will now adjourn.

AT 9.40 AM THE MATTER WAS CONCLUDED