Plaintiff S158/2011 v Minister for Immigration and Citizenship & Anor

[2012] HCATrans 315

[2012] HCATrans 315

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S158 of 2011

B e t w e e n -

PLAINTIFF S158/2011

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 11.27 AM

Copyright in the High Court of Australia

HIS HONOUR:   Please call that plaintiff outside the Court.

COURT OFFICER:   No appearance.

MS L.B. BUCHANAN:   May it please the Court, I appear for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Ms Buchanan.

MS BUCHANAN:   Your Honour, as with the last matter, this plaintiff is recorded by the Department as currently being out of Australia.  I seek leave to file an affidavit confirming that information.

HIS HONOUR:   Yes.  I grant leave to the defendants to file in Court an affidavit affirmed on 30 November 2011 by Sylwia Iwona Kuzmiczenko.

On 2 May 2011, 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 s 417 of the Migration Act 1958 (Cth). That is a provision the plaintiff wishes to take advantage of with a view to overturning a prohibition against applying for a visa. 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 – PlaintiffS10/2011 v Minister for Immigration and Citizenship (2012) 86 ALJR 1019; 290 ALR 616. Those cases dealt with, inter alia, s 417. They held that it was 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.

Further, there is evidence that the plaintiff has left Australia and has no current visa for entry into Australia.  Evidence was filed in Court this morning that the Department of Immigration endeavoured to effectuate service at the last address of the plaintiff known to the Department of Immigration.  The documents in question gave notice of the application by the defendants now being heard.  The documents were sent by express post and no response is recorded.  That is another reason for dismissing the plaintiff’s application. 

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

AT 11.31 AM THE MATTER WAS CONCLUDED