Plaintiff S124/2012 v Minister for Immigration and Citizenship & Anor

[2012] HCATrans 311

[2012] HCATrans 311

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S124 of 2012

B e t w e e n -

PLAINTIFF S124/2012

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Application for order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 DECEMBER 2012, AT 11.10 AM

Copyright in the High Court of Australia

MR R.J. BAIRD:   If it please the Court, I appear for the defendants.  (instructed by Clayton Utz Lawyers)

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Thank you.  I think there is no alternative but to accede to your application to have this plaintiff’s application dismissed.

MR BAIRD:   Yes, your Honour.  That is that the first defendant seeks.

HIS HONOUR:   Very well.

On 16 May 2012, the plaintiff filed an application for an order to show cause why prerogative writs and other relief should not run. It complained that the first defendant, the second defendant and its officers had failed to observe natural justice in relation to ss 48B and 417 of the Migration Act 1958 (Cth). These are provisions the plaintiff wishes to take advantage of with a view to overturning a prohibition against applying for a visa. The relevant authorities refused to refer to the first defendant the plaintiff’s request for a notice under s 48B and the first defendant refused to exercise his powers under s 417.

On 7 September 2012, the High Court of Australia dismissed the applications in four representative actions being run by Parish Patience with a view to settling the position of numerous persons, including the plaintiff:  Plaintiff S10/2011 vMinister for Immigration and Citizenship and Anor (2012) 86 ALJR 1019, 290 ALR 616. Those cases dealt with provisions which included ss 48B and 417 and they held that those provisions were not conditional on observing the principles of natural justice.

On 15 November 2012, the defendants filed written submissions contending that the plaintiff’s application should be dismissed with costs because of the decision in the four cases referred to.  Those submissions are correct. 

The defendants also filed an affidavit stating that on 19 October 2012 the plaintiff left Australia and holds no valid visas to re‑enter Australia.  There is further evidence confirming that evidence.  That is another reason for dismissing the plaintiff’s application.  The litigation is futile in view of the plaintiff’s departure and his need to apply for another visa if he seeks to return.

I order that the plaintiff’s application for an order to show cause be dismissed with costs.

MR BAIRD:   If the Court pleases.

AT 11.13 AM THE MATTER WAS CONCLUDED