Plaintiff M164-2006 v MIMA & Anor

[2007] HCATrans 21

[2007] HCATrans 021

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M164 of 2006

B e t w e e n -

PLAINTIFF M164/2006

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL 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 10.10 AM

Copyright in the High Court of Australia

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

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

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Thank you.

MR MOSLEY:   In that matter your Honour will have the plaintiff’s application for an order to show cause of 18 December 2006.

HER HONOUR:   Yes, I have that.

MR MOSLEY:   There is also an affidavit of the plaintiff affirmed on the same day.

HER HONOUR:   Yes, I have that.

MR MOSLEY:   From the first defendant’s perspective there is a summons dated 29 January, an affidavit in support sworn by my instructor, Maria Ngo, and an affidavit of service.

HER HONOUR:   Yes, I have those.

MR MOSLEY:   The background to this matter, your Honour, is the plaintiff is a national of Fiji who arrived in Australia in November 2003 and sought a protection visa in December of that year.  The application was refused by a delegate of the first defendant.  That decision was affirmed by the Refugee Review Tribunal in a decision handed down on 27 April 2004.  I interrupt myself.  These are all exhibited to the affidavit of my instructor as in the other matters.

HER HONOUR:   Yes, I have seen the material.

MR MOSLEY:   The plaintiff then applied to the Federal Magistrates Court for review of the Refugee Review Tribunal decision.  That application was dismissed by Federal Magistrate McInnis pursuant to Rule 13.03A(c) on the basis that the plaintiff had failed to attend the hearing.  The plaintiff then commenced a proceeding in this Court on 28 March of last year and on 23 August 2006 Justice Hayne dismissed that application by consent. 

I think the background was the applicant was encouraged to seek to set aside the decision of Federal Magistrate McInnis pursuant to the relevant rules which is what the applicant then did.  The matter came on again on 27 November last year – at which time the applicant appeared – and Federal Magistrate McInnis dismissed the applicant’s reinstatement application and gave reasons and they are exhibit MN7 to my instructing solicitor’s affidavit.  His Honour in so doing found, as your Honour will see at paragraphs 33 and 34 of his Honour’s judgment, a finding that there was no arguable case.  That is the history of the matter. 

Your Honour will see that the application for an order to show cause and the affidavit are again in exactly in the same form as in three or four of the other matters before your Honour this morning.  We would seek that the application be dismissed on the basis of a summons as an abuse of process.  There is no arguable case, in our submission, in light of Federal Magistrate McInnis’ findings to that effect and in light of the applicant’s failure to appear today for want of prosecution and we would seek an order for costs, your Honour.

HER HONOUR:   On 18 December 2006 the plaintiff, a citizen of Fiji, commenced a proceeding in the original jurisdiction of this Court seeking relief directed to a decision of the Refugee Review Tribunal handed down on 27 April 2004.  The plaintiff arrived in Australia on 30 November 2003 and made an application for a protection Class XA visa on 22 December 2003.  On 30 December 2003 a delegate of the first defendant refused to grant the protection visa. 

On 7 January 2004 the plaintiff sought review of that decision in the Refugee Review Tribunal.  The Tribunal affirmed the delegate’s decision not to grant the visa in a decision handed down on 27 April 2004.  On 24 January 2005 the plaintiff applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.  The application was listed for hearing on 3 March 2006, however, the plaintiff failed to attend.  In those circumstances, the Federal Magistrate dismissed the application in accordance with the rules.

On 28 March 2006 the plaintiff filed an application for an order to show cause in this Court seeking review of the Tribunal’s decision.  On 23 August 2006 Justice Hayne dismissed those proceedings by consent.  On 11 September 2006 the plaintiff made an application to reinstate his application to the Federal Magistrates Court.  This was dismissed on 27 November 2006.

On 18 December 2006 the plaintiff again instituted proceedings in the original jurisdiction of this Court seeking a declaration, certiorari, mandamus, prohibition and injunction over two and half years after the decision of the Tribunal was handed down. 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) and that the plaintiff has not demonstrated an arguable case. In circumstances where the plaintiff has not appeared today on the return of the summons, it is also submitted that the matter should be dismissed for want of prosecution.

The application to this Court is made outside the times fixed by the Rules of Court for making application for certiorari and mandamus: see Rule 25.06.1 and 25.07.2 and those contained in the Migration Act 1958 (Cth). Here the delay is a very long one. The plaintiff has already sought review of the Tribunal’s decision by making application to the Federal Magistrates Court and in the earlier application to this Court which was dismissed by consent. Further, the grounds for relief advanced on the present application are formulaic and no proper case to justify the grounds for an extension of time has been made out.

In all the circumstances, it appears to me appropriate to refuse the application for an extension of time and to dismiss the proceedings with costs.  I so order.

AT 10.18 AM THE MATTER WAS CONCLUDED