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High Court of Australia Transcripts |
Last Updated: 4 May 2006
IN THE HIGH COURT OF AUSTRALIA
Office of the
Registry
Melbourne No M25 of 2006
B e t w e e n -
PLAINTIFFS M25/2006
Plaintiffs
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 12.09 PM
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: Mr Horan, are you conscious of there being any appearance for the plaintiff in this matter?
MR HORAN: No, your Honour.
HIS HONOUR: Yes. We should call the plaintiff. Service is demonstrated, is it, by Ms Harvey’s affidavit of 13 April?
MR HORAN: Yes, your Honour. There is a summons dated 11 April. The other material for the defendant’s side is an affidavit of Bryan Wee sworn 11 April 2006.
COURT OFFICER: No appearance, your Honour.
HIS HONOUR: Thank you. Is this in the same case, Mr Horan, as Plaintiff M19, namely, you say I cannot extend the time and even if I could I should not?
MR HORAN: Yes, your Honour.
HIS HONOUR: There are intervening proceedings going from Justice Weinberg to the Full Court to leave application here, is that right?
MR HORAN: That was the first set of proceedings. There were then further proceedings in the Federal Magistrates Court commenced on 20 June last year which were dismissed by Federal Magistrate Riethmuller on 16 August 2005, the plaintiff, the applicant in that court, not appearing at the hearing. The only additional matter which is perhaps worth nothing is that Federal Magistrate Riethmuller made an order preventing the plaintiff from making a further application in that court for a review of the Tribunal’s decision without leave of that court.
HIS HONOUR: It is subject to a grant of leave, is it?
MR HORAN: Yes.
HIS HONOUR: It is not some absolute bar?
MR HORAN: No, your Honour, and
it does not, of course, have any direct bearing upon the application in this
Court, but that there is nothing
on the face of the proceedings which would
demonstrate circumstances for an
extension of time and, in any event, my
submission is that this Court is not in a position to grant such an
extension.
HIS HONOUR: Yes, thank you.
The plaintiff made application for a protection visa as long ago as 11 September 2001. His wife and two children were the subject of that application as well. A delegate of the Minister refused to grant the plaintiff a protection visa on 11 December 2001 and on 8 January 2002 the plaintiff applied to the Refugee Review Tribunal for review of the delegate’s decision. The Refugee Review Tribunal handed down a decision affirming the decision of the Minister’s delegate on 20 December 2002.
The plaintiff applied for a review of the decision of the Tribunal by the Federal Court of Australia but on 2 September 2003 Justice Weinberg dismissed that application. The plaintiff appealed to the Full Court of the Federal Court of Australia but on 26 February 2004 the Full Court dismissed the appeal. The plaintiff sought special leave to appeal to this Court but on 26 May 2005 that application was dismissed.
After the application for special leave to appeal to this Court was dismissed the plaintiff commenced proceedings in the Federal Magistrates Court on 20 July 2005 seeking orders under section 39B of the Judiciary Act 1903 (Cth). Federal Magistrate Riethmuller dismissed that application on 16 August 2005.
On 10 March this year the plaintiffs made application in this Court for an order to show cause. The Minister now applies for orders summarily terminating those proceedings, contending that they are doomed to fail. The Minister contends that the proceedings are commenced out of time. The Minister submits that the time for commencing the proceedings is fixed by the application of the provisions of the Migration Act 1958 (Cth) as amended by the Migration Litigation Reform Act 2005 and that the consequence of those provisions is that this Court has no power to extend the time within which proceedings of the kind instituted by the plaintiff may be commenced. If that were not so, the Minister would contend that any discretion remaining in the Court to extend the time within which application may be made for relief by way of certiorari or mandamus should be refused, having regard to the course of events which I have described.
In my opinion, the proceedings which the plaintiff has instituted must fail. It is unnecessary to consider whether they must fail because they are commenced beyond a time which is fixed by operation of the Act or whether they must fail because times fixed by the Rules are times that would not in the exercise of a discretion be extended. On either view of the matter, the proceedings are ones which were commenced out of time and if there were power to extend the time for commencement, that power should not be exercised in this case.
The orders are application dismissed. It must be dismissed with costs.
AT 12.17 PM THE MATTER WAS
CONCLUDED
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URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/2006/213.html