Plaintiff S204/2016 v Minister for Immigration and Border Protection & Anor

[2017] HCATrans 88

[2017] HCATrans 088

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S204 of 2016

B e t w e e n -

PLAINTIFF S204/2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 20 APRIL 2017, AT 9.30 AM

Copyright in the High Court of Australia

MR J. WILLIAMS:   May it please the Court, I appear on behalf of the plaintiff.  (instructed by Russell Byrnes Solicitors)

MR A. MARKUS:   If your Honour pleases, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, Mr Williams.

MR WILLIAMS:   Your Honour, the solicitor moves on the summons that was filed yesterday, 19 April.  Do you have that?

HER HONOUR:   Yes.

MR WILLIAMS:   And reads the affidavit in support by Matthew Byrnes.

HER HONOUR:   Yes.  Well, it is an application for Russell Byrnes Solicitors to be granted leave to be removed from the record.  Mr Markus, any objection?

MR MARKUS:   No, your Honour.

HER HONOUR:   Yes.  Leave is granted to Russell Byrnes Solicitors to be removed from the record as the solicitor for the plaintiff.

MR WILLIAMS:   May it please the Court.

HER HONOUR:   Thank you, Mr Williams.  Mr Markus, this is the matter that I think on the last occasion I stood over to await the outcome of the application for leave to appeal from the orders made by Justice Gageler in Plaintiff 178A of 2016.

MR MARKUS:   That is correct, your Honour.

HER HONOUR:   Yes.  So that in the result leave was refused.  There is no arguable basis for the relief that the plaintiff claims and it is, in any event, in light of the affidavit of Mr Eberl, it would be futile since the plaintiff has left the jurisdiction.

MR MARKUS:   That is my client’s position, your Honour.

HER HONOUR:   Yes.

MR MARKUS:   We would simply ask for costs for the proceeding to be dismissed – for orders for the proceedings to be dismissed with costs.

HER HONOUR:   Yes, I understand.

On 30 August 2016, the plaintiff filed an application for an order to show cause, seeking constitutional writ relief arising from the determination of the Administrative Appeals Tribunal to affirm the decision to refuse him a protection visa.

On 21 January 2017, the plaintiff departed Australia.  On his departure his bridging visa ceased and he does not hold a visa that would permit him to return to Australia.  His former solicitor has been granted leave to withdraw.  The grounds for the relief that the plaintiff claims are the same grounds that were held not to raise an arguable case in Plaintiff S178A/2016 & Ors v Minister for Immigration and Border Protection and Anor[1].

[1] [2016] HCATrans 219 (9 September 2016).

Leave to appeal from that decision has been refused.[2]  No arguable basis for the relief claimed is identified in the application, nor in light of the plaintiff’s departure from Australia in the circumstances stated is there utility in its grant.  The application is dismissed with costs.

[2] Plaintiff S243A/2016 v Minister for Immigration and Border Protection & Anor [2017] HCASL 56.

AT 9.33 AM THE MATTER WAS CONCLUDED