MZYYU v Minister for Immigration and Border Protection

[2014] HCATrans 221

[2014] HCATrans 221

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M19 of 2014

B e t w e e n -

MZYYU

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for an order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 OCTOBER 2014, AT 9.35 AM

Copyright in the High Court of Australia

MR B. PETRIE:   May it please the Court, I appear for the first defendant. (instructed by Clayton Utz Lawyers).

HER HONOUR:   Thank you, Mr Petrie.

MR PETRIE:   Your Honour, I have not seen the plaintiff in the Court vicinity and I am not sure if he will be appearing.

HER HONOUR:   Should we perhaps call the matter?

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Yes, thank you, Mr Petrie, I have had the benefit of your outline of submissions.

MR PETRIE: Yes, and I should just say for completeness, notwithstanding the plaintiff’s non‑appearance today, the first defendant does seek to proceed pursuant to rule 13.03.02 of the Rules.

HER HONOUR:   Am I right to assume you are a member of counsel, Mr Petrie?

MR PETRIE:   No, your Honour, I am the solicitor advocate.

HER HONOUR:   Thank you.

MR PETRIE:   As your Honour notes, the first defendant has filed written submissions in opposition to the application for an order to show cause.  In addition, the first defendant has filed an affidavit sworn by Ms Elizabeth Tan on 2 October 2014.  Does your Honour have a copy of that affidavit?

HER HONOUR:   Yes, I do, thank you.

MR PETRIE: In short compass, your Honour, the application to this Court is significantly out of time under section 486A of the Migration Act and rules 25.06.1 and 25.07.2 of the Rules. Relevantly, the grounds of review that he seeks to agitate before this Court are precisely the same as those that the plaintiff agitated before the Federal Circuit Court and the Federal Court. A history of those proceedings is set out in the affidavit of Ms Tan. In my submission, your Honour, having regard to the history of those other proceedings, there is no basis to extend time and the application should also be dismissed in reliance on the various doctrines of estoppel stated in the first defendant’s submissions. Subject to any questions your Honour has, there is nothing really further that I can add that is not already in the first defendant’s submissions.

HER HONOUR:   In the written submissions, yes.  Thank you, Mr Petrie.

MR PETRIE:   If the Court pleases.

HER HONOUR:   Thank you, Mr Petrie. 

On 17 March 2014, the plaintiff, a citizen of Sri Lanka, 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 18 May 2012. By its decision the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa. The plaintiff made his application in the original jurisdiction of this Court more than a year 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 limit 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”).

The plaintiff applies for an extension of time within which to bring the proceedings.

The first defendant sought to have the matter determined today, notwithstanding no appearance by the plaintiff when the matter was called on for hearing.  The second defendant, the Tribunal, has filed an appearance submitting to any order the Court may make, save as to costs.

By its written submissions, the first defendant acknowledges that this Court has the power to grant an extension of time under both the Act (s 486A(2)) and the Rules, but submits that no extension should be granted where, as in this case, the plaintiff seeks relief in the original jurisdiction of the High Court after having sought judicial review in the Federal Magistrates Court of Australia and the Federal Court of Australia.

The first defendant relies on the statement of relevant principles made by McHugh J in Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470; 177 ALR 491. By reference to those principles the first defendant submits that this case is not exceptional. It has also submitted that the plaintiff has not advanced any proper explanation for delay because the plaintiff’s explanation for delay is that he was resorting otherwise to the judicial power of the Commonwealth.

The plaintiff applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision on 22 June 2012.  On 31 January 2013, Burchardt FM dismissed the plaintiff’s application.  The plaintiff appealed to the Federal Court on 18 February 2013.  On 19 February 2014, Bromberg J dismissed the plaintiff’s appeal.  No application for special leave to appeal was made by the plaintiff to this Court in respect of that decision.

The arguments advanced by the plaintiff in his application for an order to show cause are essentially the same as those considered and rejected by the Federal Magistrates Court and the Federal Court.  It would not be in the interests of justice, either generally or in this particular case, to grant an extension of time as required for the continuation 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.  In all of the circumstances, it is appropriate to dismiss the plaintiff’s order to show cause.

The order of the Court is the plaintiff’s application for an order to show cause filed on 17 March 2014 is dismissed with costs.

AT 9.43 AM THE MATTER WAS CONCLUDED