Applicant S453 of 2003 v MIMIA [2005] HCATrans 515 (5 August 2005)

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Applicant S453 of 2003 v MIMIA [2005] HCATrans 515 (5 August 2005)

Last Updated: 25 August 2005

[2005] HCATrans 515

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S450 of 2004

B e t w e e n -

APPLICANT S453 OF 2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 AUGUST 2005, AT 8.52 AM

Copyright in the High Court of Australia

McHUGH J: On 21 May 1998 the respondent, through a delegate, refused the applicant’s application for a protection visa. The Refugee Review Tribunal affirmed that decision. The applicant filed an application for judicial review, but it was dismissed by consent. An application to set aside the consent orders was dismissed by Tamberlin J. An appeal against his decision to the Full Federal Court failed, and this Court refused special leave to appeal on 8 September 2000.

On 12 August 2003 the applicant sought an order under s 75(v) of the Constitution apparently directed to quashing the respondent’s decision to impose conditions on certain bridging visas granted successively from about 2000; seeking an order that would compel the respondent to give the applicant access to Medicare; and seeking damages.

Sackville J refused the application for an order nisi on the following grounds. First, the regulation imposing no work and no study conditions on the applicant was not ultra vires the Migration Act 1958 (Cth). Secondly, whether or not the regulation relating to the no work condition was unreasonable, arbitrary or perverse did not affect its validity. Thirdly, the Act was not invalid. Fourthly, the applicant had not identified any basis of entitlement to Medicare benefits. Finally, no duty of care had been identified, and the Minister would not be in breach of any duty of care in acting in conformity with the legislation.

Hill J then dismissed a notice of motion filed by the applicant seeking leave to appeal. He did so because he found that no error of principle in Sackville J’s reasoning had been demonstrated, and concluded that an appeal would have no reasonable prospects of success.

The applicant’s special leave application has not demonstrated any error in the reasoning of Hill J. The various allegations against Sackville J, his associate, and Hill J of bias and procedural unfairness are baseless. It is therefore not necessary to deal with a contention by the respondent that no appeal to this Court lies from a judgment of a single Federal Court judge. An appeal would have no prospects of success. The application must be dismissed.

Under the power conferred by r 41.11.1 we direct the Registrar to draw up, sign and seal an order that the application is dismissed with costs. I publish our joint reasons.

AT 8.52 AM THE MATTER WAS CONCLUDED