Plaintiff M85 of 2005 v MIMIA & Anor [2006] HCATrans 204 (27 April 2006)

--

Plaintiff M85 of 2005 v MIMIA & Anor [2006] HCATrans 204 (27 April 2006)

Last Updated: 4 May 2006

[2006] HCATrans 204

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M85 of 2005

B e t w e e n -

PLAINTIFF M85 OF 2005

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 27 APRIL 2006, AT 9.40 AM

Copyright in the High Court of Australia

MS S.E. MOORE: May it please the Court, I appear on behalf of the first defendant. I do not believe at this stage there is an appearance on behalf of the plaintiff. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes. We should have the plaintiff called. While that is occurring, Ms Moore, assuming as we do, that there is no appearance, what have we that demonstrates that the plaintiff is or should be aware of today’s - - -

MS MOORE: Yes, your Honour. I do have with me an original affidavit of service that I would seek to hand up.

HIS HONOUR: Yes, that may be filed in Court. Just one moment, Ms Moore.

COURT OFFICER: No appearance, your Honour.

HIS HONOUR: Yes, thank you. You seek leave to file in Court an affidavit of service by?

MS MOORE: I do, thank you, by Kendrah Jane Young, who is a legal assistant at the Australian Government Solicitor. If my instructor could hand it up to your Associate.

HIS HONOUR: Yes, thank you.

MS MOORE: Your Honour will see that she deposes in her affidavit to having served the plaintiff on 13 April 2006 with my client’s summons and the affidavit in support of Mr Carroll by sending it by prepaid post.

HIS HONOUR: Yes. What order do you say I should make?

MS MOORE: Your Honour should have the first defendant’s summons and the supporting affidavit by Mr Carroll sworn 11 April 2006 with accompanying affidavits. The orders that are sought at the outset by the first defendant are the orders that are set out in the summons. The summons is brought before the Court to have the application for order nisi filed by the plaintiff on 19 July 2005 to be dismissed on the basis of all or any of the grounds that are set out in the summons, either res judicata, issue estoppel, Anshun estoppel, abuse of process or a failure to file within time.

If your Honour has the affidavit of Mr Carroll before you, you will see that a brief history of the matter is set out in the affidavit.

HIS HONOUR: This is a subsequent application to the Court instituted in July 2005 after unsuccessful proceedings in the Federal Magistrates Court, is that right?

MS MOORE: That is right, your Honour. The original Tribunal decision that was sought to be reviewed both before the Federal Magistrates Court and now in this Court was a decision handed down on 18 May 2004, the Refugee Review Tribunal decision, and that is exhibit GC-1. Then the matter proceed by way of judicial review before Federal Magistrate Connolly at a hearing in May 2005 at which the plaintiff appeared on her own behalf and an ex tempore judgment was delivered by his Honour on that day and his Honour’s judgment - - -

HIS HONOUR: I am sorry, what day was the judgment in the Federal Magistrates Court?

MS MOORE: I am sorry, I withdraw that. It was not an ex tempore judgment. The judgment was delivered on 16 June 2005, as shown in exhibit GC-4. So that was delivered in June 2005 and then on 19 July 2005 the applicant filed the current application that is before this Court.

HIS HONOUR: Yes. As you may have observed looking at records of other matters in which issues like this have arisen, I have indicated that questions of estoppel and preclusion seem to me to raise large issues. They seem to me to raise issues about the availability of doctrines of preclusion in connection with public law remedies that the Court has not examined. In other comparable matters, however, it has been submitted and I have on other occasions at least accepted the submission that the applications for certiorari and mandamus being made out of time and beyond the times fixed by the Rules, whereas in this case there has been other and separate resort to judicial power. No sufficient reason is proffered, at least in other cases, for extending the time within which certiorari particularly may be sought and absent certiorari the other relief that is sought fails. I take it those submissions are repeated here?

MS MOORE: They are made, your Honour, and I do just formally note that in the applicant’s accompanying affidavit and in the content of her application she does not even seek an enlargement of time and it is clearly out of time for the six months and the two months.

HIS HONOUR: Yes. I need not, I think, trouble you further, Ms Moore.

MS MOORE: If your Honour pleases.

HIS HONOUR: The plaintiff is a female citizen of Indonesia. She claims to have been born in Fujian in the People’s Republic of China. She arrived in Australia on 1 September 2002 on a tourist visa but on 9 October 2002 made application for a protection visa. On 11 November 2002 a delegate of the Minister refused that application and the plaintiff sought review of that refusal by the Refugee Review Tribunal. On 18 May 2004 the Tribunal published its decision affirming the decision of the delegate not to grant a protection visa.

The plaintiff applied on 18 June 2004 to the Federal Magistrates Court for relief pursuant to section 39B of the Judiciary Act 1903 (Cth). That application came on for hearing in the Federal Magistrates Court in May 2005 and on 16 June 2005 Federal Magistrate Connolly dismissed the application with costs: see MZWMW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 798. The plaintiff, so the evidence reveals, did not seek to appeal against the decision of Federal Magistrate Connolly.

On 19 July 2005 the plaintiff filed an application for an order to show cause why relief should not be granted under section 75(v) of the Constitution, and otherwise, directed to the Refugee Review Tribunal in respect of the decision which it had published on 18 May 2004.

The Minister, who is named as first respondent to that application, now applies for orders summarily terminating the proceedings. A number of grounds are advanced in support of that application but for the moment it is necessary to consider only one set of grounds, those concerning the time within which application for certiorari may be instituted. Rule 25.06.1 of the High Court Rules 2004 provides that:

An order to show cause why a writ of certiorari should not issue to remove a judgment, order, conviction or other proceeding, for the purpose of its being quashed shall not be granted unless the application for the order is made not later than six months after the date of the judgment, order, conviction or other proceeding, or within such shorter period as may be prescribed by any law.

The present application for an order to show cause was made well outside that six-months period.

The application which the plaintiff make is not confined to an application for order nisi for certiorari. It extends, or should be treated as extending, to applications for prohibition or injunction The Rules of Court provide no time limit for the institution of proceedings seeking prohibition.

For the reasons I have indicated on a number of earlier occasions – see, for example, Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicants M31 of 2004 [2004] HCATrans 318 – insofar as the applicant in the present matter seeks prohibition or injunction, the application should stand dismissed.

Prohibition will not go to the Tribunal because so long as its decision stands there is no further proceeding of that body to prohibit. To the extent to which the applicant seeks certiorari to quash the Tribunal’s decision, the appropriate consequential remedy, if certiorari were to go, would not be prohibition; it would be mandamus compelling the Tribunal to conduct the review according to law and the application for mandamus is made well outside the two-month period fixed by the Rules of Court in rule 25.07.2.

As Justice McHugh pointed out in Re Ruddock; Ex parte Reyes (2000) 177 ALR 484 at 488 [23], prohibition would not go to the Minister to prohibit her from acting in accordance with the requirements of the Migration Act so long as the Tribunal’s decision remains intact or it would be the Act which prescribes the consequences that follow in respect of an unlawful non-citizen. Prohibition would, accordingly, be inapposite for so long as the Tribunal’s decision affirming refusal of the application for a protection visa remained unaffected.

It follows that the applicant must confront directly the difficulty presented by the application for certiorari and for mandamus being commenced out of time. Where, as in the present case, the application for certiorari and mandamus is first made well out of time but following previous unsuccessful resort to the judicial power of the Commonwealth seeking relief of a kind not substantially different from that which the applicant would now seek, the discretion to extend the time should not be exercised in the plaintiff’s favour.

As Justice McHugh said in Re Commonwealth; Ex parte Marks [2000] HCA 67; (2002) 177 ALR 491 at 495-496 [16], “In all but very exceptional cases the Rules of Court” – I interpolate, regulating the time within which application may be made for certiorari or mandamus – “should be rigidly applied”.

Where, as in the present case, the time has elapsed because the plaintiff has resorted to the judicial power of the Commonwealth but unsuccessfully to achieve the result which the plaintiff would now seek by the proceedings, I am of the view that it is demonstrated that the application is one which is bound to fail. That being so, the application for an order to show cause stands dismissed. It must be dismissed with costs.

AT 9.57 AM THE MATTER WAS CONCLUDED