Plaintiff S257/2012 v Minister for Immigration and Citizenship and Anor

[2013] HCATrans 10

[2013] HCATrans 010

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S257 of 2012

B e t w e e n -

PLAINTIFF S257/2012

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for an order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 11 FEBRUARY 2013, AT 9.46 AM

Copyright in the High Court of Australia

MR J.B. KAY HOYLE:  May it please the Court, I appear on behalf of the first defendant and the applicant on the summons.  (instructed by Clayton Utz)

HIS HONOUR:   Yes, thank you, Mr Kay Hoyle.  Could the plaintiff be called outside the Court? 

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Yes, thank you.  There is no further evidence, is there?

MR KAY HOYLE:   There is not, your Honour.

HIS HONOUR:   I do not think I need trouble you, Mr Kay Hoyle.

On 17 September 2012, the plaintiff filed an application to show cause why relief should not be granted against the second defendant for denial of procedural fairness in deciding not to affirm a decision by a delegate of the first defendant not to grant the plaintiff a protection visa.  That decision was made as long ago as 23 August 2010. 

On 14 December 2012, the first defendant filed a summons seeking an order that the plaintiff’s application be dismissed.  One ground is that the plaintiff has left Australia.  There is evidence that that happened on 30 October 2012.  The plaintiff has not appeared this morning.

It would be futile to leave the plaintiff’s application on foot since he has no entitlement to return to Australia and, hence, even if the relief he seeks were granted it would lack utility because the second respondent would have no power to grant him a protection visa.  Hence, the plaintiff’s application must be dismissed with costs. 

A further reason for this order is that the plaintiff has not filed any evidence establishing why it is in the interests of justice to grant an extension of time of nearly two years for the making of the application.

I order that the plaintiff’s application be dismissed with costs.

AT 9.48 AM THE MATTER WAS CONCLUDED