Plaintiff S289/2012 v Minister for Immigration and Citizenship

[2012] HCATrans 340

[2012] HCATrans 340

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S289 of 2012

B e t w e e n -

PLAINTIFF S289/2012

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

Application for order to show cause

BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 10 DECEMBER 2012, AT 11.02 AM

Copyright in the High Court of Australia

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

HER HONOUR:   Yes, thank you, Mr Knowles.

MR KNOWLES:   Your Honour, this is also a matter where the plaintiff departed Australia prior to the issue of the summons on which I will move that there is no utility in calling the matter.  I move on the summons of 15 November 2012.

HER HONOUR:   Yes.

MR KNOWLES:   I also seek to read the affidavit of Michelle Elizabeth Stone, affirmed 13 November 2012 and filed 15 November 2012.

HER HONOUR:   Yes, I have that.  Now, does Ms Stone depose to the plaintiff’s departure from Australia?

MR KNOWLES:   She does, your Honour, at paragraph 18 of her affidavit.

HER HONOUR:   Once again, this is based on information contained in the Integrated Client Services Environment computer database.

MR KNOWLES:   It is, your Honour, and that can be found at pages 151 and 152 of the affidavit.

HER HONOUR:   Yes.  On this occasion it is the top half of the screen print that shows the departure, I think, again with the direction with the capital “D”, is that right?

MR KNOWLES:   Yes, your Honour.

HER HONOUR:   Yes, very well.

MR KNOWLES:   This matter does have some distinguishing features from the previous matter.

HER HONOUR:   Yes, and what are those?

MR KNOWLES:   Firstly, your Honour, it would appear that there is only one defendant named and from the application for an order to show cause, although slightly unclear, it would seem that relief is sought against the decision of the delegate and not a decision of the tribunal.

HER HONOUR:   There appears to be no claim against the tribunal.

MR KNOWLES:   No, your Honour.

HER HONOUR:   Yes.

MR KNOWLES:   Which would be, in my respectful submission, another ground for discretionary refusal of relief in circumstances where the plaintiff has had both merits and judicial review available to her.

HER HONOUR:   Yes.

MR KNOWLES:   The second distinguishing feature from the previous case is that in this case the plaintiff did in fact engage judicial review processes in the Federal Magistrates Court, followed by an appeal to the Federal Court, followed by an unsuccessful application for special leave to this Court.

HER HONOUR:   Yes.

MR KNOWLES:   Otherwise, your Honour, the position is relevantly similar.  There are numerous matters, or reasons, set out in our written submissions for the dismissal of this case, but relevantly in circumstances where the applicant, or the plaintiff, is no longer in Australia it is, with respect, futile for this Court to grant the relief sought.

HER HONOUR:   Thank you, Mr Knowles. 

On 2 October 2012, the plaintiff filed an application for an order to show cause seeking constitutional writ relief.  The plaintiff’s claim is one that seeks to challenge the decision of the delegate of the first defendant, the Minister for Immigration and Citizenship, in refusing to grant the plaintiff a protection visa. 

The procedural history is set out in the affidavit of Michelle Elizabeth Stone, which was affirmed on 13 November 2012.  That discloses that the delegate’s decision was affirmed following a merits review before the Refugee Review Tribunal, the second defendant.  The second defendant has filed a submitting appearance.  Thereafter, judicial review proceedings were brought by the plaintiff before the Federal Magistrates Court.  An appeal from the decision of the Federal Magistrate was dismissed by the Federal Court of Australia.  An application for special leave to appeal was dismissed on 15 August 2012.

I am satisfied that the plaintiff departed from Australia on 12 October 2012.  The first defendant sets out a number of grounds for claiming the relief sought in its summons filed on 15 November 2012 that the plaintiff’s application be dismissed with costs.  It is sufficient to note that in circumstances in which I am satisfied that the plaintiff has departed Australia and remains offshore, even were the plaintiff to be successful in demonstrating jurisdictional error on the part of the delegate, the plaintiff is not eligible for a protection visa in circumstances in which she is not in Australia.  That conclusion makes it unnecessary for me to address the balance of the submissions in the defendant’s outline. 

For these reasons I make the following orders.  The application to show cause filed by the plaintiff on 2 October 2012 is dismissed.  The plaintiff is to pay the first defendant’s costs.

AT 11.10 AM THE MATTER WAS CONCLUDED