Plaintiff M100-2005 v MIMIA

[2006] HCATrans 69

[2006] HCATrans 069

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M100 of 2005

B e t w e e n -

PLAINTIFF M100 OF 2005

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

THE REFUGEE REVIEW TRIBUNAL

Second Defendant

Summons

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 FEBRUARY 2006, AT 10.01 AM

Copyright in the High Court of Australia

MR.C.J. HORAN:   May it please the Court, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   There is no appearance, Mr Horan.  Perhaps I should stand it down.  It is only for a short while.

MR HORAN:   If your Honour pleases.

AT 10.01 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 10.29 AM:

HER HONOUR:   Yes, no appearance.

MR HORAN:   Your Honour, there is a summons with an affidavit of Brian Wee sworn 14 February 2006.

HER HONOUR:   Yes.

MR HORAN:   In addition your Honour should have an affidavit of Brian Wee sworn 17 February 2006 in which it is deposed that the plaintiff has been contacted by telephone and confirmed that he was aware that the application was being heard today.

HER HONOUR:   Yes, thank you.

MR HORAN:   As appears from the affidavit material, the decision of the Refugee Review Tribunal in this case was made on 21 May 2004.  Proceedings were then commenced in the Federal Magistrates Court on 11 June 2004 and were dismissed on 27 July 2005 and the plaintiff filed this application in this Court on 18 August 2005, so that the delay between the Tribunal’s decision and these proceedings is approximately 15 months.  Again, the Tribunal’s decision was based upon a finding that the applicant was not a credible witness and a rejection of most, if not all, of the claims that were put forward before the Tribunal.  The dismissal of the previous proceedings in the absence of any prospects of success, in my submission, requires the application for an extension of time to be refused, and

accordingly I submit that the Court should dismiss the application with costs.

HER HONOUR:   Yes, thank you.

On 18 August 2005 the plaintiff commenced proceedings in the original jurisdiction of the Court seeking relief directed to a decision of the Refugee Review Tribunal made on 21 May 2004. 

The plaintiff arrived in Australia on 15 April 2003 and made an application for a protection visa on 8 May 2003.  A delegate of the Minister refused that application on 22 August 2003 and the plaintiff sought review of this decision by the Refugee Review Tribunal.  On 21 May 2004 the Tribunal affirmed the decision of the Minister not to grant the plaintiff a protection visa and made certain adverse findings in respect of the plaintiff’s credit.

On 11 June 2004 the plaintiff made an application seeking judicial review of the Tribunal decision to the Federal Magistrates Court under section 39B of the Judiciary Act 1903 (Cth). That application was dismissed by the Federal Magistrates Court on 27 July 2005. The plaintiff did not appeal to the Federal Court of Australia. The plaintiff then instituted proceedings in the original jurisdiction of this Court, which gives rise to the present application by the Minister for orders terminating the proceedings summarily.

The Minister submits that the application to this Court is made well beyond the times fixed by the Rules of Court for making application for certiorari and mandamus:  see rule 25.06.01 and 25.07.2.  Having regard to the course of events which I have described, no case is made for extending time within which certiorari or mandamus should be granted and that, because of the relief which the plaintiff would seek in the proceedings is necessarily premised upon the grant of certiorari to quash the decision of the Tribunal, the proceedings which the plaintiff has instituted are bound to fail. 

The availability of prohibition depends upon whether the impugned decision of the Tribunal is liable to be quashed by granting certiorari.  As Justice McHugh held in Re Ruddock; Ex Parte Reyes (2000) 177 ALR 484 at 488 paragraph [23], prohibition would not issue to the Minister to prohibit her from removing the applicant because, so long as the Tribunal’s decision remains intact, it is the Act which prescribes the consequences which would follow in respect of an unlawful non-citizen.

Therefore the critical question in the present matter is whether any extension of time of time should be granted.  The time fixed by the Rules of Court as the times within which the application must be made for the grant of certiorari or mandamus are times which are fixed having regard to the fact that the writs which it is sought to have issued are directed at the acts or decisions of public bodies or officials.  As Justice McHugh remarked in Re Commonwealth; Ex Parte Marks (2000) 177 ALR 491 at 495 paragraph [15]:

‘the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.’

His Honour also said in that decision at 496 paragraph [16]:

‘The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court.  In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.’

In the present case, relief is sought 9 months out of time in the case of certiorari and 13 months out of time in the case of mandamus.  It may be that the expiration of so long a time is of itself sufficient reason to refuse extension of time, save in the more exceptional cases.

In this case, where the plaintiff has already once resorted to the judicial power of the Commonwealth by making application to the Federal Magistrates Court for relief of the very kind sought from this Court, and given further that the proceedings in the Federal Magistrates Court have been prosecuted to a conclusion and not made the subject of any subsequent challenge by way of appeal, no ground is shown for granting an extension of time within which the present application, insofar as it seeks certiorari or mandamus, may be brought.  There was no appearance by the plaintiff on this hearing.

Insofar as the plaintiff would seek other relief from this Court, in particular the issue of prohibition, the grant of that relief is premised upon the quashing of the decision made by the Tribunal.  Given that no case has been made out for extending the time within which application may be made for certiorari to quash the decision of the Tribunal, it would follow that the basis for the grant of any other relief cannot be established.  In all the circumstances, it is clear that the proceedings which the plaintiff has instituted must fail.  Accordingly, I order that the proceedings stand dismissed, with costs.

AT 10.37 AM THE MATTER WAS CONCLUDED