Plaintiff M148-2006 v MIMA & Anor

[2007] HCATrans 20

[2007] HCATrans 020

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M148 of 2006

B e t w e e n -

PLAINTIFF M148/2006

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 2 FEBRUARY 2007, AT 10.00 AM

Copyright in the High Court of Australia

MR I.G. HONE:   If your Honour pleases, I appear for the plaintiff.  (instructed by Hymans)

MR W.S. MOSLEY:   If your Honour pleases, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, thank you. 

MR MOSLEY:   Your Honour, in that matter your Honour will have the plaintiff’s application for an order to show cause together with the summons and an affidavit all dated, I think, 1 December 2006, and a three paragraph outline of submissions filed by the plaintiff.  From the first defendant’s position, your Honour should have the summons together with the affidavit of my instructor, Maria Ngo, both sworn on 29 January 2007, and an affidavit of service of Melissa Harvey of 30 January 2007. 

Your Honour, the matter is out of time as far as the prerogative writs are concerned.  The issue is that the outcome of the first defendant’s summons in which – I should take you to that.  The summons seeks that the matter be dismissed on the basis that the application for an extension of time should be refused as it is outside the relevant time limits ‑ ‑ ‑

HER HONOUR:   Has this plaintiff had access to the judicial power of the Commonwealth?

MR MOSLEY:   Yes, your Honour.  The background is this, that the plaintiff is a national of Afghanistan who arrived in 1999.  He sought a protection visa which was refused by the delegate.  The Refugee Review Tribunal then affirmed that decision in a decision handed down on 20 July 2004.  The applicant then commenced judicial review proceedings in the Federal Magistrates Court.  Those proceedings were discontinued ‑ ‑ ‑

HER HONOUR:   The plaintiff filed a notice of discontinuance?

MR MOSLEY:   Yes, your Honour.  The Minister filed a motion seeking dismissal on the basis that the application was not filed within time.  The applicant then filed a notice of discontinuance in the Federal Magistrates Court proceedings and proceeded with the application in this Court.  The matter therefore has not been the subject of determination in the Federal Magistrates Court or judicial review in the Federal Magistrates Court.  Unless your Honour was satisfied that the making of the application would be sufficient to preclude the applicant from seeking relief in this Court, the outcome of the first defendant’s summons is in some ways dependent upon the judgment of the Court in Bodruddaza in which your Honour was a member of the Full Bench. 

The application for the order to show cause was made outside the time prescribed in section 486A.  The decision therefore is that the validity of that section and Bodruddaza is central to the determination of this matter.  Unless your Honour was prepared to dispose of it on the basis which I have put to your Honour, that the applicant has already sought and commenced judicial review proceedings in the Federal Magistrates Court, I do not know whether I can say much more than that about this matter, your Honour.

HER HONOUR:   It is probably better for me to hear from Mr Hone and you can reply to what he has to say.  I dare say he will explain matters to me.

MR MOSLEY:   Yes, your Honour.

HER HONOUR:   Very well.  It is a very long time delay, Mr Hone – two years, I think.

MR HONE:   It is, your Honour.  The substance of that is the subject of an affidavit that was filed in the Federal Magistrates Court proceedings and in essence it is a matter of the plaintiff having received legal advice from his then solicitors to pursue intervention by the Minister outside the judicial process rather than to seek review of either this Court or the Federal Magistrates Court.  Your Honour, after a considerable period of time the plaintiff changed lawyers and at that stage received some advice that the prudent course would in fact be to pursue the judicial option and that was done promptly thereafter by way of the issue of the proceedings in the Federal Magistrates Court.

Your Honour, I have not been involved in the matter prior to Tuesday of this week and I have had some difficulty getting clear instructions from the plaintiff due to language issues but, as I understand the situation, the plaintiff’s legal advice at the time of withdrawing the matter in the Federal Magistrates Court was essentially to the effect that there was a constitutional issue that fundamentally needed to be determined and it was appropriate to bring the matter into this Court rather than pursue the matter further in the Federal Magistrates Court. 

Your Honour, there is a considerable period of delay.  There is no doubt about that, but it is not an unusually long period in the context of migration matters and it is one that comes about by reason of the plaintiff pursuing other legitimate courses that were open to him and advised to him by his legal advisers at the time.  Your Honour, the issue that is the subject of the reserved judgment in Bodruddaza is fundamental to the issue before you today because it is a prior question.

HER HONOUR:   One option perhaps is to stand the matter out of the list pending a decision in that matter.

MR HONE:   That would be the course I would urge upon your Honour.  As I say, Bodrudazza raises an issue which, in my submission, is a threshold issue in terms of jurisdiction and it ought properly to be left for determination by the Full Court handing down its decision in that matter and then it may be that the news would be bad for the plaintiff and ‑ ‑ ‑

HER HONOUR:   It is the least expensive option in some ways, is it not?

MR HONE:   Absolutely, your Honour.  I mean, it does entail some delay, of course, but, in my submission, it would be better that such delay be entailed than that the plaintiff be pushed through the interlocutory process then only to find, possibly, that the decision in Bodruddaza is fatal to him.

HER HONOUR:   Yes, very well.  Mr Mosley, that does seem an option, does it not, in all of these circumstances, perhaps stand the matter out of the list with no other orders?

MR MOSLEY:   Yes, if your Honour disposed it to pursue that, we do not object to that course being followed.

HER HONOUR:   Yes, you do not object to that.  Well, I will just stand it out of the list generally so that it will be up to the plaintiff to exercise some initiative in relation to bringing the matter back on if that were an appropriate course, Mr Hone.

MR HONE:   If it can be brought back on on seven days notice or something.

HER HONOUR:   Yes, very well.  I will stand this matter out of the list on the basis that if it is to be reinstituted the plaintiff is to give the respondent seven days notice.  I make no other orders.

AT 10.10 AM THE MATTER WAS ADJOURNED