MZABB v Minister for Immigration and Border Protection

[2015] HCATrans 78

[2015] HCATrans 078

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M20 of 2015

B e t w e e n -

MZABB

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 14 APRIL 2015, AT 9.30 AM

Copyright in the High Court of Australia

MR T.B. GOODWIN:   If the Court pleases, I appear on behalf of the first defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   There is a submitting appearance for the second defendant.  Now, has your side heard anything from the applicant, Mr Goodwin?

MR GOODWIN:   No, your Honour.  My instructor forwarded by express post the submissions filed by the first defendant and the notice of listing that had been issued by the Court last Friday to the address listed on the application, but we have heard nothing from the plaintiff, your Honour. 

HIS HONOUR:   Perhaps we should call the plaintiff?

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Thank you.  Mr Goodwin, what do you say I should do?

MR GOODWIN:   Your Honour, the Minister seeks to proceed in the absence of the plaintiff on the merits of the application, if that is convenient to your Honour.

HIS HONOUR:   Yes.  I have looked, Mr Goodwin, and read your outline of submissions.  I have read the applicant’s outline of submissions.  Is there any matter to which you think my attention should be drawn in the matter?

MR GOODWIN:   Nothing in particular, your Honour.  Ultimately, the Minister’s submission is that the application should be refused because it is without merit on a number of bases as outlined in the written submissions.  Unless there is anything I can be of assistance with.

HIS HONOUR:   I need not trouble you further.  Thank you, Mr Goodwin. 

On 3 March 2015, the applicant commenced proceedings in this Court by filing an application for an order to show cause directed to the Minister for Immigration and Border Protection and the Refugee Review Tribunal.  The application sought prohibition directed to the Minister precluding the Minister from taking any further step in reliance on the decision of the Refugee Review Tribunal made on 10 February 2014.  It sought certiorari directed to the Tribunal to quash the decision of the Tribunal and it sought mandamus directed to the Tribunal that the Tribunal give further consideration according to law to the matters to which the decision relates.

In accordance with the rules, at the time of filing the application for an order to show cause, the plaintiff filed a summons for directions and that summons for directions comes on for hearing today.  The Minister appears by counsel.  The Tribunal has filed a submitting appearance, but the plaintiff does not appear and is not represented. 

The proceeding which the plaintiff has commenced in this Court was begun well after the times fixed by section 486A of the Migration Act 1958 (Cth) and the times fixed by rules 25.06.1 and 25.07.2 of the High Court Rules 2004 (Cth). The circumstances in which that occurred can shortly be described as follows. As the application for an order to show cause reveals, the Tribunal, on 10 February 2014, affirmed the decision of a delegate of the Minister to refuse to grant the plaintiff a Protection (Class XA) visa.

After that decision by the Tribunal the plaintiff applied to the Federal Circuit Court for judicial review of the decision.  On 10 September 2014, the Federal Circuit Court, Judge McGuire, dismissed that application under rule 13.03C(1)(c) of the rules of that court which provide, in effect, for dismissal of proceedings where the applicant does not appear to prosecute the application.  Judge McGuire in the Federal Circuit Court rejected what he treated as the plaintiff’s request for an adjournment of the proceedings in that court.  That request for adjournment was inferred from the plaintiff having filed, shortly before the day fixed for hearing, a certificate that he was unwell.

Being dissatisfied with the decision of the Federal Circuit Court, the plaintiff sought leave to appeal against that decision to the Federal Court of Australia.  On 10 February 2015, Justice Davies of that court dismissed the plaintiff’s application for leave to appeal.  Justice Davies rejected what she took to be a further request for adjournment made by the plaintiff.  Again, the request for adjournment was inferred from the plaintiff filing with the court a certificate to the effect that he was too unwell to attend court.

In the proceeding which he has instituted in this Court, the plaintiff alleges as the grounds on which the relief is claimed that the Federal Court “should have interfered with that exercise of power by the Federal Circuit Court, as the exercise of the discretion to refuse the adjournment application had miscarried.  The medical certificate stated that I, the applicant, had a medical condition and was unfit for work.  I was dependent upon my general practitioner explaining why my medical condition prevented me from attending the hearing.  It is unfair and unjust to blame this on me, the applicant, when I was reliant upon my general practitioner to fully explain my condition.  The court should have taken judicial notice that it is common practice for general practitioners to describe someone who is ill as suffering from a medical condition without going into great detail, as it might be infringing their privacy.”

The plaintiff advances no arguable ground of complaint against either the decision of the Federal Circuit Court, or the decision of Justice Davies.  In form, of course, the plaintiff’s application does not seek relief in respect of the decision of either court, but the grounds which he advances in his application for an order to show cause are framed, as appears from the passage I have set out above, in a way which suggests that he would seek to complain about the course that was taken in those courts.

If regard is had only, however, to the decision of the Tribunal, which is the decision which, in form, his application seeks to impugn, not only does his application reveal no claim founding relief of the kind which he now seeks, there is, so far as I have been able to detect, no arguable basis for any claim that the decision of the Tribunal would ground relief of the kind which he would seek in this Court.

In these circumstances, the application which the plaintiff has made in this Court should stand dismissed.  Mr Goodwin.

MR GOODWIN:   Your Honour, the Minister seeks the usual order for his costs.

HIS HONOUR:   The costs of the application should follow the event.  Accordingly, the order is application dismissed with costs.  Adjourn the Court.

AT 9.42 AM THE MATTER WAS CONCLUDED