Plaintiff S277/2012 v Minister for Immigration & Citizenship

[2012] HCATrans 339

[2012] HCATrans 339

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S277 of 2012

B e t w e e n -

PLAINTIFF S277/2012

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 10.52 AM

Copyright in the High Court of Australia

MR P.M. KNOWLES:   May it please, I appear for the first respondent.  (instructed by DLA Piper Australia)

HER HONOUR:   Yes, thank you, Mr Knowles.

MR KNOWLES:   Your Honour, this case bears some of the similarities to the previous two in your Honour’s list.

HER HONOUR:   Yes.

MR KNOWLES:   I move on a summons filed 5 November 2012.

HER HONOUR:   Yes.

MR KNOWLES:   That summons despite an attempt of service was not served on the plaintiff because the plaintiff had already departed Australia.

HER HONOUR:   So once again, Mr Knowles, there would be no utility in calling the plaintiff.

MR KNOWLES:   No, your Honour.

HER HONOUR:   Yes.  I am sorry, Mr Knowles, do go on.

MR KNOWLES:   I seek to read the affidavit of Emily Baggett sworn 5 November 2012.

HER HONOUR:   I have an affidavit of Emily Baggett which is affirmed on 6 December 2012 and filed on that date.  Is that the document?

MR KNOWLES:   No, that is a later affidavit, your Honour, explaining some of the procedural history.

HER HONOUR:   I am sorry, just bear with me.  Mr Knowles, I have on the file an affidavit of an Emilia Ramos affirmed on 28 November 2012 deposing to the attempted service by mail of the summons in this matter.  There is an affidavit of attempted service by Stephen Goodwin, but I do not appear to have – I am sorry, I have found it now.  Yes, I now have the affidavit of Emily Baggett affirmed on 1 November 2012, filed on 5 November 2012.

MR KNOWLES:   Thank you, your Honour.  That is the document I was referring to.

HER HONOUR:   Yes, I see that, and annexed to that is the Integrated Client Services Environment computer printout, which, as I understand it, evidences that the plaintiff departed Australia on 12 October 2012.

MR KNOWLES:   Yes, your Honour, and that is demonstrated by the screenshot on the lower half of annexure A, and the first field in which there is a direction that says “D”, which I am told stands for “Departure”.

HER HONOUR:   Yes.

MR KNOWLES:   In those circumstances, your Honour, it is the first defendant’s submission that the relief sought by the plaintiff would be futile because it would be not possible for the Tribunal to grant the relief sought in circumstances where the plaintiff has departed Australia and has no right of re‑entry.

HER HONOUR:   Yes.  The plaintiff was seeking to challenge a determination of the Refugee Review Tribunal affirming the decision of the delegate not to grant a protection visa.  That is the position, is it not?

MR KNOWLES:   Yes, your Honour.

HER HONOUR:   Do you also rely on the affidavit of Ms Baggett affirmed and filed on 6 December 2012?

MR KNOWLES:   I do, your Honour, to explain the procedural history of this matter, and relevantly that is that although no application for judicial review was ever filed, the plaintiff had an opportunity to seek judicial review, but instead it would appear made numerous requests for the first respondent to exercise one or other of the dispensing powers available to him.

HER HONOUR:   Yes, thank you, Mr Knowles. 

On 25 September 2012, the plaintiff filed an application for an order to show cause claiming constitutional writ relief arising out of the determination of the Refugee Review Tribunal to affirm the decision of the first defendant’s delegate refusing to grant him a protection visa. 

On 5 November 2012, the first defendant filed a summons seeking to have the plaintiff’s application dismissed and an order that the plaintiff pay the first defendant’s costs.  The second defendant, the Refugee Review Tribunal, has filed a submitting appearance.

I am satisfied, having regard to the contents of the affidavit of Emily Baggett affirmed on 6 December 2012, that the plaintiff departed from Australia on 12 October 2012. In the first defendant’s outline of submissions the relief claimed in his summons is based on the futility of the proceedings in circumstances in which the determination the subject of challenge, as earlier noted, concerns the refusal of a protection visa. A protection visa may only be granted under section 36(2) of the Migration Act 1958 (Cth) to a non‑citizen in Australia. As the first defendant submits, even if the plaintiff were to be successful in demonstrating jurisdictional error on the part of the second defendant, he is not eligible for the grant of a protection visa for the reason that he is not in Australia. In light of that, it is unnecessary for me to address the second ground for the relief claimed, which is the delay in bringing the present proceeding.

In the circumstances, I make the following order.  The application for an order to show cause filed by the plaintiff on 25 September 2012 is dismissed.  The plaintiff is to pay the first defendant’s costs.

AT 11.01 AM THE MATTER WAS CONCLUDED