Plaintiff B34-2019 v Minister for Home Affairs & Ors

[2019] HCATrans 172

[2019] HCATrans 172

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B34 of 2019

B e t w e e n -

PLAINTIFF B34/2019

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

SECRETARY FOR THE DEPARTMENT OF HOME AFFAIRS

Second Defendant

LAUREN OF THE MINISTERIAL INTERVENTION SECTION IN THE DEPARTMENT OF HOME AFFAIRS

Third Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 30 AUGUST 2019, AT 10.18 AM

Copyright in the High Court of Australia

HER HONOUR:   For the reasons that I now publish, the application for a constitutional or other writ should be dismissed with costs.  I publish those reasons.

In matter B34 of 2019, the order of the Court is:

1.The plaintiff’s application for a constitutional or other writ filed on 11 June 2019 is dismissed with costs.

I publish that order.  I direct that the reasons as published be incorporated into the transcript.

By an application for a constitutional or other writ filed in the original jurisdiction of this Court on 11 June 2019, the plaintiff seeks judicial review of the fact that on 21 May 2019 the third defendant, an officer of the Department of Home Affairs, did not refer to the first defendant, the Minister, the plaintiff’s request for personal intervention of the Minister under s 48B of the Migration Act 1958 (Cth).

The plaintiff is a citizen of Sri Lanka.  He arrived in Australia on 27 August 2012.  He applied for a Safe Haven Enterprise visa.  A delegate of the Minister refused the plaintiff’s application.  The plaintiff applied to the Immigration Assessment Authority (“the Authority”) to review that decision.  The Authority affirmed the delegate’s decision.  The plaintiff then commenced a proceeding in the Federal Circuit Court of Australia seeking judicial review of the Authority’s decision.  That proceeding was unsuccessful:  AHV17 v Minister for Immigration and Border Protection [2018] FCCA 2433. A subsequent appeal to the Federal Court of Australia was dismissed on 13 February 2019: AHV17 v Minister for Immigration and Border Protection [2019] FCA 122.

On 6 March 2019, the plaintiff requested the Minister to use his power under s 48B of the Migration Act to intervene in his case.  That request was refused on 21 May 2019 in the following terms:

“Your request was assessed against the Minister’s Guidelines - s 48A cases and requests for s 48B Ministerial intervention, however, it did not meet the Guidelines.

This request has therefore been finalised by the Department without referral.”

On 11 June 2019, the plaintiff commenced this proceeding.

Section 48B of the Migration Act confers power on the Minister to determine that s 48A of the Migration Act, which restricts a person whose application for a protection visa has been refused from making a further application for a protection visa, does not apply to a visa applicant. This power is non‑compellable and must be exercised by the Minister personally. Section 48B was considered by this Court in S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636. It is a complete answer to the plaintiff’s application.

The relief sought by the plaintiff is on four grounds which are formulated in terms substantially identical to those in previous applications that have been repeatedly dismissed by this Court over the last 12 months:  Plaintiff S28/2018 v Minister for Home Affairs [2018] HCATrans 168; Plaintiff S122/2018 v Minister for Home Affairs [2018] HCATrans 209; Plaintiff S330/2018 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 28; Plaintiff S198/2018 v Minister for Home Affairs [2019] HCATrans 35; Plaintiff S7/2019 v Minister for Home Affairs [2019] HCATrans 61; Plaintiff S53/2019 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 136; AWI16 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 137. The reasons repeatedly given in those decisions apply equally as reasons for rejecting the same contentions in this matter. Indeed, this is the second of three applications in substantially identical terms that have been dismissed just this morning.

The plaintiff’s application does not disclose an arguable basis for the relief sought. The application will be dismissed with costs pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

AT 10.19 AM THE MATTER WAS CONCLUDED