Plaintiff S186/2011 v Minister for Immigration and Citizenship & Anor

[2012] HCATrans 316

[2012] HCATrans 316

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S186 of 2011

B e t w e e n -

PLAINTIFF S186/2011

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 11.31 AM

Copyright in the High Court of Australia

HIS HONOUR:   Yes, could that plaintiff be called outside the Court?

COURT OFFICER:   No appearance, your Honour.

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, I again seek leave to file an affidavit in Court.  The plaintiff, as with the previous matter, is recorded by the Department as not being in Australia.

HIS HONOUR:   I grant leave to the defendants to file in Court an affidavit affirmed on 30 November 2012 by Sylwia Iwona Kuzmiczenko.

On 30 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 48B 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 second defendant refused to refer to the first defendant the plaintiff’s request for an application under s 48B.

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 v Minister for Immigration and Citizenship (2012) 86 ALJR 1019; 290 ALR 616. Those cases dealt with provisions which included s 48B and 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. 

There is evidence that the plaintiff has left Australia and does not hold a current visa for entry into Australia.  That is another reason for dismissing his application.

Evidence filed in Court this morning reveals that the Department of Immigration attempted to effect service on the plaintiff and his last‑known addresses as recorded by the Department.  Those attempts took the form of sending necessary documents by express post to those addresses.  There is no evidence of any response.

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

AT 11.34 AM THE MATTER WAS ADJOURNED