Plaintiff M119/2005 v MIMIA & Anor [2006] HCATrans 206 (27 April 2006)

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Plaintiff M119/2005 v MIMIA & Anor [2006] HCATrans 206 (27 April 2006)

Last Updated: 5 May 2006

[2006] HCATrans 206

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M119 of 2005

B e t w e e n -

PLAINTIFF M119/2005

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 10.09 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: Again, your Honour, perhaps if the applicant is called.

HIS HONOUR: Yes.

COURT OFFICER: No appearance, your Honour.

HIS HONOUR: Yes, thank you. Mr Horan, where are we up to in this matter? This matter has been before the Court on 22 February, I believe, and it was stood over then.

MR HORAN: It has. I think because on that date there had not yet been service of the Minister’s summons. I now have – I am not sure whether it has been filed, but I rely on an affidavit of service of Melissa Ann Harvey sworn on 13 April 2006.

HIS HONOUR: Yes, that is filed.

MR HORAN: The Minister’s summons is dated 11 April 2006, again, seeking summary dismissal on a variety of bases. The plaintiff requires an enlargement of time under the High Court Rules in order to seek certiorari and mandamus. The relevant dates – the plaintiff is a citizen of India.

HIS HONOUR: Are the dates set out in the affidavit of Mr Wee sworn 10 April?

MR HORAN: There have been previous proceedings by way of judicial review of the Tribunal’s decision which was handed down on 2 July 2003. Those proceedings were commenced in the Federal Court and transferred to the Federal Magistrates Court where they were dismissed by Federal Magistrate Phipps on 3 March 2005 and the present application was filed on 13 September 2005. In the light of the previous proceeding seeking similar relief in relation to the Tribunal’s decision, in the absence of any particulars of grounds of review contained in the application for an order to show cause, in my submission, there is no special circumstances calling for the exercise of the discretion to enlarge time and the application should be dismissed with costs.

HIS HONOUR: Yes. Thank you, Mr Horan.

On 13 August 2002 the plaintiff made application for a protection visa pursuant to the Migration Act 1958 (Cth). On 10 September 2002 a delegate of the Minister refused to grant the plaintiff a protection visa. The plaintiff applied to the Refugee Review Tribunal for review of that refusal. On 2 July 2003 the Tribunal affirmed the delegate’s decision not to grant the plaintiff the visa which he sought.

On 21 August 2003 the plaintiff commenced proceedings in the Federal Court of Australia seeking review of the Tribunal’s decision and relief pursuant to section 39B of the Judiciary Act 1903 (Cth). The proceedings that had been commenced in the Federal Court of Australia were transferred to the Federal Magistrates Court of Australia and on 3 March 2005 Federal Magistrate Phipps made orders dismissing the plaintiff’s application.

On 13 September 2005, some six months after the Federal Magistrates Court decision and over two years after the Tribunal’s decision, the plaintiff filed an application in this Court for an order to show cause why relief should not be granted under section 75(v) of the Constitution and associated relief. The Minister now applies for orders summarily terminating that proceeding. A number of grounds are advanced in support of the Minister’s application but it is necessary to notice only the grounds concerning the time within which the proceedings were commenced.

As I have noted on a number of other occasions, the Rules of Court prescribe time limits within which applications may be made for orders to show cause why certiorari or mandamus should not issue. The time limit fixed for certiorari by rule 25.06.1 of the High Court Rules 2004 is six months from the date of the order which it is sought to quash. The time fixed in respect of mandamus is two months from the date of a refusal to hear proceeding. Those time limits have long since expired in the present matter.

In this matter, as in other like proceedings, the relief which the plaintiff seeks is not confined to relief by way of certiorari or mandamus and the plaintiff would seek prohibition or injunction. For reasons I have indicated on earlier occasions, including, for example, in Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicants M31 of 2004 [2004] HCATrans 318, insofar as the plaintiff seeks prohibition or injunction, that application is one which is bound to fail.

Prohibition would 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 plaintiff would seek 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. Prohibition would not go to the Minister for so long as the decision of the Tribunal stands. It would not go to the Minister to prohibit her from acting in accordance with the Act for so long as the Tribunal decision remains intact for it is the Act which would prescribe the consequences that follow in respect of an unlawful non-citizen. It follows that prohibition would be inapposite relief for so long as the Tribunal’s decision affirming refusal of the protection visa remained unaffected.

It is for these reasons that the plaintiff’s proceeding in this Court must confront directly the difficultly presented by the application for mandamus and certiorari being commenced out of time. Where, as in this matter and in others, the intervening time that has elapsed has been occupied by the plaintiff seeking relief of substantially the same kind as now is sought but those attempts being unsuccessful, there is no arguable reason advanced why an extension of time should be granted.

That being so, the plaintiff’s application insofar as it seeks certiorari, or for that matter mandamus, is bound to fail and for the reasons given earlier the consequential relief that would depend upon the grant of certiorari would not be available. It follows for these reasons that the application must be dismissed and must be dismissed with costs. The order is application dismissed with costs.

AT 10.20 AM THE MATTER WAS CONCLUDED