Plaintiff M40-2006 v MIMA & Anor

[2007] HCATrans 17

[2007] HCATrans 017

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M40 of 2006

B e t w e e n -

PLAINTIFF M40/2006

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 9.32 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:   Yes.  I will have the matter called.

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Thank you.

MR MOSLEY:   In this matter your Honour will have the defendant’s summons of 12 July 2006.

HER HONOUR:   Yes.

MR MOSLEY:   The affidavit of Tiffany Verschetti?

HER HONOUR:   Yes, I have read that.

MR MOSLEY:   And the affidavit of Antoinetta Guerra?

HER HONOUR:   Yes, I have that.

MR MOSLEY:   Have they all been filed, your Honour?

HER HONOUR:   I believe so.

MR MOSLEY:   Your Honour, does your Honour wish me to take you through the history of the matter?

HER HONOUR:   No, I am apprised of that, Mr Mosley.  As I understand it, there was an application to the Federal Magistrates Court which seemed to be heard many months later and was dismissed with costs in circumstances of a non‑appearance.

MR MOSLEY:   That is correct, your Honour.

HER HONOUR:   Had there been adjournments in the intervening period?

MR MOSLEY:   Yes, I am instructed there have been, your Honour.

HER HONOUR:   Were they in circumstances of non‑appearance?

MR MOSLEY:   I do not know, your Honour.  When it came before Federal Court Magistrate Connolly on 1 March 2006 the applicant failed to attend.  I am reminded by my instructor, your Honour, that when it came to

this Court on 21 August 2006 it was adjourned again.  I can hand your Honour a copy of the transcript if that would assist your Honour.

HER HONOUR:   I am aware of the circumstances.  As I understand it, the plaintiff was unable to attend due to illness and a medical certificate was provided on that occasion.

MR MOSLEY:   That is right, your Honour.  That is in this Court.

HER HONOUR:   Yes.

MR MOSLEY:   Before Federal Magistrate Connolly in March 2006, as I understand it, there was just simply no appearance and then on 28 March he filed the application to show cause in this Court.

HER HONOUR:   Yes.

MR MOSLEY:   Our submission would be, your Honour, that the matter ought be dismissed as either an abuse of process or, in light of the applicant’s failure to attend today, for non‑attendance.  Does your Honour wish me to expand on any of the background?

HER HONOUR:   No, Mr Mosley, thank you.  You have been very helpful, thank you.

MR MOSLEY:   We would seek an order for costs, if your Honour was disposed to make that order.

HER HONOUR:   On 28 March 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 24 June 2005.  The plaintiff arrived in Australia on 14 September 2004 and made an application for a protection visa Class XA on 22 October 2004.  On 9 March 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 on 22 March 2005.  The Tribunal affirmed the delegate’s decision not to grant a visa in a decision handed down on 24 June 2005.  On 20 July 2005 the plaintiff applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.  The application was dismissed with costs by a Federal Magistrate on 1 March 2006.  On 28 March 2006 the plaintiff instituted proceedings in the original jurisdiction of this Court seeking declaration, certiorari, mandamus, prohibition and the injunction.  The matter was originally listed before Justice Hayne on 24 August 2006, however, it was stood out of the list with costs reserved as the plaintiff was unable to attend the hearing due to illness.  A medical certificate was provided.

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. It is contended that 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. The plaintiff has failed to attend on this occasion.

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). In circumstances where the plaintiff has failed to appear on the application today the respondents have sought that the application be dismissed on the grounds either of abuse of process or for non‑attendance by the plaintiff. It is sufficient reason to dismiss the application in all the circumstances as set out where, in failing to attend, the plaintiff has not made out any case in support of the application for an extension of time.

I will also order that the plaintiff pay the respondent’s costs.

AT 9.38 AM THE MATTER WAS CONCLUDED