Plaintiff S222/2011 v Minister for Immigration and Citizenship & Anor

[2012] HCATrans 323

[2012] HCATrans 323

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S222 of 2011

B e t w e e n -

PLAINTIFF S222/2011

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 12.03 PM

Copyright in the High Court of Australia

HIS HONOUR:   Please call the plaintiff outside 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 seek leave to file in Court an affidavit.  This plaintiff is also recorded by the Department as being out of 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 24 June 2011, the defendant 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:  Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 86 ALJR 1019; 290 ALR 616. Those cases dealt with provisions which included s 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. 

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 the application. 

There is also evidence filed this morning revealing the attempts of the Department of Immigration to serve documents indicating the nature of today’s proceedings on the plaintiff.  The form of service consisted of posting the documents in an express post letter.  No reply has been received. 

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

AT 12.06 PM THE MATTER WAS CONCLUDED