Plaintiff M80/2016 v Minister for Immigration and Border Protection & Anor

[2016] HCATrans 204

[2016] HCATrans 204

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M80 of 2016

B e t w e e n -

PLAINTIFF M80/2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 5 SEPTEMBER 2016, AT 9.40 AM

Copyright in the High Court of Australia

PLAINTIFF M80/2016 appeared in person.

MR W.S. MOSLEY:   If the Court pleases, I appear for the Minister.  (instructed by Australian Government Solicitor)

SURINDER MUDHER, sworn as interpreter.

HIS HONOUR:   Thank you.  Please have a seat next to the plaintiff.  Mr Mosley, is there anything further to be added on behalf of the Minister?

MR MOSLEY:   Not unless there is anything that the Court wishes me to expand upon.  I am in a position to do that if the Court wishes to but, other than that, no, your Honour.

HIS HONOUR:   Thank you.  Have a seat please.  Mr Plaintiff, is there anything further that you wish to say in support of your case?

PLAINTIFF M80/2016 (through interpreter):   Is it what I have already said is regarding that?

HIS HONOUR:   I have read the plaintiff’s affidavit and his outline of submissions and all of the documents that have been filed in support of his case.

PLAINTIFF M80/2016 (through interpreter):   Yes.

HIS HONOUR:   Is there anything further that you wish to say?

PLAINTIFF M80/2016 (through interpreter):   I have not been able to understand – my case has been refused right from the beginning and which they say that I did not appear in the hearing.  I do not understand what is going on.

HIS HONOUR:   Thank you, have a seat.

This is an application for an order to show cause why an order in the nature of prohibition should not go to prevent the first defendant (“Minister”) taking any further step in reliance on a decision of the Administrative Appeals Tribunal made on 19 May 2016 to affirm a decision of the Minister’s delegate to recommend that the plaintiff’s application for protection visa be refused.  Orders are also sought in the nature of certiorari to quash the Tribunal’s decision and for the matter to be remitted to the Tribunal for further determination according to law.

The plaintiff is a citizen of India who arrived in this country on 19 February 2013 as the holder of a Subclass 456 (Short Stay) Business visa.  The visa expired on 19 May 2013 and after its expiration the plaintiff remained in this country as an unlawful non‑citizen.  On 15 September 2013, he lodged an application for a Protection (Class XA) visa but it was found to be invalid. 

On 2 December 2013, he lodged a further application which was referred to the Minister’s delegate.  The delegate invited the plaintiff to appoint an interview to discuss the plaintiff’s claim for protection but the plaintiff did not respond to the delegate’s invitation.  Consequently, the delegate proceeded to determine the application on the basis of the material that had been supplied.  On 9 April 2014, the delegate refused the application, having found the plaintiff’s claim to be vague, unsubstantiated and overwhelmingly far‑fetched. 

The plaintiff applied to the Tribunal for review of the delegate’s decision, but, after some delays the result of the plaintiff’s failure to attend before the Tribunal on both the day first appointed for hearing and also on a later day that was subsequently appointed for hearing, the Tribunal affirmed the delegate’s decision in the plaintiff’s absence pursuant to section 426A of the Migration Act 1958 (Cth).

On 30 September 2014, the plaintiff filed an application to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. The matter was listed for hearing on 22 April 2015, but the plaintiff once again failed to appear. Accordingly, the application was dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

On 16 June 2015, the plaintiff filed an application seeking to set aside the order of 22 April 2015 and to have the application for judicial review reinstated.  On 17 December 2015, Judge Riethmuller dismissed the application for reinstatement.  His Honour was able to identify only one ground of the plaintiff’s application for judicial review which alleged an error of law.  It was that the Tribunal had erred in law by failing to afford the plaintiff a hearing.  As his Honour found, however, the plaintiff had been given adequate opportunities for a hearing, of which he had not availed himself.  Thus, the claim for judicial review was untenable.  His Honour therefore refused the application for reinstatement on the basis that none of the plaintiff’s grounds of review was arguable.

On 1 February 2016, the plaintiff applied to the Federal Court of Australia for an extension of time in which to appeal and for leave to appeal from the orders of Judge Riethmuller.  Those applications came on for hearing before his Honour Justice Murphy on 17 May 2016.  On 19 May 2016, his Honour dismissed the applications on the basis that the application for leave to appeal did not enjoy a reasonable prospect of success.  In his written reasons, his Honour expressed his agreement with Judge Riethmuller that the applicant did not have an arguable case for judicial review.

On 20 June 2016, the plaintiff filed this application for an order to show cause.  The sole identifiable ground of the application is that “Tribunal has not considered my situation, Circuit Court hasn’t considered and Federal Court of Australia hasn’t considered my situation so I am bringing the decision to High Court”.  The application for an order to show cause is considerably out of time and therefore the plaintiff requires an extension of time.  It would be futile, however, to grant an extension.  The plaintiff’s application for an order to show cause does not identify an arguable basis for the relief which is sought and, therefore, it would be bound to fail.  Accordingly, the application is dismissed.

Mr Mosley, you seek costs?

MR MOSLEY:   We do, your Honour, yes.

HIS HONOUR:   Is there any basis on which costs should not be ordered in favour of the Minister?

PLAINTIFF M80/2016 (through interpreter):   My only mistake was that I did not appear in the hearing.

HIS HONOUR:   Yes, I understand, thank you.  The application is dismissed with costs.  Thank you very much.

MR MOSLEY:   If the Court pleases.

AT 9.55 AM THE MATTER WAS CONCLUDED