Plaintiff S322-08 v MIAC & Anor

[2008] HCATrans 284

[2008] HCATrans 284

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S322 of 2008

B e t w e e n -

PLAINTIFF S322/2008

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

JUNE LEE DIRECTOR NSW REFUGEE AND HUMANITARIAN BRANCH

Second Defendant

Application for order to show cause

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 6 AUGUST 2008, AT 2.44 PM

Copyright in the High Court of Australia

PLAINTIFF S322/2008 appeared in person.

MR S.B. LLOYD:   I appear with MS C.C. SPRUCE.  (instructed by DLA Phillips Fox)

MOHAMMAD SHAMSUL ARAFEEN interpreter:

HIS HONOUR:   You filed an affidavit on 21 July and another affidavit on 23 July 2008, and an affidavit on 9 July 2008.  Is there any objection to those, Mr Lloyd?

MR LLOYD:   I am not sure we have the one from 9 July, your Honour.

HIS HONOUR:   I will hand you down a copy.

MR LLOYD:   I have no objection.

HIS HONOUR:   I have read those affidavits and you have filed written submissions, a document headed “Plaintiff’s Written Submissions” and I have read those written submissions.  Now, is there anything you want to say?

PLAINTIFF S322/2008 (through interpreter):   Your Honour, I would like to request to your Honour to look at the matter very carefully because I do believe that they have made a decision against me without looking into the proper documents and investigating it properly because though I have some cases in the courts, but when I went for obtaining the visa to the Department they forcefully wanted to deport me from Australia.

HIS HONOUR:   Is there anything else you want to add?

PLAINTIFF S322/2008 (through interpreter):   As I do not have any solicitor and I have applied to this Court so if I am granted for leave then I will get some more time to prepare my case properly.

HIS HONOUR:   When you say you do not have a solicitor, there is a lengthy document entitled “Plaintiff’s Written Submissions”.

PLAINTIFF S322/2008 (through interpreter):   Your Honour, I do not have any work permit so I did not have any money to get a lawyer, but my community people helped me to prepare this submission.

HIS HONOUR:   Are you suggesting that you want an adjournment of these proceedings?

PLAINTIFF S322/2008 (through interpreter):   Your Honour, I am just asking about some time so that I can prepare my case properly ‑ ‑ ‑

HIS HONOUR:   Why should I give you any further time?  These proceedings have been going for a long time already.  You made an unsuccessful application for special leave to appeal to this Court back in 2006, did you not?  Is that right?  Having regard to the length of time that has been taken by this matter so far, and in the expression “this matter” I include the earlier proceedings, and having regard to the lengthy and detailed written submissions that already been filed by you, I am not minded to grant an adjournment.  Is there anything else you wish to add?

PLAINTIFF S322/2008 (through interpreter):   Nothing further.

HIS HONOUR:   Thank you.  Mr Lloyd, the present proceedings were prompted by the letter of 13 June 2008, is that right, which is exhibit A to the affidavit filed on 9 July 2008?

MR LLOYD:   Yes I have the letter, I do not have the exhibit, but that is the one, 13 June 2008.

HIS HONOUR:   What I want get clear is the sequence of events.  On 1 August 2007, Justices Kirby and Callinan of this Court dismissed an application for special leave to appeal that had been commenced in 2006.  Is that correct?

MR LLOYD:   I must say, your Honour, it does not record that on my brief.  My brief says there was a special leave application that was dismissed on 13 December 2007.  Apparently there were two special leave applications, your Honour.

HIS HONOUR:   Just tell me what they were, please.

MR LLOYD:   There was an application dismissed by Federal Magistrate Driver on 4 May 2006, a matter called SZCVD.  Then, on 6 November, Justice Conti dismissed an appeal which is SZCVD [2006] FCA 1456 and then on 21 August 2007 the applicant sought special leave and that was dismissed as S421 of 2006.

HIS HONOUR:   According to the transcript of proceedings in front of me, that application for special leave to appeal was dismissed by Justices Kirby and Callinan in Canberra on Wednesday, 1 August 2007.

MR LLOYD:   Maybe I have a typo and maybe that should be the 1st and not 21 August.  Then there was a further application by the applicant to the Federal Magistrates Court on 18 September 2007 which was dismissed and there was an appeal from that to Justice Moore which was dismissed – sorry, that is what was dismissed on 13 December 2007.  So that it was only one special leave application, but a second, so that the end of the litigation was 13 December 2007.

HIS HONOUR:   Was that then followed by an application to the Minister to exercise the power given by section 417?

MR LLOYD:   In January 2008.

HIS HONOUR:   Yes, thank you.

Following protracted litigation, which included an unsuccessful application for special leave to appeal to this Court made in 2006 and dismissed on 1 August 2007, the plaintiff in early 2008 applied to the Minister to exercise the power conferred by section 417 of the Migration Act 1958 (Cth).

By a letter dated 13 June 2008, the Department of Immigration and Citizenship informed the plaintiff as follows:

You requested that Senator Chris Evans, Minister for Immigration and Citizenship, consider exercising the public interest power available under section 417 of the Migration Act 1958 (the Act). Under section 417, the Minister may substitute for a decision of the Refugee Review Tribunal, a decision which is more favourable to an applicant, if he thinks it is in the public interest to do so.

Your client’s case has been considered by Senator Chris Evans, Minister for Immigration and Citizenship.  I regret to advise that on 3 June 2008 he declined to consider exercising his power in this case.

The plaintiff then commenced the present proceedings, seeking constitutional and related relief in relation to the Minister’s having declined to consider exercising his power in this case.  The application has been supported by detailed written submissions and, to a minor extent, by oral argument put through an interpreter today.

The written submissions on behalf of the Minister contend, correctly in my view, that, having regard in particular to section 417(7) of the Migration Act, the plaintiff is unable to show any arguable basis for the relief sought in these proceedings.  In that respect, the Minister’s submissions refer in particular to the decision of this Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at paragraphs 48 and 100.

Nothing that has been advanced on behalf of the plaintiff discloses any arguable case for relief in this matter.  The application is dismissed with costs.

AT 2.56 PM THE MATTER WAS CONCLUDED