MZYNW v Minister for Immigration and Citizenship and Anor

[2012] HCATrans 230

[2012] HCATrans 230

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M33 of 2012

B e t w e e n -

MZYNW

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 19 SEPTEMBER 2012, AT 10.30 AM

Copyright in the High Court of Australia

____________________

MS E. LATIF:   If the Court pleases, I appear for the first defendant in that matter.  (instructed by Clayton Utz Lawyers)

DEPUTY REGISTRAR:  No appearance, your Honour.

HER HONOUR:   Thank you.

MS LATIF:   Your Honour, in the circumstance where the plaintiff has failed to appear today we would seek orders that the application in the plaintiff’s summons of 30 March 2012 be dismissed and that the plaintiff pay the first defendant’s costs of and incidental to the proceedings to be taxed in default of agreement, and we would be seeking those orders pursuant to the High Court Rules, rule 13.03.2.

HER HONOUR:   Do you rely also on your outline of submissions?

MS LATIF:   Yes, your Honour.  Your Honour, I have with me an affidavit of service that I can hand up to satisfy the Court that our summons was fully served, but also the plaintiff’s summons was returnable today as well.

HER HONOUR:   Yes, thank you.

MS LATIF:   I will do that now.

HER HONOUR:   Yes, thank you.

MS LATIF:   Your Honour, the primary affidavit is the affidavit of Jessica Louse Straube which was sworn on 24 May 2012.  It forms a factual basis for finding that the first defendant’s summons and the accompanying affidavit were served by express post on the plaintiff at the address for service that appears on the plaintiff’s application and summons.

There is a second affidavit from Mr Ben Petrie, my instructor, and that is really there for completeness and is a record of all the documents that have been served on the plaintiff.  Your Honour, the first defendant submits that that forms a basis for making the orders that the first defendant seeks ‑ ‑ ‑

HER HONOUR:   That are sought in your summons.

MS LATIF:   Yes.

HER HONOUR:   Very well.  Nothing further?

MS LATIF:   No, your Honour.

HER HONOUR:   The is the return date for the hearing of a summons filed on 1 May 2012 by the first defendant, the Minister for Immigration and Citizenship, seeking orders dismissing the plaintiff’s application which will be described and a related application for an extension of time within which to file that application.  The second defendant has filed a submitting appearance.  There is no appearance today by the plaintiff in respect of the first defendant's summons. 

An affidavit has been sworn and filed on behalf of the first defendant deposing to the service of the first defendant’s summons and accompanying affidavit by express post addressed to the plaintiff at his last known address for service.  I am satisfied for the purposes of rule 13.03.1 that the first defendant’s summons was duly served on the plaintiff.

On 30 March 2012, the plaintiff, a 31-year-old citizen of Lebanon, filed an application for an order to show cause seeking constitutional writs and related relief in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 13 November 2009. The plaintiff’s application is two years and three months outside the time limit for applications to the High Court imposed by section 486A of the Migration Act 1958 (Cth) (“the Act”). The plaintiff’s application is also one year and 10 months outside the time limit for applications for certiorari imposed by rule 25.06.1 of the High Court Rules 2004, and two years and two months outside the time limit for applications for a mandamus imposed by rule 25.07.02 of the High Court Rules. Accordingly, the plaintiff also seeks an extension of time in which to file his application for an order to show cause.

The history of this matter can be stated briefly.  The plaintiff arrived in Australia on 7 March 2009 and applied for a protection visa on 17 April 2009.  On 21 July 2009, a delegate of the first defendant refused to grant the plaintiff a protection visa on the basis that the plaintiff is not a person to whom Australia has protection obligations under the Refugees Convention. 

On 14 August 2009, the plaintiff applied to the Tribunal for a review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 13 November 2009. On 11 December 2009 and 14 April 2010, the plaintiff applied to the first defendant for consideration under section 417 of the Act. These applications were refused. On 12 July 2011, the plaintiff applied to the Federal Magistrates Court for review of the Tribunal’s decision, and for an extension of time in which to bring the application.

The application was approximately 18 months outside the time limit for applications to the Federal Magistrates Court imposed by section 477 of the Act. On 16 December 2011, Federal Magistrate Whelan refused the plaintiff’s application for an extension of time on the basis that his Honour was not satisfied that the plaintiff’s application for a review was more than a thinly veiled attempt to challenge the merits of the Tribunal’s findings and decision. He was unable to discern any jurisdictional error in the Tribunal’s decision: MZYNW v Minister for Immigration and Citizenship & Anor [2011] FMCA 1035.

On 22 December 2011, the plaintiff filed a notice of appeal in the Federal Court of Australia in relation to Federal Magistrate Whelan’s decision to refuse the applicant’s application for an extension of time. On 28 February 2012, a single judge of the Federal Court, Justice Kenny, dismissed the plaintiff’s appeal as incompetent on the basis that section 476A(3) of the Act prohibits appeals to the Federal Court from judgments of the Federal Magistrates Court which, like Federal Magistrate Whelan’s judgment, make an order or refuse to make an order under section 477(2) of the Act (which deals with extensions of time). The plaintiff made no application for special leave to appeal to this Court in respect of the decision of Justice Kenny.

Section 486A of the Act, which is headed “Time limit on applications to the High Court for judicial review”, and which applies to this application, relevantly provides as follows:

(1)       An application to the High Court for a remedy to be granted in exercise of the court’s original jurisdiction in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)       The High Court may, by order, extend that 35 day period as the High Court considers appropriate if:

(a)      an application or that order has been made in writing to the High Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)     the High Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

Decisions of this Court concerning applications for extensions of time under the High Court Rules reveal considerations which are also relevant to the present application under section 486A. In Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 at 474 paragraph 15, Justice McHugh stated that, in cases where the issue of constitutional writs is sought, the public interest is engaged because the relief which is sought is:

directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

Factors relevant to an application for extension of time include not only the length of the delay and the reasons for that delay but also the prospects of success of the case sought to be advanced, and therefore the utility of advancing that case. 

In his affidavit dated 30 March 2012, the plaintiff states that he failed to comply with the 35 day time limit imposed by section 486A of the Act because he “was unaware of the time limits” and because he is “a lay person” who has “had to rely upon the advice of others in making such a complicated application.”

As to the substantive merits of the application, the plaintiff deposes as follows:  “I say that there are strong arguable grounds for me to make this application and my chances of success are very good.”  The plaintiff has not appeared today or put any material before the Court or made written submissions which show that there is an arguable case that there was an error made by the Tribunal in respect of which relief could be granted by way of constitutional writs and related relief.

The defendant has filed an affidavit dated 1 May 2012 dealing with substantive matters in support of the summons dated 4 May 2012.  The first defendant has filed a supplementary affidavit in relation to substantive matters dated 18 September 2012.  By written submissions filed on 12 September 2012, also in support of the summons of 4 May 2012, the first defendant submits that the plaintiff has failed to provide any good reason why an application for an extension of time should be granted, and that the plaintiff cannot establish an arguable case for the grant of a writ of prohibition.  The first defendant also relies on the plaintiff’s failure to appear today in further support of the first defendant’s summons. 

Having regard to the history of the matter, the conduct of the plaintiff, the length of the delay and the reasons for delay, and the failure by the plaintiff to appear today or to identify an arguable case in respect of the relief sought in his application, his related application for an extension of time must be refused with costs. It is not possible to be satisfied, as required by section 486A(2), that “it is necessary in the interests of justice” to make the orders sought by the plaintiff.

The Court orders:

1.The plaintiff’s application for an extension of time in which to file an application for an order to show cause dated 30 March 2012 is dismissed.

Are you making any application in relation to costs?

MS LATIF:   Yes, your Honour, we seek costs to be taxed in default of agreement.

HER HONOUR:   The plaintiff to pay the respondent’s costs to be taxed in default of agreement.

MS LATIF:   First defendant’s, your Honour.

HER HONOUR:   Sorry?

MS LATIF:   First defendant’s.

HER HONOUR:   Sorry, the first defendant’s costs.  Nothing further?  Thank you.

AT 10.51 AM THE MATTER WAS CONCLUDED