MZXLD v Minister for Immigration and Citizenship

[2012] HCATrans 229

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M3 of 2012

B e t w e e n -
MZXLD
Plaintiff
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Defendant
Summonses

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 19 SEPTEMBER 2012, AT 9.37 AM

____________________

MR D.J. BROWN: My name is Brown and I appear for the defendant in this matter. (instructed by Australian Government Solicitor)

MR K.F. TRINGAS: Your Honour, I appear on behalf of myself in this matter.

HER HONOUR: You are seeking leave to withdraw?

MR TRINGAS: That is right, yes.

HER HONOUR: Yes, thank you. Perhaps we should hear from you first, Mr Tringas, unless there is any opposition to that course.

MR TRINGAS: I have faxed an outline in my submissions to the Court.

HER HONOUR: Yes, I have seen that.

MR TRINGAS: I assume you have read my affidavit as well?

HER HONOUR: Yes, I have.

MR TRINGAS: The only thing I want to add to this outline is that I have tried on many occasions to get instructions to discontinue this proceeding, but I have not been able to do that. That is why I have had to resort to this application to withdraw as the solicitor.

HER HONOUR: I do understand the chronology, Mr Tringas. What about the fourth point in your outline of submissions? Why should there not be an order as to costs made against the plaintiff? In a sense, it will have nothing to do with you.

MR TRINGAS: I am just talking about costs for this application.

HER HONOUR: I see. You are confining it to this application.

MR TRINGAS: Yes. I am not objecting to the request for the respondent.

HER HONOUR: Yes, I see. Nothing further?

MR TRINGAS: No, that is all.

HER HONOUR: Thank you, Mr Tringas. Yes, Mr Brown.

MR BROWN: We filed a very short set of submissions in relation to this matter ‑ ‑ ‑

HER HONOUR: Yes, I have seen that, thank you.

MR BROWN: ‑ ‑ ‑which in turn related back to an affidavit that was lodged on 28 May ‑ ‑ ‑

HER HONOUR: I have read that.

MR BROWN: ‑ ‑ ‑ which sought to establish the chronology of the matter. In short order, we are seeking to have this matter finalised following on from orders made by his Honour the Chief Justice on 11 January which had, as it were, a contingent order contained therein, namely, that there were 28 days for the plaintiff to file an amended application and in the absence of that being done that the substantive matter would be dismissed, the application for an order to show cause.

That has not happened. It has not happened to date and, therefore, the Minister is seeking this matter to be finalised by a final dismissal. We are seeking costs arising since 11 January in relation to our interaction with the plaintiff’s solicitors, producing the affidavit lodged on 28 May and subsequently needing to appear at this hearing.

HER HONOUR: So costs in relation to the proceeding fixed in the sum of $2,500?

MR BROWN: Yes. There was already an order made on 11 January in the sum of $1,000.

HER HONOUR: Yes, I saw that.

MR BROWN: We are seeking additional costs beyond that for the period since then.

HER HONOUR: Yes, since 11 January.

MR BROWN: Yes.

HER HONOUR: What about Mr Tringas’s proposition that there should be no order as to costs in relation to this application?

MR BROWN: We do not oppose that, your Honour.

HER HONOUR: You do not oppose that. Thank you.

This is an application by the plaintiff’s solicitor, Mr Konstantin Tringas, for leave to withdraw as a solicitor pursuant to rule 6.02.5(c) of the High Court Rules 2004. The relevant history of this matter prior to January 2012 is set out in the judgment of Justice Murphy in MZXLD v Minister for Immigration and Citizenship [2012] FCA 5, and I need not repeat it here.

On 11 January 2012, Chief Justice French dismissed a summons filed by the plaintiff seeking an injunction to prevent the defendant from deporting him from Australia pending the hearing and determination of an application for an order to show cause. Chief Justice French ordered that the plaintiff’s application for an order to show cause dated 11 January 2012 would stand dismissed unless an amended application was filed and served within 28 days.

On 12 January 2012, the plaintiff was deported to Sri Lanka by the defendant.

On or about 7 February 2012, Mr Tringas received instructions from the plaintiff’s migration agent to file a summons seeking an extension of time in which to file an amended application for an order to show cause. Mr Tringas filed this summons on the plaintiff’s behalf on 8 February 2012.

Mr Tringas has had no contact with the plaintiff since his departure from Australia. On 7 March 2012, and again on 10 May 2012, Mr Tringas sent a letter to the plaintiff, care of the plaintiff’s migration agent, advising the plaintiff that he intended to apply for leave to withdraw as the plaintiff’s solicitor pursuant to rule 6.02.5(c) of the High Court Rules 2004. The plaintiff did not contact his migration agent or Mr Tringas in response to these letters. The plaintiff has not filed an amended application for an order to show cause.

The defendant applies to have the plaintiff’s application for an order to show cause dated 11 January 2012 dismissed on the basis that the plaintiff did not file an amended application for an order to show cause within 28 days. The defendant also applies to have the plaintiff’s summons seeking an extension of time in which to file an amended application for an order to show cause dismissed and seeks costs in the proceedings fixed in the sum of $2,500. Mr Tringas requests that there be no order as to costs in relation to his application to be removed as solicitor.

As there has been no compliance with the order made by the Chief Justice on 11 January 2012, it is an appropriate course to dismiss the application and the summons seeking an extension of time, with costs since that date.

The order of the Court is:

1.Mr Tringas have leave to withdraw as solicitor pursuant to rule 6.02.5(c) of the High Court Rules 2004, with no order as to costs on that application.

2.The plaintiff’s summons seeking an extension of time in which to file an amended application for an order to show cause dated 8 February 2012 is dismissed.

3.The plaintiff’s application for an order to show cause dated 11 January 2012 is dismissed.

4.The plaintiff to pay the respondent’s costs incurred since 11 January 2012, fixed in the sum of $2,500.

Nothing further?

MR BROWN: Thank you, your Honour.

MR TRINGAS: Thank you, your Honour.

AT 9.48 AM THE MATTER WAS CONCLUDED

The applicant, MZXLD, sought judicial review of a decision made by the Minister for Immigration and Citizenship. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter came before Crennan J of the Federal Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing the applicant's claims, had failed to properly consider or give adequate weight to certain aspects of the applicant's evidence and submissions, thereby rendering the decision legally flawed.

Crennan J's reasoning focused on the principles of administrative law, particularly the requirement for decision-makers to undertake a proper consideration of all relevant material. His Honour found that the delegate had failed to adequately address key elements of the applicant's protection claims, including specific fears of persecution. This failure amounted to a failure to exercise the power conferred by the relevant legislation, constituting jurisdictional error. The Court applied the principle that a failure to consider relevant evidence or to give it appropriate weight can vitiate an administrative decision.

Consequently, Crennan J ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established