Plaintiff M70/2005 v MIMIA & Anor [2005] HCATrans 770 (22 September 2005)

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Plaintiff M70/2005 v MIMIA & Anor [2005] HCATrans 770 (22 September 2005)

Last Updated: 28 September 2005

[2005] HCATrans 770

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M70 of 2005

B e t w e e n -

PLAINTIFF M70/2005

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

JULIE GOULD OF REFUGEE REVIEW TRIBUNAL

Second Defendant

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 22 SEPTEMBER 2005, AT 10.45 AM

Copyright in the High Court of Australia

PLAINTIFF M70/2005 appeared in person.

MR E.J.C. HEEREY: If the Court pleases, I appear for the Minister. (instructed by Clayton Utz)

RANJITH SOYSA, affirmed as interpreter:

HIS HONOUR: Yes, thank you, Mr Soysa. Would you explain to the plaintiff, again, that the Minister is asking for orders that will terminate her proceeding, or stop her proceeding today? I will hear what the Minister’s counsel has to say first and I will then ask the plaintiff what she wants to say in answer. So if, in the meantime, you would both sit there and if you, Mr Interpreter, would be good enough to translate what is said by Mr Heerey to the plaintiff as we go. Yes, Mr Heerey.

MR HEEREY: This case is about a decision of the Refugee Review Tribunal - - -

HIS HONOUR: You are moving on the summons of 13 September?

MR HEEREY: Yes, your Honour.

HIS HONOUR: And the affidavit is that of Ms O’Regan?

MR HEEREY: Yes, your Honour.

HIS HONOUR: The affidavit of, again, I think 13 September, is it?

MR HEEREY: That is correct.

HIS HONOUR: Could you ask the plaintiff whether there is any reason why I should not have and read the affidavit?

PLAINTIFF M70/2005 (through interpreter): I cannot understand.

HIS HONOUR: The Minister wants to rely on the affidavit of Ms O’Regan.

PLAINTIFF M70/2005 (through interpreter): No.

HIS HONOUR: Thank you. Yes, Mr Heerey.

MR HEEREY: Your Honour, as set out in that affidavit, the relevant Tribunal decision is a decision of the Refugee Review Tribunal of 4 July 2003.

HIS HONOUR: Just a moment, 4 July?

MR HEEREY: Well, 4 July was the date it was handed down, your Honour and 12 June is the official date of the decision but I am giving the plaintiff the benefit of the handing down date.

HIS HONOUR: Yes, thank you.

MR HEEREY: On 31 July there was an application for judicial review of that decision made by the plaintiff to the Federal Court. On 16 September 2003 his Honour Justice Finkelstein transferred the application to the Federal Magistrates Court. The matter came on for final hearing before Federal Magistrate Phipps on 17 December 2004. The learned Federal Magistrate considered the application on its merits and issued a judgment and orders on 23 December 2004 which dismissed the proceeding with costs.

On 12 January 2005 the plaintiff filed a notice of appeal in the Federal Court. That appeal came on for final hearing before his Honour Justice Marshall on 31 May 2005. The plaintiff did not appear at that final hearing. On that day his Honour Justice Marshall issued a judgment which dealt with the merits of the appeal and considered the Tribunal’s decision and the learned Federal Magistrate’s decision and the written outline of submissions filed by the appellant. His Honour Justice Marshall dismissed the appeal with costs.

On 27 June 2005, the plaintiff issued the present proceeding in this Court. Insofar as the present proceeding seeks an order of mandamus, that application is 21 months out of time. Insofar as the present application seeks certiorari, that application is 17 months out of time. Insofar as the present application seeks prohibition, it is my submission, on the basis of the submissions made earlier this morning, that that is an inappropriate remedy and must fail.

Insofar as the plaintiff requires an enlargement of time to prosecute her application for mandamus or certiorari, my submission is that that enlargement of time should be refused either by reference to the sheer time by which this application is brought out of time and further, or alternatively, by reference to the fact that the plaintiff has sought judicial review of the relevant decision in the Federal Magistrates Court and in the appeal by the
Federal Court, which in both instances was dealt with on the merits by way of final orders.

I also reserve my right to argue that the principles of res judicata, Anshun estoppel and abuse of process apply but I will not press that further for the time being in light of your Honour’s comments earlier.

HIS HONOUR: Thank you, Mr Heerey. This is the opportunity for the plaintiff to say what she wants to say in answer to what has been said against her.

PLAINTIFF M70/2005 (through interpreter): There is nothing which I can say, your Honour.

HIS HONOUR: Yes, thank you. Do sit down, Mr Interpreter.

On 27 June 2005 the plaintiff commenced a proceeding in the original jurisdiction of the Court seeking relief directed to a decision of the Refugee Review Tribunal made on 12 June 2003 and published on 4 July 2003.

The plaintiff had arrived in Australia on 12 August 2000 and had made an application for a protection visa on 14 September of that year. A delegate of the Minister refused that application on 28 September 2000 and the plaintiff at once sought review of that refusal by the Refugee Review Tribunal. Not until 26 November 2002 did the plaintiff give oral evidence to the Tribunal in support of her application for review of the refusal by a delegate of the Minister to grant her a protection visa but the Tribunal affirmed that refusal by its decision made on 12 June 2003 and published on 4 July 2003.

After the Tribunal had made its decision affirming refusal of the protection visa the plaintiff applied for judicial review by the Federal Court of the Tribunal’s decision. That application was made on 31 July 2003, but by order made on 16 September of that year the Federal Court remitted the matter to the Federal Magistrates Court. The application for judicial review came on before Federal Magistrate Phipps on 17 December 2004 and on 23 December 2004 his Honour dismissed the application that the plaintiff had made.

The plaintiff filed a notice of appeal against the orders of Federal Magistrate Phipps on 12 January 2005 and the matter came on for hearing before Justice Marshall of the Federal Court exercising the appellate jurisdiction of that court on 31 May 2005. The plaintiff did not appear to prosecute her appeal but Justice Marshall considered the appeal on its merits and concluded that it should be dismissed and made orders accordingly. Only after the dismissal of that appeal did the plaintiff commence the present proceeding in the Court on 27 June 2005.

As counsel for the Minister pointed out in support of the application made by the Minister, in effect, for summary termination of the proceedings, the application to this Court was made 21 months beyond the time fixed by the Rules of Court for making application for mandamus and 17 months beyond the time fixed by the Rules of Court for seeking certiorari.

The Minister submitted that consistent with the decisions I have made on earlier occasions I should hold that insofar as the plaintiff seeks prohibition and injunction, remedies of that kind should not go unless it is demonstrated that certiorari to quash the Tribunal’s decision would be issued or mandamus directed to the Tribunal would go requiring it to hear and determine the matter in accordance with law. Further, the Minister submitted, the course of events being as I have described them, there is, so it is submitted, no occasion to grant the extension of time which is sought to seek relief by way of mandamus and certiorari and, that being so, the proceeding as a whole should now be summarily terminated.

As I have said on other occasions, the time limits fixed for application for mandamus and certiorari are fixed having regard to the public interest that there is in requiring an end to litigation about the efficacy of the acts or decisions of public bodies or officials. See, in that regard, Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 per Justice McHugh, particularly at 495, paragraph [15].

Where, as in the present case, the plaintiff sought judicial review of the Refugee Review Tribunal decision but failed in that application in the Federal Magistrates Court and failed again in her appeal against that decision, the intervention of those events provide powerful reason not to grant the extension of time which would be necessary to the plaintiff succeeding in her present application.

In my opinion, the present proceedings are doomed to fail and, that being so, the Minister should have orders of the kind sought in her application. In particular there should be orders that the proceeding is dismissed.

Mr Heerey, do you seek costs?

MR HEEREY: Yes, your Honour.

HIS HONOUR: Yes. Is there anything the plaintiff can say against an order for costs?

PLAINTIFF M70/2005 (through interpreter): At this stage I am not employed, therefore, I think that I will not be able to pay the costs to the Court.

HIS HONOUR: Yes, I understand that. Notwithstanding what the plaintiff has said, the proceeding must be dismissed with costs.

AT 11.04 AM THE MATTER WAS CONCLUDED