Plaintiff S245/2011 v Minister for Immigration and Citizenship

[2012] HCATrans 325

[2012] HCATrans 325

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S245 of 2011

B e t w e e n -

PLAINTIFF S245/2011

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 12.12 PM

Copyright in the High Court of Australia

HIS HONOUR:   Could that 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 seek leave to file in Court an affidavit.  This plaintiff is also recorded by the Department as not being in 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 27 August 2012, 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 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. They held that those provisions were not conditional in 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 also 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 plaintiff’s application. 

Evidence filed in Court this morning reveals that an attempt by the Department of Immigration to serve on the last address known to it of the plaintiff failed.  The form of service was the dispatch of documents in an express post envelope.  No reply has been received to that dispatch. 

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

AT 12.15 PM THE MATTER WAS CONCLUDED