Plaintiff M95-2006 v MIMA & Anor

[2006] HCATrans 454

[2006] HCATrans 454

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M95 of 2006

B e t w e e n -

PLAINTIFF M95/2006

Plaintiff

and

THE HONOURABLE AMANDA VANSTONE, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Defendant

MS PHILLIPA McINTOSH IN HER CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Defendant

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 AUGUST 2006, AT 11.06 AM

Copyright in the High Court of Australia

PLAINTIFF M95/2006 appeared in person.

MR C.J. HORAN:   Your Honour, I appear for the first defendant.  (instructed by Phillips Fox)

HIS HONOUR:   Yes.

MR HORAN:   I am not aware whether the plaintiff is present.

HIS HONOUR:   Again, a Punjabi interpreter’s services were sought and that rather suggests that the – I think that the plaintiff may appear.  We are just dealing with matter M95, which I think may be the matter in which this gentleman is engaged, but we have the services of an interpreter.  If we could swear or affirm the interpreter, that would be of assistance.

SARABJEET SINGH PAL, affirmed as interpreter:

HIS HONOUR:   Thank you, Mr Interpreter.  Perhaps if you would take a seat at the Bar table and if you could be good enough to give as best we are able a running summary of the proceedings for the plaintiff, I would be much obliged.

THE INTERPRETER:   Yes.

HIS HONOUR:   Yes, Mr Horan.

MR HORAN:   Your Honour, the first defendant’s summons in this matter seeking dismissal is dated 16 August 2006 and is supported by an affidavit of Bryan Wee sworn 15 August 2006.  The application in this Court seeks review of a decision of the Refugee Review Tribunal which was handed down on 4 November 2004 and the application in this Court was filed on 1 March 2006.  The application was filed outside the 84‑day period under section 486A in conjunction with the transitional provisions pursuant to which the plaintiff was taken to have received actual notification on 1 December 2005 but, in any event, the application was filed some 15 months after the Tribunal’s decision and so would be outside the time limits under the High Court Rules and require an extension of time, in any event.

The applicant has commenced previous proceedings in the Federal Magistrates Court for review of the Tribunal’s decision.  Those proceedings

were dismissed at a final hearing by Federal Magistrate Smith on 3 November 2005.  The plaintiff filed a notice of appeal to the Federal Court, however, subsequently discontinued that appeal on 1 March 2006, which was the day on which these proceedings were commenced.  In the circumstances, putting to one side the question of the operation of section 486A, the Minister submits that the proceedings are an abuse of process insofar as the plaintiff has already resorted to judicial review in the Federal Magistrates Court unsuccessfully, had the opportunity to appeal to the Federal Court and for some unexplained reason has abandoned that appeal in preference of these proceedings.

In my submission, it should not be open to the plaintiff to recommence in the original jurisdiction of this Court raising an issue concerning the validity of a Tribunal decision which has already been the subject of an unsuccessful challenge in the Federal Magistrates Court.  For those reasons, the application is an abuse of process and should be dismissed.

HIS HONOUR:   Yes, thank you, Mr Horan.  Now, Mr Interpreter, would you explain, please, to the plaintiff that the Minister is asking me to dismiss his application.  The Minister is asking me to dismiss the application on the basis that he has already been to court before.  The Minister says because he has already had his chance in the Federal Magistrates Court, he should not have a second chance in this Court.  This is his opportunity to tell me anything he wants to tell me in answer to what the Minister says.

PLAINTIFF M95/2006 (through interpreter):   I do not want to go back because I have a fear.

HIS HONOUR:   Yes.  Is there anything else though that he wishes to tell me about why I should not dismiss his proceeding today?

PLAINTIFF M95/2006 (through interpreter):   I should be given an opportunity.

HIS HONOUR:   Yes.  Is there anything else you want to tell me?  This is the chance you have.  It is hard, I know, but this is the only chance you have to talk to me about it, so now is the time.

PLAINTIFF M95/2006 (through interpreter):   Because if I go back, they will torture me, they can kill me, because of…..law there.

HIS HONOUR:   Yes.  Is there anything else he wants to add?

PLAINTIFF M95/2006 (through interpreter):   No, your Honour.

HIS HONOUR:   Thank you, perhaps if you would be good enough to sit down.  I shall not trouble you in reply, Mr Horan.

The plaintiff came to Australia in May 2004 and very soon after that he applied for a protection visa.  A delegate of the Minister refused to grant that visa in June 2004 and the plaintiff applied to the Refugee Review Tribunal for review of that decision.  On 4 November 2004 the Tribunal published its decision affirming the delegate’s refusal to grant the plaintiff a protection visa.

The plaintiff applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.  That proceeding came on for hearing on 3 November 2005 and the plaintiff appeared, represented by a solicitor.  The Federal Magistrates Court dismissed the application.  The plaintiff gave notice of appeal to the Federal Court of Australia but on 19 December 2005 filed notice of discontinuance of that appeal.

In March this year the plaintiff filed an application for an order to show cause directed to the Minister and to the Refugee Review Tribunal seeking judicial review in this Court of the Tribunal’s decision.  The Minister now moves for orders summarily terminating those proceedings on, among other grounds, the ground that the proceedings constitute an abuse of process.

The issues which the plaintiff would seek to raise in the proceeding in this Court are in no substantial respect different from the issues which he raised in his proceeding in the Federal Magistrates Court.  That being so, his maintenance of these proceedings in this Court is, in my opinion, an abuse of the process of the Court and it follows that the proceeding should be dismissed. 

The order of the Court is proceeding dismissed.  The plaintiff must pay the Minister’s costs.

Thank you for your assistance, Mr Interpreter.

AT 11.17 AM THE MATTER WAS CONCLUDED