MZYSP v Minister for Immigration and Citizenship & Anor

[2012] HCATrans 264

[2012] HCATrans 264

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M85 of 2012

B e t w e e n -

MZYSP

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, 24 OCTOBER 2012, AT 9.30 AM

Copyright in the High Court of Australia

MR R.C. KNOWLES:   Your Honour, if it pleases the Court, I appear for the first defendant in this matter.  (instructed by Clayton Utz Lawyers)

HER HONOUR:   Yes, thank you.  Perhaps we will call the matter outside.

MR KNOWLES:   If your Honour pleases.

COURT CLERK:   No appearance, your Honour.

HER HONOUR:   Yes, thank you.  Yes, Mr Knowles.

MR KNOWLES:   Thank you, your Honour. Your Honour should have a summons filed on 11 October 2012. I seek to move on that summons which is supported by an affidavit of Mr Ben Petrie dated 10 October 2012. Now, obviously the plaintiff has not appeared today. Nonetheless, I do seek to proceed with having the summons heard and determined pursuant to rule 13.03 of the Rules and the reasons for doing that, your Honour, is that the plaintiff has knowledge of the matter coming on today before the Court. The plaintiff has, as of yesterday, sent a letter and an attached medical certificate and my instructing solicitors in which it was said that the plaintiff was unable to attend due to illness, and in particular in the medical certificate ‑ ‑ ‑

HER HONOUR:   Just one moment.  Yes, thank you, Mr Knowles.

MR KNOWLES:   Thank you, your Honour. 

HER HONOUR:   I have seen that medical certificate.

MR KNOWLES:   Your Honour has seen that medical certificate?

HER HONOUR:   Yes, I have, and I have seen the response, thank you.

MR KNOWLES:   Yes, thank you, your Honour.  In short, the Minister’s opposition to any adjournment request arising from the medical certificate is based on two things; one, that the medical certificate does not provide a satisfactory explanation for the inability to attend today, but perhaps more fundamentally that, in any event, the application for an order to show cause is without merit.  In essence, your Honour will have seen an outline of submissions that has been filed by the first defendant in this matter and from that ‑ ‑ ‑

HER HONOUR:   Yes, I have read that.

MR KNOWLES:    ‑ ‑ ‑ your Honour will be aware of the position advanced by my client.  Essentially the application to this Court made by the plaintiff is out of time and, having regard to the history of proceedings in the Federal Magistrates Court and the Federal Court, it is submitted that no extension of time ought to be granted.

HER HONOUR:   Yes.

MR KNOWLES:   For two reasons in that regard.  Firstly, because the bringing of proceedings in the Federal Magistrates Court and the Federal Court it does not provide any adequate explanation for the delay and then seeking to challenge the same decision in this Court some nine months after it was made.  When I say “the same decision”, of course I am referring to the decision of the Refugee Review Tribunal handed down on 16 November 2011. 

But the second reason, your Honour, is that the relief sought by the applicant in the application filed in this Court is sought on the basis of grounds which are the same as those which were advanced in the Federal Magistrates Court and the Federal Court and which were rejected in each of those courts.

HER HONOUR:   Yes.

MR KNOWLES:   Now, they are the submissions that I seek to make in short compass.  They are outlined in more detail in the written submissions with supporting authorities.  The authorities that are cited, your Honour, essentially involve similar circumstances to those which arise in the present case, where somebody resorts to bringing proceedings in this Court after – and I should say in the original jurisdiction of this Court – after having sought to challenge a decision, the same decision in other courts elsewhere, unsuccessfully. 

HER HONOUR:   Yes.

MR KNOWLES:   Unless there is anything further I can assist your Honour with, that was all I wished to submit in respect of this matter.

HER HONOUR:   Thank you, Mr Knowles.

MR KNOWLES:   Thank you, your Honour.  Sorry, your Honour, there actually is one further point that I should raise, and that is that there is an affidavit of service which I would seek to file for the sake of completeness in respect of service of the summons and affidavit.

HER HONOUR:   Yes.

MR KNOWLES:   If I could hand that up to your Honour.  It is an affidavit of Ms Jessica Louise Straube dated 22 October 2012.  I just do that for the sake of completeness.  One thing I should alert your Honour to is that the address that was listed on the application for an order to show cause was 9 Close Street, Truganina, Victoria.  The summons and affidavit were first posted to that address on 11 October 2012. 

Then subsequently, although that was the address that was given on the application, the summons and affidavit were also posted on 16 October 2012 to another address which bore some similarity to that address which had been used by the plaintiff in other proceedings in the Federal Magistrates Court and the Federal Court.  That address was 9 Craig Close, Truganina. 

HER HONOUR:   Yes.

MR KNOWLES:   I just bring that to your Honour’s attention for the sake of completeness.

HER HONOUR:   Yes, thank you for that.  Thank you, Mr Knowles.

On 30 August 2012, the plaintiff, a citizen of India, 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 11 November 2011 and handed down on 16 November 2011. The plaintiff made his application more than eight months outside of the 35 day time limit for applications to the High Court imposed by section 486A(1) of the Migration Act 1958 (Cth) (“the Act”). The application was also made outside of the time limits for applications for certiorari and mandamus imposed by rules 25.06.1 and 25.07.2 of the High Court Rules 2004 (Cth) (“the Rules”).

On 11 October 2012, the first defendant filed a summons seeking to have the plaintiff’s application dismissed on the basis that it was made out of time and in circumstances where the necessary extension of time should be refused. That summons is supported by affidavit material, including an affidavit of service. The second defendant, the Tribunal, has filed an appearance submitting to any order the Court may make save as to costs. The first defendant acknowledges that this Court has the power to grant an extension of time under both the Act and the Rules but submits that no extension should be granted, where, as in this case, the plaintiff has come to the High Court only after first seeking judicial review in the Federal Magistrates Court and the Federal Court of Australia.

The plaintiff applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision on 1 December 2011.  On 14 May 2012, Federal Magistrate Turner dismissed the plaintiff’s application.  The plaintiff appealed to the Federal Court of Australia on 28 May 2012.  On 7 August 2012, Justice North dismissed the plaintiff’s appeal.  The grounds and arguments advanced by the plaintiff in his application for an order to show cause are the same as those considered and rejected by the Federal Magistrates Court and the Federal Court of Australia. 

The plaintiff has not appeared today.  The Court has received by facsimile transmission a medical certificate indicating that the plaintiff “will be unfit to attend Court today”.  No application has been made for an adjournment.  In any event, such an application would have been refused for the same reasons for refusing the application for the necessary extension of time, which follow. 

It would not be in the interests of justice either generally or in this particular case to grant the necessary extension of the time for the commencement of these proceedings.  The plaintiff has had resort to the judicial power of the Commonwealth and has not succeeded.  There is nothing to suggest that the plaintiff plans to advance some new or different basis of challenge beyond the grounds heard and determined in the Federal Magistrates Court and in the Federal Court of Australia. 

The order of the Court is that the plaintiff’s application for an order to show cause filed on 30 August 2012 be dismissed with costs. 

MR KNOWLES:   If your Honour pleases.

HER HONOUR:   Thank you, Mr Knowles.

AT 9.44 AM THE MATTER WAS CONCLUDED