Plaintiff M99-2005 v MIMIA & Anor

[2006] HCATrans 68

[2006] HCATrans 068

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M99 of 2005

B e t w e e n -

PLAINTIFF M99 OF 2005

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Summons

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 FEBRUARY 2006, AT 9.49 AM

Copyright in the High Court of Australia

PLAINTIFF M99/2005 appeared in person.

MR C.J. HORAN:   If it please the Court, I appear for the first defendant.  (instructed by Australian Government Solicitor)

SARABJEET SINGH, affirmed as interpreter.

HER HONOUR:   I think the best course will be for me to call on the Minister’s counsel to state the case on behalf of the Minister and he will go slowly so that you will be able to interpret as he goes and then I will give the applicant an opportunity to say whatever he wishes in response, so if you take a seat for the moment.  Yes, Mr Horan.

MR HORAN:   Your Honour, the first defendant relies on a summons dated 15 February 2006 which is supported by an affidavit of Elaine Yong sworn 14 February 2006.

HER HONOUR:   Yes, I have seen that.

MR HORAN:   In my submission, the applicant requires an extension of time.  The extension of time should be refused and the application dismissed.  The plaintiff brought previous proceedings in the Federal Magistrates Court to challenge the Tribunal’s decision which were dismissed and an appeal to the Federal Court was dismissed.  The decision that is sought to be reviewed by these proceedings is a decision of the Refugee Review Tribunal of 15 August 2000 and this application was filed in this Court on 16 August 2005.  So it is almost exactly five years after the Tribunal’s decision. 

In light of the dismissal of the previous proceedings and the lack of any arguable ground of review identified in the application, in my submission the Court should refuse to extend time and I rely generally on the comments of Justice McHugh in Marks to which your Honour has earlier referred.

HER HONOUR:   Yes, thank you, Mr Horan.  The issue to be addressed by the applicant is that the application here has been filed five years out of time and I invite the applicant to say whatever he wishes to me in relation to the Minister’s case that the application for extension of time should be refused.

PLAINTIFF M99/2005 (through interpreter):   I fear to go back and get…..I do not want to go back.

HER HONOUR:   Does he wish to say anything about the time lapse?

PLAINTIFF M99/2005 (through interpreter):   Earlier in the court the case was not heard, this was when last appeared to the High Court.

HER HONOUR:   I see, thank you. 

On 16 August 2005 the plaintiff commenced a proceeding in the original jurisdiction of the Court seeking relief directed to a decision of the Refugee Review Tribunal made on 28 July 2000. 

The plaintiff made an application for a protection visa on 14 November 1997.  A delegate of the Minister refused that application on 3 December 1997 and the plaintiff sought review of this decision by the Refugee Review Tribunal.  On 28 July 2000 the Tribunal affirmed the decision of the Minister not to grant the applicant a protection visa. 

After the Tribunal made its decision, the plaintiff made an application for judicial review on 24 May 2004 to the Federal Magistrates Court under section 39B of the Judiciary Act 1903 (Cth). That application was dismissed by the Federal Magistrates Court by Federal Magistrate McInnis on 21 March 2005. The plaintiff appealed to the Federal Court of Australia and a single judge, exercising the appellate jurisdiction of the Court, dismissed the appeal on 25 July 2005. Following that decision the plaintiff commenced proceedings in this Court on 16 August 2005, giving rise to the present application by the Minister for orders terminating the proceedings summarily.

The Minister submits that the application to this Court is made well beyond the times fixed by the Rules of Court for making application for certiorari and mandamus:  see rule 25.06.01 and 25.07.2.  The Minister contends that, having regard to the course of events which I have described, no case is made for extending time within which certiorari or mandamus should be granted and that because other relief which the plaintiff would seek in the proceedings is necessarily premised upon the grounds of certiorari to quash the decision of the Tribunal, the proceedings as a whole are bound to fail.

The availability of prohibition and injunction depends upon whether the impugned decision of the Tribunal is liable to be quashed by granting certiorari:  for example, see Re Ruddock; Ex parte Reyes (2000) 177 ALR 484 per Justice McHugh. This means that the principal question in the present matter is whether any extension of time should be granted.

The time fixed by the Rules of Court as the times within which the application must be made for the grant of certiorari or mandamus are times which are fixed having regard to the fact that the writs which it is sought to have issued are directed at the acts or decisions of public bodies or officials.

As Justice McHugh remarked in Re Commonwealth; Ex Parte Marks (2000) 177 ALR 491 at 495 paragraph [15], ‘the public interest requires that there be an end to litigation about the efficacy of such acts or decisions’. His Honour also said in that decision at 496 paragraph [16]:

‘The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court.  In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.’

As counsel for the Minister pointed out in the present case, the application for relief was made five years after the Tribunal decision.  This is clearly outside the six months following a decision within which an application is allowed to be made under the Rules in the case of certiorari and the two months allowed in the case of mandamus.  It may be that the expiration of so long a time is of itself sufficient reason to refuse extension of time, save in the more exceptional cases.

Given that the plaintiff in this case had already resorted to the judicial power of the Commonwealth by making an application to the Federal Magistrates Court for relief of the same kind as he seeks from this Court, and the proceeding in the Federal Magistrates Court has been determined on its merits and dismissed, as was a subsequent unsuccessful appeal to the Federal Court of Australia, no ground is shown for granting an extension of time within which the present application, insofar as it seeks certiorari or mandamus, may be brought.

Insofar as the plaintiff would seek other relief from this Court, in particular the issue of prohibition, an injunction or a declaration, the grant of that relief is premised upon the quashing of the decision made by the Tribunal.  Given that no case has been made out for extending the time within which application may be made for certiorari to quash the decision of the Tribunal, if would follow that the basis for the grant of any other relief cannot be established.

In all the circumstances, the proceedings which the plaintiff has instituted are proceedings which must fail.  That being so, rather than remit them to another court for hearing and determination, it is better that they be brought to an end in this Court now.  Accordingly, I order that the proceeding be dismissed.  Is the application that they be dismissed with costs, Mr Horan?

MR HORAN:   Yes, your Honour.

HER HONOUR:   Well, I so order.  I order that the proceeding be dismissed with costs.

AT 10.00 AM THE MATTER WAS CONCLUDED