Plaintiff S208/2011 v Minister for Immigration and Citizenship & Anor

[2012] HCATrans 321

[2012] HCATrans 321

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S208 of 2011

B e t w e e n -

PLAINTIFF S208/2011

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 11.55 AM

Copyright in the High Court of Australia

HIS HONOUR:   Please call the plaintiff outside 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, I seek leave to file in court an affidavit.  This plaintiff is also recorded by the Department as having left Australia.

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

On 14 June 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 ss 48B and 417 of the Migration Act 1958 (Cth). Those are provisions 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 application 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 the solicitors with a view to settling the position of numerous persons, including the plaintiff:  Plaintiff S10 of 2011 v Minister for Immigration and Citizenship (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. 

Further, there is evidence that the plaintiff is no longer in 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 records attempts by the Department of Immigration to serve at the last address known to it of the plaintiff documents which would give notice of today’s proceedings.  The form of service took the form of posting an express post envelope.  No response is recorded in the evidence.

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

AT 11.58 AM THE MATTER WAS CONCLUDED