Plaintiff S39/2019 v Minister for Home Affairs & Anor

[2019] HCATrans 146

[2019] HCATrans 146

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S39 of 2019

B e t w e e n -

PLAINTIFF S39/2019

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

IMMIGRATION ASSESSMENT AUTHORITY

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 JULY 2019, AT 10.01 AM

Copyright in the High Court of Australia

MR N.D.J. SWAN:   May it please, your Honour, I appear for the first defendant, the Minister.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you, Mr Swan.  I notice that the plaintiff is not at the Bar table.  Could the matter be called outside the Court, please?

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Thanks very much.  I note that there is no appearance by the plaintiff.  How should we proceed, Mr Swan?

MR SWAN:   Your Honour, there is, of course, the power under the Rules to dismiss on account of non‑attendance and we would make an application.

HIS HONOUR:   Yes.  What rule was that?

MR SWAN:   I have a copy if it would assist, your Honour.

HIS HONOUR:   No, I have the Rules.

MR SWAN:   Yes, it is rule 25.09.3(a).

HIS HONOUR:   Yes.  Your position would also be that the application discloses no arguable basis for the relief sought in any event.

MR SWAN:   Yes, it is devoid of any merit.

HIS HONOUR:   Thank you.  To deal with it on that basis I would need to take into account the affidavit that you have filed, I think.

MR SWAN:   Yes, which explains the fact that it appears that the application is drawn from another person’s ‑ ‑ ‑

HIS HONOUR:   You should formally read that affidavit, I think.

MR SWAN:   Your Honour, I read the affidavit of Mr Jonathan Charles Hutton sworn 10 April 2019. 

HIS HONOUR:   Yes, thank you.  I have looked at your submissions, Mr Swan.  I do not need to detain you any further.

MR SWAN:   If the Court pleases.

HIS HONOUR:   On 27 February 2019, the plaintiff filed an application for a constitutional or other writ in the original jurisdiction of this Court.  By the application the plaintiff seeks an order, which I take to be an order in the nature of certiorari, setting aside what is described in the application as “the decision of the Federal Court of Australia in NSD441/2018 v Minister for Immigration and Border Protection & Anor [2018] FCA 1773 dated 19 November 2018”.

By the application the plaintiff seeks as well writs of mandamus requiring the first defendant, the Minister for Home Affairs, and the second defendant, the Immigration Assessment Authority, to determine his application according to law.  The single ground identified in the application is an alleged error on the part of the primary judge in failing to find jurisdictional error in the Authority’s failure to consider “the CAT report”. 

Filed with the application on 27 February 2019 was a supporting affidavit affirmed by the plaintiff which exhibited the decision of Justice Banks‑Smith in the Federal Court in the matter of AZJ16 v Minister for Immigration and Border Protection [2018] FCA 1390 delivered on 12 September 2018 in a proceeding which bore the Federal Court identifier “NSD 441 of 2018”. By that decision her Honour refused an application for an extension of time to appeal from a decision of Judge Emmett in the Federal Circuit Court in AZJ16 v Minister for Immigration and Border Protection [2018] FCCA 365 dismissing an application for judicial review of a decision of the Immigration Assessment Authority made on 24 March 2016 affirming a decision of a delegate of the Minister for Immigration and Border Protection to refuse the applicant a Safe Haven Enterprise (subclass 790) visa.

I am satisfied on the basis of the affidavit of Jonathan Charles Hutton filed by the Minister that those identified decisions relate to the plaintiff.  There appears, however, to be confusion in the way that the application and supporting affidavit have been framed in that the facts asserted by the plaintiff and the sole ground of the application appear to pertain to an unrelated decision of Justice Banks‑Smith in the matter of CYN17 v Minister for Immigration and Border Protection [2018] FCA 1773 in which the issue for consideration related to a decision of the Authority to decline to consider a Committee Against Torture report as new information under section 473DD of the Migration Act 1958 (Cth).

By letter dated 26 April 2019, a Registrar of this Court wrote to the plaintiff at his address for service advising that his affidavit and application referred extensively to details pertaining to another plaintiff and directed that an amended application for a constitutional or other writ be filed by 10 May 2019.  No such amended application was filed. 

On 29 May 2019, a document entitled “Outline of Submissions for Applicant” was emailed to the Deputy Registrar by a person who may or may not be the plaintiff who identified himself or herself simply as “Nathan”. The document largely repeated the terms of the application for a constitutional or other writ filed on 27 February 2019 and was not accepted for filing. If not the plaintiff, then the person identifying as “Nathan” would do well to take note of the provisions of Part 3 of the Migration Act, in particular the terms of section 280.

By a further letter dated 26 June 2016, a Deputy Registrar of the Court wrote to the plaintiff at his address for service notifying that the matter would be listed for hearing today.  The plaintiff has failed to appear. 

It is submitted by Mr Swan, on behalf of the first defendant, that it would be open to me to dismiss the application in those circumstances in reliance simply on rule 25.09.3(a).  So it would, but it is also clear beyond the glimmer of an argument that the application does not disclose an arguable basis for the relief sought and that it is an abuse of the process of the Court.  In those circumstances it is appropriate also for it to be dismissed under rule 25.09.3(b).  The plaintiff does not advance, let alone establish by the application, any jurisdictional error in relation to decisions of the Federal Court or of either defendant in relation to which the plaintiff was a party.

In those circumstances the only order that I make is that the application is dismissed under rule 25.09.3 with costs.

The Court will now adjourn.

AT 10.10 AM THE MATTER WAS CONCLUDED