Plaintiffs M107-2005 v MIMIA

[2006] HCATrans 70

[2006] HCATrans 070

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M107 of 2005

B e t w e e n -

PLAINTIFFS M107/2005

Plaintiffs

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

KIM BOYD IN HER CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Defendant

Summons

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 FEBRUARY 2006, AT 10.01 AM

Copyright in the High Court of Australia

PLAINTIFF M107/2005 appeared in person.

MR R.C. KNOWLES:   If it pleases the Court, I appear for the first defendant.  (instructed by Clayton Utz)

SARABJEET SINGH, affirmed as interpreter:

HER HONOUR:   Yes, Mr Knowles.

MR KNOWLES:   Yes, your Honour, in this matter a summons was filed on 16 November last year by the first defendant and in that regard there was also an affidavit of Tom Mosby dated 16 November last year, which was filed and served.  I ask that that affidavit be taken as read.

HER HONOUR:   Yes.  In this case the application is four years after the ‑ ‑ ‑

MR KNOWLES:   That is right, your Honour, yes.  It is a little less perhaps than four years out of time in relation to certiorari and over four years out of time in relation to mandamus.

HER HONOUR:   Yes.

MR KNOWLES:   There have not been prior judicial review proceedings, but in the circumstances where there is such a considerable delay and where there is, it is submitted, no exceptional circumstances demonstrated by the plaintiff as to the reason for that delay, the matter ought to be dismissed and in that regard I would rely on the principles enunciated by Justice McHugh in the case of Marks to which your Honour earlier referred.

HER HONOUR:   Yes.  I do not think I need to trouble you further, Mr Knowles.

MR KNOWLES:   No, thank you, your Honour.

HER HONOUR:   You will appreciate that the application by the Minister is to have the proceedings dismissed.  That would be dismissed with costs, I assume, Mr Knowles?

MR KNOWLES:   It would, your Honour, yes.

HER HONOUR:   Yes, to have the proceedings dismissed with an order for costs.  I invite the applicant to inform the Court of any matters which he wishes to state which will particularly go to the reasons why an extension of time should be granted.

PLAINTIFF M107/2005 (through interpreter):   I do not have any job.  I cannot work because I do not have a work permit.  My family is helping me.

HER HONOUR:   Yes.  Is that all he wishes to say?

PLAINTIFF M107/2005 (through interpreter):   I do not have any place to live in Fiji.

HER HONOUR:   Yes.

PLAINTIFF M107/2005 (through interpreter):   My kids were born here and now they have grown up over here they are used to this place.  I do not have any house in Fiji.  I do not have any job in Fiji.  Indians do not get a licence, fishing licence, in Fiji.

HER HONOUR:   Yes, thank you.

On 8 September 2005 the plaintiffs, a husband, wife and three children who are Fijian citizens, commenced a proceeding in the original jurisdiction of the Court seeking relief directed to a decision of the Refugee Review Tribunal made on 23 March 2001. 

The plaintiffs made an application for a protection visa on 11 January 2000.  The delegate of the Minister refused that application on 24 March 2000 and the plaintiff sought review of this decision by the Refugee Review Tribunal.  On 23 March 2001 the Tribunal affirmed the decision of the Minister not to grant the plaintiffs a protection visa.

After the dismissal of proceedings in the Tribunal, the plaintiffs instituted proceedings in the original jurisdiction of this Court, which gives rise to the present application by the Minister for orders terminating the proceedings summarily.  The Minister submits that the application to this Court is made well beyond the times fixed by the Rules of Court for making application for certiorari and mandamus:  see rule 25.06.01 and 25.07.2.  Having regard to the circumstances of this case, no case is made for extending time within which certiorari or mandamus should be granted and that, because other relief which the plaintiffs would seek in the proceedings is necessarily premised upon the grant of certiorari to quash the decision of the Tribunal, the proceedings which the plaintiffs have instituted are bound to fail. 

The availability of prohibition and injunction depends upon whether the impugned decision of the Tribunal is liable to be quashed by granting certiorari:  for example, see Re Ruddock; Ex Parte Reyes (2000) 177 ALR 484 per Justice McHugh. Thus, the critical question in the present matter is whether any extension of time should be granted. As Justice McHugh remarked in Re Commonwealth; Ex Parte Marks (2000) 177 ALR 491 at 495 paragraph [15]:

‘[Constitutional or prerogative writs] are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.’

His Honour also said in that decision at 496 paragraph [16]:

‘The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court.  In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.’

In the present case, the application was made just short of four years in respect of certiorari and a little over four years in respect of mandamus, after the decision of the Tribunal was handed down.  It may be that the expiration of so long a time is of itself sufficient reason to refuse extension of time save in the more exceptional circumstances.

The plaintiff has informed the Court he does not have a job or house in Fiji and his children were born here.  These matters do not bear on whether this is a more exceptional case for the purposes of an extension of time in all the circumstances.  Given that the plaintiffs in this case chose not to challenge the Tribunal decision by way of appeal to the Federal Court system, no ground is shown for granting an extension of time within which the present application, insofar as it seeks certiorari or mandamus, might be brought.

Insofar as the plaintiffs would seek other relief from this Court, in particular the issue of prohibition or a declaration, the grant of that relief is premised upon the quashing of the decision made by the Tribunal.  Given that no case is made out for extending the time within which application may be made for certiorari to quash the decision of the Tribunal, it would follow that the basis for the grant of any other relief cannot be established. 

In all the circumstances, the proceedings which the plaintiffs have instituted must fail.  That being so, rather than remit them to another court for hearing and determination, it is preferable that they be brought to an end in this Court now.  Accordingly I order that the proceedings be dismissed with costs.

MR KNOWLES:   If your Honour pleases.

AT 10.10 AM THE MATTER WAS CONCLUDED