Plaintiff M115 of 2005 v MIMIA & Anor [2006] HCATrans 205 (27 April 2006)

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Plaintiff M115 of 2005 v MIMIA & Anor [2006] HCATrans 205 (27 April 2006)

Last Updated: 5 May 2006

[2006] HCATrans 205

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M115 of 2005

B e t w e e n -

PLAINTIFF M115 OF 2005

Plaintiff

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

THE REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 27 APRIL 2006, AT 9.57 AM

Copyright in the High Court of Australia

MR C.J. HORAN: If the Court pleases, I appear for the first defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Horan.

MR HORAN: Your Honour, I am not sure whether there is an appearance for the plaintiff. It does not appear so, so perhaps the plaintiff could be called.

HIS HONOUR: Yes, the plaintiff should be called.

COURT OFFICER: No appearance, your Honour.

HIS HONOUR: Thank you. Mr Horan, what do you say I should do in the matter?

MR HORAN: I would submit that a similar course should be adopted as in the previous matter, and that is that the Court should refuse to grant an extension or enlargement of time for seeking relief and dismiss the application.

HIS HONOUR: The Minister’s summons was served, I believe, on the plaintiff and that, I think, is the subject of the affidavit of Ms O’Regan of 13 April 2006, is that right, the affidavit of service?

MR HORAN: Yes, your Honour, that is right. The summons is supported by an affidavit also of Maria O’Regan sworn 5 April 2006.

HIS HONOUR: Yes. Am I right in understanding that the critical dates might be summarised as being a number of dates in 2003 for application for a protection visa, refusal, and application for review by the Tribunal; August 2004 the Tribunal affirms the decision not to grant a visa; application for review to the Federal Magistrates Court made in October 2004 but dismissed in 2005? Is that the essence of it?

MR HORAN: I think the date on which the Tribunal’s decision was handed down was 17 September 2004, although it was dated in August, as your Honour has observed.

HIS HONOUR: I am sorry, what hand-down date?

MR HORAN: 17 September 2004. I will just double check that.

HIS HONOUR: Yes.

MR HORAN: Yes, your Honour, and was dismissed, as your Honour has noted, by the Federal Magistrates Court. The proceedings for review were dismissed on 9 August 2005.

HIS HONOUR: And no subsequent proceedings by way of appeal?

MR HORAN: No, your Honour.

HIS HONOUR: Yes, thank you, Mr Horan.

MR HORAN: I should say, as these matters are being listed in order of the date of filing in this Court, this is in a similar position to the previous application in that it is governed by the regime which applied prior to the commencement of the Migration Litigation Reform Act 2005. In other words, it is governed by the time limits prescribed by the High Court Rules 2004. Unless your Honour has anything further, those are my submissions.

HIS HONOUR: Yes, thank you.

On 5 September 2003 the plaintiff applied for a protection visa under the Migration Act 1958 (Cth). On 25 November 2003 a delegate of the Minister refused to grant the plaintiff that visa. The plaintiff applied to the Refugee Review Tribunal for review of the decision of the delegate of the Minister but on 17 September 2004 the Tribunal published its reasons affirming the decision of the delegate not to grant the plaintiff a protection visa.

The plaintiff made application to the Federal Magistrates Court for orders pursuant to section 39B of the Judiciary Act 1903 (Cth) directed to the Refugee Review Tribunal in respect of the decision of the Tribunal that had been handed down on 17 September but was dated 31 August 2004. On 9 August 2005 Federal Magistrate McInnis dismissed that application.

On 8 September 2005 the plaintiff filed an application in this Court for an extension of time within which to apply for an order to show cause and for an order to show cause why relief should not be granted under section 75(v) of the Constitution and associated relief.

The Minister has applied for orders summarily terminating the proceedings. In this matter, as in others, the Minister advances a number of grounds upon which that order for summary dismissal of the proceedings should be made but in this matter, as in others, it is necessary to consider only questions that arise as a result of the sequence of events which I have earlier described.

The Rules of Court prescribe the time within which application may be made for an order to show cause why a writ of certiorari should not issue or an application may be made for an order to show cause why a writ of mandamus, or relief of a like nature, should not issue. In the case of certiorari, the time fixed by the Rules is six months after the date of the decision which it is sought to quash: see rule 25.06.1. In the case of mandamus, the time fixed is two months from the date of the refusal to hear that gives rise to the mandamus.

The Rules of Court do not provide any time limit for the institution of proceedings seeking prohibition or any time limit for the institution of proceedings seeking injunction. Nonetheless, for reasons I have indicated on earlier occasions – among others, Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicants M31 of 2004 [2004] HCATrans 318 – insofar as the applicant seeks prohibition or injunction, those applications should be refused.

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 the law. Nor should prohibition go to the Minister for so long as the decision of the Tribunal stands. Prohibition should not go to the Minister to prohibit her from acting in accordance with the Act because so long as the Tribunal’s decision remains intact it is 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 remained unaffected: see Re Ruddock; Ex parte Reyes (2000) 177 ALR 484 at 488 [23] per Justice McHugh.

Accordingly, the applicant confronts directly the difficulty presented by the application for mandamus and certiorari being commenced out of time. In this matter, as in other matters, the application made to this Court for mandamus and certiorari is made when it is because the plaintiff has sought to engage the judicial power of the Commonwealth by the application that was made in the Federal Magistrates Court.

The time limits provided by the Rules of Court not having been met, there is, in these circumstances, in my opinion, no reason proffered that is arguably sufficient to warrant granting the extension of time that would be necessary to commence the proceedings insofar as the present proceedings seek relief which is central to the achievement of any other relief of the kind which the plaintiff seeks.

In these circumstances, I am of the opinion that the proceedings should be dismissed. It follows that it should be dismissed with costs. Accordingly, the order is application dismissed with costs.

AT 10.09 AM THE MATTER WAS CONCLUDED