Plaintiff M62 of 2019 v Minister for Immigration, Citizenship and Multicultural Affairs & Ors

[2019] HCATrans 171

[2019] HCATrans 171

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M62 of 2019

B e t w e e n -

PLAINTIFF M62 of 2019

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Defendant

SECRETARY FOR THE DEPARTMENT OF HOME AFFAIRS

Second Defendant

LAUREN OF THE MINISTERIAL INTERVENTION IN THE DEPARTMENT OF HOME AFFAIRS

Third Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 30 AUGUST 2019, AT 10.18 AM

Copyright in the High Court of Australia

HER HONOUR:   For the reasons that I now publish, the application for a constitutional or other writ should be dismissed with costs.  I publish those reasons.

In matter M62 of 2019, the order of the Court is:

1.The plaintiff’s application for a constitutional or other writ filed on 29 April 2019 is dismissed with costs.

I publish that order.  I direct that the reasons as published be incorporated into the transcript.

By an application for a constitutional or other writ filed in the original jurisdiction of this Court on 29 April 2019, the plaintiff seeks judicial review of the fact that on 25 February 2019 the third defendant, an officer of the Department of Home Affairs, did not refer to the first defendant, the Minister, the plaintiff’s request for personal intervention of the Minister under s 48B of the Migration Act 1958 (Cth). 

The plaintiff is a citizen of Bangladesh.  He arrived in Australia on 26 April 2013.  He applied for a Protection (Class XA) visa.  A delegate of the Minister refused the plaintiff’s application.  The plaintiff applied to the Administrative Appeals Tribunal (“the Tribunal”) to review that decision.  The application was dismissed.  The plaintiff then commenced a proceeding in the Federal Circuit Court of Australia seeking judicial review of the Tribunal’s decision.  That proceeding was unsuccessful:  BUH16 v Minister for Immigration and Border Protection [2017] FCCA 3212. The plaintiff attempted to appeal to the Federal Court of Australia. That Court dismissed the plaintiff’s application for extension of time within which to appeal from the orders of the Federal Circuit Court.

On 4 October 2018, the plaintiff requested the Minister to use his power under s 48B of the Migration Act to intervene in his case.  That request was refused on 19 March 2019 in the following terms:

“Your request was assessed against the Minister’s Guidelines - s 48A cases and requests for s 48B Ministerial intervention, however, it did not meet the Guidelines.

This request has therefore been finalised by the Department without referral.”

On 29 April 2019, the plaintiff commenced this proceeding.

Section 48B of the Migration Act confers power on the Minister to determine that s 48A of the Migration Act, which restricts a person whose application for a protection visa has been refused from making a further application for a protection visa, does not apply to a visa applicant. This power is non‑compellable and must be exercised by the Minister personally. Section 48B was considered by this Court in S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636.

The relief sought by the plaintiff is on four grounds which are formulated in terms substantially identical to those in previous applications that have been repeatedly dismissed by this Court over the last 12 months:  Plaintiff S28/2018 v Minister for Home Affairs [2018] HCATrans 168; Plaintiff S122/2018 v Minister for Home Affairs [2018] HCATrans 209; Plaintiff S330/2018 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 28; Plaintiff S198/2018 v Minister for Home Affairs [2019] HCATrans 35; Plaintiff S7/2019 v Minister for Home Affairs [2019] HCATrans 61; Plaintiff S53/2019 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 136; AWI16 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 137. The reasons repeatedly given in those decisions apply equally as reasons for rejecting the same contentions in this matter. Indeed, this is the first of three applications in substantially identical terms that have been, or are to be, dismissed just this morning.

As Gageler J said in AWI16, “[t]he systemic reasons why doomed applications of this sort continue to be filed by litigants in person lie beyond the province of this Court to investigate.  It is important to record, however, that it is to be expected that persons having professional and ethical obligations in the provision of advice on migration law are not the source of the outdated templates that continue to be used”. 

The plaintiff’s application does not disclose an arguable basis for the relief sought. The application will be dismissed with costs pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

AT 10.18 AM THE MATTER WAS CONCLUDED