MZXGE & Ors v MIMIA

[2006] HCATrans 212

[2006] HCATrans 212

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M20 of 2006

B e t w e e n -

MZXGE, MZXGF AND MZXGG

Plaintiffs

and

THE HONOURABLE AMANDA VANSTONE, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

MR PETER KATSAMBANIS IN HIS CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 27 APRIL 2006, AT 11.59 AM

Copyright in the High Court of Australia

__________________

MZXGE appeared in person.

MR C.J. HORAN:   Your Honour, I appear for the first defendant.  (instructed by Phillips Fox)

HIS HONOUR:   Mr Interpreter, you are here to assist one of the applicants, is that right?

THE INTERPRETER:   That is correct, your Honour.

HIS HONOUR:   Yes.  Yes, Mr Horan.

MR HORAN:   Again, my principal submission is that this matter has been filed outside the time prescribed by section 486A, the application being filed on 1 March 2006 seeking review of a Tribunal decision dated 21 November 2005.  Although it is a relatively short period in this case between the Tribunal’s decision and the present date, in the interim there have been proceedings commenced in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision which were dismissed by Federal Magistrate O’Dwyer on ‑ ‑ ‑

HIS HONOUR:   On the merits?

MR HORAN:   On the merits but on ‑ ‑ ‑

HIS HONOUR:   After argument?

MR HORAN:   I believe after argument, although the applicant being unrepresented – he was represented, I am instructed, your Honour, by a solicitor.

HIS HONOUR:   Can I just turn out what we have about the Federal Magistrates Court proceedings, do you mind, Mr Horan?  Could you direct me to where I can most conveniently find what exhibits we may have about that subject?

MR HORAN:   There is an affidavit, I think of ‑ ‑ ‑

HIS HONOUR:   I do not think there is any material from your side of the record, is there?

MR HORAN:   No.  In that case, your Honour, the position in relation to the Federal Magistrates Court proceedings is the orders have been made dismissing the application but reasons have not yet been published.  The matter was listed under the current procedures in the Federal Magistrates Court for – there is an initial stage at which the matter is returned for directions and the proceeding goes through two stages:  a show cause hearing and a final hearing.

At the hearing of the application for an order to show cause the court has power to dismiss the application if it is not satisfied that an arguable case has been raised, and that was the basis upon which Federal Magistrate O’Dwyer proceeded.

HIS HONOUR:   Am I right in understanding you do not have a summons in this matter?

MR HORAN:   I think that is right, your Honour.

HIS HONOUR:   I think I am right but I just want to be sure.  All we have, I think, is the plaintiff’s summons for directions, is that right?

MR HORAN:   Yes, that is right, your Honour.

HIS HONOUR:   That being so – this is the first directions hearing – and the Minister not having on an application to dispose of it, what am I to do?

MR HORAN:   I think all I could say, your Honour, is that the applicant is required to demonstrate an arguable case and also to address any issue arising under the time limits imposed by section 486A.  Whether that is done today or on a subsequent occasion, ultimately the Minister’s submission is that those hurdles are insurmountable.

HIS HONOUR:   I understand that.  Should I though stand it over so that you can put on an application which reveals for the applicant exactly what and why – what you seek and why you seek it, so that he may know what case he has to meet.  I understand that you may say, not without force, it is his case, he has to make it, he has to demonstrate it.  I understand that, but, at the end of the day, I just wonder whether it may not be more comfortable if he knows precisely what you say is wrong with the proceeding, why you say it, and then has a chance to seek advice about that.

MR HORAN:   Yes.  It may also be that that would give an opportunity to the Federal Magistrates Court to publish reasons for the disposition of the earlier proceedings which would, I think, assist this Court in dealing with the present application.

HIS HONOUR:   Yes.  My reaction, Mr Horan – and I will be interested to know if you have something further to say about it – is stand it out of the list generally to be refixed at a time when you have put on some material that tells the plaintiff, “This is what we want, this is why we want it, what is your answer?”  That is my inclination, but what do you want to say?

MR HORAN:   I have nothing further to say against that course, your Honour.

HIS HONOUR:   Yes.  Mr Interpreter, would you be good enough to explain to the plaintiff I am going to adjourn the case today.

THE INTERPRETER:   Yes, your Honour.

HIS HONOUR:   He will be told when it is fixed again for hearing.  It is likely that the Minister will apply to dismiss the proceedings next time and if that is to be done the Minister will serve some papers, will give him some papers saying what the Minister wants and why the Minister says she is entitled to it.  It will be important for the plaintiff to recognise that he will have to come along to answer those suggestions and if he is going to look for any advice or help, he should start doing that now because when the Minister comes back again, which is what I expect, he will have to be able to deal with that then.  So the case will be adjourned but it does not mean that he should forget about it.  He has to keep thinking about how he is going to make out his case.

Mr Horan, is there anything else that you consider I should say directly to the plaintiff, other than what I have said?

MR HORAN:   No, your Honour.

HIS HONOUR:   Yes.  The order will be stand it out of the list generally to be refixed on not less than seven days notice in writing to the opposite parties.  Costs will be reserved. 

Is there anything else I need to do, Mr Horan?

MR HORAN:   No, your Honour.

HIS HONOUR:   Thank you, Mr Interpreter.  Thank you for coming.

AT 12.09 PM THE MATTER WAS ADJOURNED