Plaintiff S192-2019 v Honourable Justice Stewart

[2019] HCATrans 177

[2019] HCATrans 177

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S192 of 2019

B e t w e e n -

PLAINTIFF S192/2019

Plaintiff

and

HONOURABLE JUSTICE STEWART

First Defendant

MINISTER FOR HOME AFFAIRS

Second Defendant

IMMIGRATION ASSESSMENT AUTHORITY

Third Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 SEPTEMBER 2019, AT 9.30 AM

Copyright in the High Court of Australia

HIS HONOUR:   The orders I make in this matter are as follows:

1.The application is dismissed under r 25.09.1 of the High Court Rules 2004 (Cth).

2.The plaintiff is to pay the second defendant’s costs.

I publish my reasons and I direct that those reasons be incorporated into the transcript.

On 24 June 2019, the plaintiff filed an application for a constitutional or other writ in the original jurisdiction of the High Court.  By it, the plaintiff seeks relief in respect of a decision made on 4 June 2019 by Stewart J in the Federal Court of Australia refusing the plaintiff’s application for an extension of time to appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Immigration Assessment Authority which had affirmed a decision of a delegate the Minister for Home Affairs refusing to grant him a protection visa.  The plaintiff seeks a writ of certiorari quashing the Federal Court’s decision, a declaration that the decision of the Immigration Assessment Authority is invalid, and a writ of prohibition directed to the Minister preventing him from acting on the initial refusal of his visa application.

To the extent that the present application for relief is directed to the Immigration Assessment Authority, it is an abuse of process:  See Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676; 297 ALR 560. The plaintiff has had an opportunity to present his case for the issuing of a constitutional writ directed to the Authority in the Federal Circuit Court, which dismissed the application as failing to disclose jurisdictional error.

To the extent that the present application seeks to challenge the decision of Stewart J, it is incumbent on the plaintiff to establish jurisdictional error on the part of his Honour.

There is no substance in the plaintiff’s submission that his Honour misconceived the nature of the function he was exercising in refusing the plaintiff’s application for an extension of time on the basis that the prospective appeal would have no prospect of success.  His Honour’s reasons display a clear appreciation and application of the correct legal standard:  DPP18 v Minister for Home Affairs [2019] FCA 825 at [9]‑[11]. His Honour did not, as the plaintiff seeks to argue, transform the extension of time hearing into “a de facto full hearing”.

There is also not shown to be any substance in the plaintiff’s allegation that Stewart J failed to ensure that he did not suffer a disadvantage by virtue of the fact that he was a self‑represented litigant.  The allegation is unparticularised and is unsupported by anything in the affidavit filed by the plaintiff in support of the application.

The application discloses no arguable basis for the relief sought by the plaintiff.

The orders I will therefore make are as follows:

1.The application is dismissed under r 25.09.1 of the High Court Rules 2004 (Cth).

2.The plaintiff is to pay the second defendant’s costs.

The Court will now adjourn.

AT 9.31 AM THE MATTER WAS CONCLUDED