Plaintiff M19-2006 v MIMIA & Anor

[2006] HCATrans 211

[2006] HCATrans 211

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M19 of 2006

B e t w e e n -

PLAINTIFF M19/2006

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 27 APRIL 2006, AT 11.49 AM

Copyright in the High Court of Australia

MR C.J. HORAN:   If the Court pleases, I appear for the first defendant.  (instructed by Clayton Utz)

HIS HONOUR:   Are you conscious of there being any appearance, Mr Horan?

MR HORAN:   No, not to my knowledge.

HIS HONOUR:   Yes.  We should call the plaintiff.

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Yes, thank you.  Yes, Mr Horan, what is the position in this matter?

MR HORAN:   The Minister has served a summons dated 7 April 2006 seeking dismissal of the application.

HIS HONOUR:   Do we have an affidavit of service – yes, we do, from Christopher Paul Wilson, is that right?

MR HORAN:   Yes, your Honour, dated 12 April.

HIS HONOUR:   Sworn 12 April.

MR HORAN:   And the substantive affidavit of Udara Jayasinghe sworn 7 April 2006.  This and I think the remaining matters in the list are matters in the final category of cases in which the application filed in this Court was filed outside the 84‑day time limit prescribed by section 486A.  The application was filed on 28 February 2006.

HIS HONOUR:   Does it come to this.  You say I cannot extend the time limit and even if I could, I should not?

MR HORAN:   Yes, your Honour.

HIS HONOUR:   As simple as that.

MR HORAN:   The salient points, particularly in relation to the latter consideration, are that the Tribunal’s decision was the decision of the Refugee Review Tribunal handed down 1 August 2003.  There have been previous proceedings commenced in the Federal Magistrates Court on two separate occasions.  The first was dismissed by Federal Magistrate Raphael on 14 April 2005 and the second further application was dismissed by Federal Magistrate Hartnett on 15 February 2006.  I think in each case the

plaintiff failed to appear at the hearing.  Apart from those matters, there is no arguable case raised on the application.  No particulars of the grounds of review have been provided ‑ ‑ ‑

HIS HONOUR:   But given this history, even if I had a discretion, why would I extend the time?

MR HORAN:   Yes, your Honour.

HIS HONOUR:   Yes, I understand that.  Yes, thank you, Mr Horan.

On 15 August 2002 the plaintiff, a citizen of India, applied for a protection visa.  On 14 October 2002 a delegate of the Minister refused to grant that visa.  The plaintiff applied to the Refugee Review Tribunal for review of the delegate’s decision.  The Tribunal affirmed the delegate’s decision. 

On 26 August 2003 the plaintiff commenced a proceeding in the Federal Magistrates Court seeking relief under section 39B of the Judiciary Act 1903 (Cth) directed to the Tribunal in respect of the decision which it had made. That proceeding was dismissed by the Federal Magistrates Court on 14 April 2005, the plaintiff not appearing to prosecute the application when it was called on for hearing.

On 6 September 2005 the plaintiff commenced a second proceeding in the Federal Magistrates Court seeking like relief to that which had been sought in the earlier proceeding, again, directed to the Tribunal in respect of its decision affirming the delegate’s decision not to grant a protection visa.  On 15 February 2006 Federal Magistrate Hartnett dismissed the application, again, on the ground that the plaintiff had not appeared to prosecute the proceeding but on the further ground that the application was made out of time and disclosed no jurisdictional error attending the decision of the Refugee Review Tribunal handed down on 1 August 2003.

On 28 February 2006 the plaintiff filed an application for an order to show cause in this Court directed to the Refugee Review Tribunal.  The plaintiff in that originating application gave as grounds on which the relief was claimed the most general statement of grounds for relief and gave no particulars of those grounds.  The Minister contends that the application is brought out of time.  The Minister further contends that by operation of the Migration Litigation Reform Act 2005 the Court has no power to extend the applicable time which, so the Minister would contend, is that fixed by the Migration Act 1958 (Cth) as amended by the 2005 legislation. Even if that were not so, the times fixed by the Rules of Court for applying for an order to show cause why writs of certiorari or mandamus should issue have long since expired.

The Minister would say that even if, contrary to the submission which is made on her behalf, there were a power in the Court to extend the time for making application for relief of the kind which the plaintiff seeks, the discretion to extend time should inevitably be exercised against the grant of that extension.  For reasons of the kind which I have given in matters such as Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicants M31 of 2004 [2004] HCATrans 318, if the question were one which fell to be considered under the Rules, there is no doubt in my mind that the discretion to grant an extension of time would inevitably be exercised against that grant.

It is in these circumstances unnecessary to embark upon any question about the construction or application of the Migration Litigation Reform Act 2005. If the Minister’s contentions in that respect are correct, I have no power to extend the time and the proceeding must inevitably fail. If there remained a discretion to extend time, that discretion would not be exercised in the plaintiff’s favour. It follows that the application should be dismissed. It must be dismissed with costs.

The order is application is dismissed with costs.

AT 11.59 AM THE MATTER WAS CONCLUDED