Plaintiff M67/2005 v MIMIA & Anor [2005] HCATrans 983 (23 November 2005)

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Plaintiff M67/2005 v MIMIA & Anor [2005] HCATrans 983 (23 November 2005)

Last Updated: 25 November 2005

[2005] HCATrans 983

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M67 of 2005

B e t w e e n -

PLAINTIFF M67/2005

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

MARGRET HOLMES (MEMBER CONSTITUTED THE REFUGEE REVIEW TRIBUNAL)

Second Defendant

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 23 NOVEMBER 2005, AT 10.19 AM

Copyright in the High Court of Australia

PLAINTIFF M67/2005 appeared in person.

MR C.J. HORAN: If your Honour pleases, I appear for the first defendant. (instructed by Clayton Utz)

HIS HONOUR: Sir, do you need the help of an interpreter?

PLAINTIFF M67/2005: Yes.

HIS HONOUR: Perhaps if we could swear or affirm the interpreter again, please.

RAJ VIDIVELU, sworn as interpreter:

HIS HONOUR: Mr Horan, it is your application, I think, is it not, on the summons of 13 September 2005?

MR HORAN: Yes, your Honour. That is supported by an affidavit of Mr Tom Mosby which is sworn on the same date.

HIS HONOUR: Yes. You read the affidavit of Mr Mosby, do you?

MR HORAN: Yes, your Honour.

HIS HONOUR: Mr Interpreter, would you be good enough to ask the plaintiff whether there is any objection to my taking the evidence of Mr Mosby’s affidavit of 13 September.

PLAINTIFF M67/2005 (through interpreter): I have no objection, your Honour.

HIS HONOUR: Yes, thank you. I note with interest that there has been an adoption of common form in this which would repay a little greater care in the preparation of documents to be sworn. There is a contrast, is there not, between paragraphs 4 and 5 about the identity of the magistrate?

MR HORAN: Yes, your Honour, I noticed that.

HIS HONOUR: I do not think sheep stations turn on it but these things have to be got right.

MR HORAN: Yes, your Honour. The second-mentioned reference should be to Federal Magistrate Phipps. Your Honour will see from the dates set out through the affidavit that the Tribunal’s decision was handed down on 1 August 2003 and the present application was filed on 26 June 2005, so the relevant period between the decision under challenge and this application is just under two years. Although the Minister has moved for dismissal, in another sense it is for the applicant ultimately to demonstrate that there is an arguable case for the grant of relief and that there is good reason, or in fact exceptional circumstances, for the grant of an extension of time in respect of certiorari and mandamus.

HIS HONOUR: I understand the second point. I am not sure that I would unthinkingly adopt the first point.

MR HORAN: The Minister’s submission is that there is no good reason demonstrated in this case for the grant of an extension of time. There have been previous proceedings in the Federal Magistrates Court and the Federal Court. Looking at the chronology, it appears that they have perhaps explained the period between the Tribunal’s decision and the present application in that the applicant during that period was progressing the proceedings in those other courts which were ultimately dismissed both at first instance and on appeal. I think, as your Honour has observed on other occasions, the fact that proceedings have been pursued in other courts is not a justification for bringing a further application in this Court outside the times prescribed by the Rules.

The application to the Federal Magistrates Court, your Honour, appears as exhibit TBM1 and the application was brought under section 39B of the Judiciary Act and section 475A of the Migration Act. The grounds of the application were not set out in the application itself. The applicant filed an affidavit in support of the application which did set out some matters which might be described as going largely to the merits of the Tribunal decision, but on the hearing of the application and on the appeal the applicant was represented by Mr Fernandez, who was described as a solicitor at first instance and as counsel on appeal, but in either case the case that was put in those courts advanced grounds turning on whether the Tribunal had failed to properly consider certain aspects of claims that were made by the applicant.

The present application contains no particulars of grounds. I think there are three matters mentioned in the draft order nisi by way of grounds in very general terms which comprise a failure to comply with sections 36 and 65 of the Migration Act, a failure to accord procedural fairness and apprehended bias. However, there is nothing advanced either in the application or in any supporting material to give any content to the grounds
that are now sought to be relied upon, all of which could have been relied upon in the previous proceedings.

So for those reasons, your Honour, insofar as the applicant seeks mandamus and certiorari, the Court should refuse to grant an extension of time and insofar as other relief is sought, that relief is premised upon the quashing of the Tribunal’s decision. So there would be no arguable case for any such relief to be granted and the application should be dismissed.

HIS HONOUR: Thank you. Mr Interpreter, would you be good enough to say this to the plaintiff. The Minister is asking me to dismiss his application today. The Minister makes this argument. Step one is that the application in this Court is made after the times fixed by the Rules of Court. Step two is the plaintiff has already made application to the Federal Magistrates Court and the Federal Court and failed. Step three is in those circumstances the Minister says that the application for extension of time to start the proceedings should be refused. Step four is without getting an extension of time, the application as a whole must be dismissed. Now is the chance for the plaintiff to say what he wants to say in answer to that argument.

PLAINTIFF M67/2005 (through interpreter): I was not sure whether I was within time or not but I was under the belief that I was well within time. I was represented by Mr Fernandez at the first occasion and I was not told that I was out of time at any stage. At the first instance when I lost this application I was told at the Registry that there was some mistake or discrepancies, so for that reason I went back and I came in a few days’ time. So that may be the reason for the delay in time.

HIS HONOUR: Can I interrupt you and say this. The time that has expired is the time of six months after the decision of the Tribunal. That is the time that is in question. I interrupted you. Please go on.

PLAINTIFF M67/2005 (through interpreter): After the Tribunal reached its decision I went to the courts, so that could be the reason for the lengthy delay, but I am not too sure as to what fate will fall on me if I were to go back to my country. So in that instance I beg this Court to give some relief. The other thing is I am not too sure how to proceed with this matter because we were not given proper advice as to what course of action we should take at a given time. So for that reason I may not have included vital information in these matters, so your Honour has to take that into consideration. So I leave it in your Honour’s hands and I seek compassion from your Honour and seek the relief which I have sought.

HIS HONOUR: Thank you very much. Thank you, Mr Interpreter.

On 24 June 2005 the plaintiff filed an application for an order to show cause seeking certiorari directed to the Minister for Immigration and Multicultural and Indigenous Affairs and to the member who constituted the Refugee Review Tribunal to quash the decision of the Tribunal made on 10 July 2003 affirming the decision of a delegate of the Minister not to grant the plaintiff a protection visa. The application in this Court further seeks prohibition to prevent the Minister from acting on the Tribunal’s decision and mandamus, although expressed to quash the decision of the Tribunal, presumably mandamus to compel the Tribunal to perform its function of reviewing the decision of the delegate.

After the Tribunal made its decision in July 2003 the plaintiff made application to the Federal Magistrates Court for relief under section 39B of the Judiciary Act 1903 (Cth). That application was dismissed by the Federal Magistrates Court on 23 December 2004. The plaintiff appealed to the Federal Court of Australia and Justice North, exercising the appellate jurisdiction of that court, dismissed the appeal on 26 May 2005. Following that decision the plaintiff commenced the proceedings in this Court on 24 June 2005.

The Minister now applies for orders in effect summarily terminating the proceedings. The Minister points out, as is the fact, that the application to this Court is made well beyond the times fixed by the Rules of Court for making application for certiorari – see rule 25.06.1 – and mandamus – see rule 25.07.2. The Minister submits that, having regard to the course of events which I have described, no case is made for extending the time within which certiorari or mandamus should be granted and that, because the other relief which the plaintiff would seek in the proceedings is necessarily premised upon the grant of certiorari to quash the decision of the Tribunal, the proceedings which the plaintiff has instituted are bound to fail.

As I have noted in other cases, the times fixed by the Rules of Court as the times within which application must be made for the grant of certiorari or mandamus are times that are fixed having regard to the fact that the writs which it is sought to have issued are directed at the acts or decisions of public bodies or officials. As Justice McHugh remarked in Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 at 495, paragraph [15]:

the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

As his Honour also said in that decision[2000] HCA 67; , 177 ALR 491 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.

Given that the plaintiff has already once resorted to the judicial power of the Commonwealth by making application to the Federal Magistrates Court for relief of the same kind as he would seek from this Court by the proceedings he has instituted here, and given further that the proceedings in the Federal Magistrates Court have been prosecuted to a conclusion and to a subsequent unsuccessful appeal to the Federal Court of Australia, no ground is shown for granting an extension of time within which the present application insofar as it seeks certiorari or mandamus should be granted.

Insofar as the plaintiff would seek other relief from this Court, in particular insofar as he would seek the issue of prohibition, the grant of that relief is premised upon the quashing of the decision made by the Tribunal. Given that I am of the opinion 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 premise for the grant of prohibition is a premise that could not be established.

In all the circumstances I am of the opinion that it is plain that the proceedings which the plaintiff has instituted are proceedings which must fail. That being so, rather than remit them to another court for hearing and determination, it is better that they be brought to an end in this Court now.

Accordingly, I will order that the proceedings stand dismissed. It is inevitable that they must be dismissed with costs. Those orders are therefore made.

Thank you very much for your assistance, Mr Interpreter. The plaintiff may go.

AT 10.40 AM THE MATTER WAS CONCLUDED