Plaintiff M140-2006 v MIMA & Anor

[2007] HCATrans 19

[2007] HCATrans 019

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M140 of 2006

B e t w e e n -

PLAINTIFF M140/2006

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for an order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 2 FEBRUARY 2007, AT 9.49 AM

Copyright in the High Court of Australia

MR W.S. MOSLEY:   If your Honour pleases, I appear for the first defendant.  (instructed by DLA Phillips Fox)

HER HONOUR:   Mr Mosley, I had better have the matter called outside.

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Thank you.

MR MOSLEY:   Your Honour will have in this matter the plaintiff’s application for an order to show cause, the plaintiff’s affidavit and, as far as the first defendant is concerned, the defendant’s summons, an affidavit in support thereof of Stella Koya and an affidavit of service of Warren Moore on the file.

HER HONOUR:   Yes.

MR MOSLEY:   In that matter the applicant is a national of Pakistan who last arrived in Australia on 24 January 2005, made a protection visa application on 4 March 2005.  That was refused by the delegate of the Minister on 5 August 2005.  The matter proceeded to the Tribunal and the applicant did not attend the hearing before the Tribunal.  The plaintiff then made an application to the Federal Magistrates Court. 

A notice of objection to competency was filed on the basis that that application was made out of time.  That was fixed for hearing together with the substantive matter before Federal Magistrate Riley on 2 November 2006.  On that date it was dismissed by the Federal Magistrate under Rule 13.03A(c) for failure of the applicant again to attend.  This is all set out in the affidavit of my instructor which your Honour will have seen.

HER HONOUR:   Yes.

MR MOSLEY:   I draw your Honour’s attention to the fact exhibit SK6 to that affidavit.  Federal Magistrate Riley in dismissing the application also directed that the first respondent notify the applicant in writing of the orders that she had made and the terms of Rule 16.05(2)(a) of the Federal Magistrate Court Rules which provide relevantly that where an order is made in the absence of a party, the court may set aside or vary that judgment.

HER HONOUR:   Yes, and there is no application to reinstitute?

MR MOSLEY:   No application was made.  I am sorry, your Honour will see SK5 is the order of Federal Magistrate Riley and SK6 is the letter from my instructing solicitor ‑ ‑ ‑

HER HONOUR:   Yes, I have that.

MR MOSLEY:   ‑ ‑ ‑ together with a copy of the relevant Federal Magistrates Court rule.  Again, your Honour, the application, in our submission, is out of time.  The application for an order to show cause is as in, I think, four of the five matters before your Honour.  The grounds identified are identical, as your Honour will have seen.

HER HONOUR:   Yes.

MR MOSLEY:   The affidavits in a number of the matters are all identical paragraph by paragraph and again we would submit that nothing is raised in that material.

HER HONOUR:   Who was the judge in the Federal Court, Mr Mosley?

MR MOSLEY:   There was not a judge in the Federal Court.  It was dismissed by Federal Magistrate Riley on 2 November.

HER HONOUR:   I see.  Was there not an appeal to the Federal Court?

MR MOSLEY:   No, your Honour, there was not in this matter.

HER HONOUR:   I see.

MR MOSLEY:   No, it is, I think, the ‑ ‑ ‑

HER HONOUR:   So it was dismissed by Federal Magistrate Riley in circumstances of non-appearance ‑ ‑ ‑

MR MOSLEY:   Yes, your Honour.

HER HONOUR:    ‑ ‑ ‑ and then there was no further appeal for a rehearing before a judge of the Federal Court?

MR MOSLEY:   No, your Honour, that is correct.  Then Federal Magistrate Riley dismissed the application on 2 November and then it was on 23 November that the plaintiff made the application to show cause in this Court, but there has been no further application ‑ ‑ ‑

HER HONOUR:   I am sorry, just give me that date again for the dismissal – I did have it in the exhibit – by Federal Magistrate Riley.

MR MOSLEY:   The orders of Federal Magistrate Riley were SK5 and the letter from my instructor is SK6.

HER HONOUR:   Yes, 2 November 2006.

MR MOSLEY:   We would seek to have the matter dismissed in light of the applicant’s non‑attendance today for want of prosecution.  We also submit that it is an abuse of process, but we perhaps do not need to go that far.

HER HONOUR:   Yes, nothing further?

MR MOSLEY:   No, your Honour, unless your Honour wishes me to take you through the material.

HER HONOUR:   Are you seeking an order for costs?

MR MOSLEY:   We seek an order for costs, yes, your Honour.

HER HONOUR:   On 23 November 2006 the plaintiff, a citizen of Pakistan, commenced a proceeding in the original jurisdiction of this Court seeking relief directed to a decision of the Refugee Review Tribunal handed down on 15 December 2005.  The plaintiff arrived in Australia on 28 January 2004 and made an application for a protection visa on 4 March 2005.  On 5 August 2005 a delegate of the first defendant refused to grant the protection visa.  The plaintiff sought review of that decision in the Refugee Review Tribunal. 

The Tribunal informed the plaintiff that it was unable to make a decision favourable to the plaintiff on the basis of the information contained in the relevant papers and so invited the plaintiff to give oral evidence at a hearing on 21 November 2005.  The plaintiff did not attend that hearing.  The Tribunal affirmed the delegate’s decision not to grant a visa in the decision handed down on 15 December 2005. 

On 11 September 2006 the plaintiff applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.  The first defendant objected to the jurisdiction of the court given that the application had been filed outside the time limit specified in the Migration Act 1958 (Cth). The hearing was set down for 2 November 2006 but the plaintiff did not appear. In those circumstances the Federal Magistrate dismissed the plaintiff’s application with costs. On 23 November the plaintiff instituted proceedings in the original jurisdiction of this Court seeking a declaration of certiorari, mandamus, prohibition and injunction.

The Minister has filed a summons seeking an order that the application be refused on a number of grounds, including that the application is an abuse of process, the application has been made outside the time specified by section 486A of the Migration Act 1958 (Cth) without an application for an extension and it is not in the interests of justice to extend such time. It has also been submitted on behalf of the Minister that in the circumstances where the plaintiff has failed to appear today that a further basis for dismissal of the application is that the plaintiff has not prosecuted his case. The application to this Court is made outside the times fixed by the Rules of Court for making an application for certiorari and mandamus: see Rule 25.06.1 and 25.07.2 and those contained in the Migration Act 1958 (Cth).

In the present case the application was made approximately 11 months after the decision of the Tribunal was handed down.  The plaintiff has already once resorted to the judicial power of the Commonwealth by making application to the Federal Magistrates Court on 2 November 2006 which was dismissed in circumstances already described by me.  There has been no appearance by the plaintiff today to explain the circumstances of his non‑attendance before the Federal Magistrate or to deal with any queries in relation to reinstitution of the matter before the Federal Magistrate or to amplify any basis upon which he might be granted an extension of time.  As the application has been made approximately 11 months after the decision of the Tribunal was handed down, the plaintiff requires such an extension.

In the circumstances described above, I decline to grant the plaintiff’s application for an extension of time and I further order that the proceedings be dismissed with costs.

AT 10.00 AM THE MATTER WAS CONCLUDED