Plaintiff S267/2012 v Minister for Immigration and Citizenship & Anor

[2012] HCATrans 338

[2012] HCATrans 338

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S267 of 2012

B e t w e e n -

PLAINTIFF S267/2012

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO LINK TO SYDNEY

ON MONDAY, 10 DECEMBER 2012, AT 10.45 AM

Copyright in the High Court of Australia

MR R.J. BAIRD:   May it please the Court, I appear in this matter as well, your Honour.  (instructed by Clayton Utz Lawyers)

HER HONOUR:   Yes, thank you, Mr Baird.  What is the position with this matter?

MR BAIRD:   Your Honour, the plaintiff in this matter has also departed Australia and the first defendant seeks similar relief as in the first matter. 

HER HONOUR:   Yes.

MR BAIRD:   There is an affidavit of Oliver Richard Jones sworn 20 November 2012 that deposes to the plaintiff’s departure from Australia.

HER HONOUR: Yes, I have that. The plaintiff was removed from Australia on 26 October 2012 under section 198(6) of the Migration Act.

MR BAIRD:   Yes, your Honour.

HER HONOUR:   So once again, Mr Baird, there is no question of the summons seeking that the application for an order to show cause be dismissed, having been served on the plaintiff.

MR BAIRD:   That is correct, your Honour, it has not been served.  We have no contact details for the plaintiff overseas.

HER HONOUR:   Yes, very well.  In the circumstances, there is no point in having the plaintiff called outside the Court.  Very well, you rely on the affidavit of Mr Jones, sworn on 20 November 2012.  That is the evidence in the matter, is it?

MR BAIRD:   Yes, your Honour, that is the case. 

HER HONOUR:   Yes, and you rely on your written outline of submissions, Mr Baird?

MR BAIRD:   Yes, your Honour.  Just further on the matter of evidence, in this matter the submissions refer to the affidavit sworn by the applicant on 18 September 2012 which sets out the history of the ‑ ‑ ‑

HER HONOUR:   Yes, that is the affidavit to which the decision of the tribunal is annexed, yes.  Thank you, Mr Baird.

MR BAIRD:   May it please the Court.

HER HONOUR:   Thank you, Mr Baird.

On 20 September 2012, the plaintiff filed an application for an order to show cause seeking constitutional writ relief. In support of that application, the plaintiff filed an affidavit sworn on 18 September 2012 which sets out the history of the matter. The first defendant by summons filed on 21 November 2012 claims orders that the plaintiff’s application be dismissed and that the plaintiff pay the first defendant’s costs. The second defendant, the Refugee Review Tribunal, has filed a submitting appearance. The first defendant relies on the affidavit of Oliver Richard Jones, sworn on 20 November 2012. I am satisfied by reference to that affidavit that the plaintiff was removed from Australia pursuant to section 198(6) of the Migration Act 1958 (Cth) (“the Act”) on 26 October 2012.

The basis for the grant of the relief claimed by the first defendant is twofold:  firstly, that the relief claimed by the plaintiff would be futile in circumstances in which he has departed from Australia, and, secondly, that the application was filed out of time, it is asserted that there has been an unwarrantable delay and that no reasons have been advanced in the material filed on the plaintiff’s behalf to demonstrate that it is necessary in the interests of the administration of justice to extend time. 

In circumstances in which the plaintiff seeks to challenge the determination of the second defendant in affirming an order made by the delegate of the first defendant to refuse to grant a protection visa, the relief that he claims is futile since the plaintiff does not have an entitlement to return to Australia and, accordingly, on any remittal, the Tribunal would be unable, as a matter of law, to exercise any of its powers other than the power under section 415(2)(a) of the Act to affirm the delegate’s decision. That makes it unnecessary to address the first defendant’s further submissions respecting the unwarrantable delay.

For these reasons, I make the following orders.  The application for an order to show cause is dismissed.  The plaintiff is to pay the first defendant’s costs.

AT 10.52 AM THE MATTER WAS CONCLUDED