Plaintiff S317/2011 v Minister for Immigration and Citizenship & Anor

[2012] HCATrans 326

[2012] HCATrans 326

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S317 of 2011

B e t w e e n -

PLAINTIFF S317/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 DECEMBER 2012, AT 12.15 PM

Copyright in the High Court of Australia

HIS HONOUR:   Please call the plaintiff outside 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 regarding the plaintiff being offshore and attempts at service.

HIS HONOUR:   I grant to the defendants leave to file in Court an affidavit affirmed on 30 November 2012 of Sylwia Iwona Kuzmiczenko.

On 15 September 2011, the plaintiff filed an application for an order to show cause why prerogative writs and other relief should not run. She 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 the solicitors 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. A communication between Parish Patience and the plaintiff elicited from her the statement that she was leaving Australia.

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 evidence that the plaintiff is no longer in Australia and does not hold a current visa for entry into Australia.  That is a further reason for dismissing the plaintiff’s application. 

Further, evidence filed in Court this morning reveals that an attempt by the Department of Immigration to serve on the plaintiff at the last address known to the Department of the plaintiff failed.  The form of attempted service was by means of documents enclosed in an express post envelope.  That envelope was posted but no reply has been received and no appearance took place today. 

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

AT 12.18 PM THE MATTER WAS CONCLUDED