Plaintiff M27/2006 v MIMA & Anor [2006] HCATrans 446 (24 August 2006)

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Plaintiff M27/2006 v MIMA & Anor [2006] HCATrans 446 (24 August 2006)

Last Updated: 14 September 2006

[2006] HCATrans 446

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M27 of 2006

B e t w e e n -

PLAINTIFF M27 OF 2006

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 AUGUST 2006, AT 9.37 AM

Copyright in the High Court of Australia

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

HIS HONOUR: Yes, Mr Horan.

MR HORAN: I understand that the plaintiff is not in attendance at present. The plaintiff has been served with a summons of the first defendant dated 19 July 2006.

HIS HONOUR: Should I have the plaintiff called, I think, Mr Horan?

MR HORAN: Yes, your Honour.

HIS HONOUR: Perhaps if you would be good enough to call the plaintiff. While that is being done, can you point me to the records of documents, Mr Horan.

MR HORAN: Yes.

HIS HONOUR: There is the Minister’s summons of 19 July, is there?

MR HORAN: Yes, and there should be an affidavit of Michael John Brereton sworn 17 July.

HIS HONOUR: Yes, I have that. There is an affidavit of service, is there, of Ms Harvey - - -

MR HORAN: Melissa Harvey sworn 21st - - -

HIS HONOUR: - - - of 21 July, is that right?

MR HORAN: Yes, your Honour. The application is for review of a Tribunal decision dated 30 November 2004.

HIS HONOUR: Yes, just one moment, would you?

COURT OFFICER: No appearance, your Honour.

HIS HONOUR: Yes, thank you. Yes, Mr Horan, so the critical dates are Tribunal decision?

MR HORAN: Of 30 November 2004, and the application was filed in this Court on 15 March 2006. As your Honour will be aware, section 486A of the Migration Act now requires applications to be filed within 28 days of actual notification with the power of the Court to extend up to 84 days.

HIS HONOUR: Yes.

MR HORAN: This application was filed more than 84 days after actual notification, which, under the transitional provisions to those amendments, is deemed to have occurred on 1 December 2005, although that was itself some time after the Tribunal’s decision. In such circumstances, under section 486A, there is no power to further extend time and the application is therefore beyond the jurisdiction of this Court.

In any event, your Honour, I would also draw the Court’s attention to the following matters. The first is that the application does not disclose previous judicial review proceedings which were commenced in the Federal Magistrates Court and section 486D(3) of the Migration Act now requires applicants, when commencing judicial review proceedings in either the Federal Magistrates Court, the Federal Court or in this Court, to disclose previous applications. The previous proceedings were - - -

HIS HONOUR: And what is the consequence, if any, which the Act would attach to a failure to disclose?

MR HORAN: It is not expressly stated in the section itself. However, in my submission, the proceeding would arguably be incompetent if the proceedings were not disclosed. The section simply states that:

A person must not commence a proceeding in the High Court . . . unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by that person in that or any other court in relation to that decision.

Now, there would be question as to what effect that would have on the jurisdiction of this Court, but that is simply a matter that in this case has not been complied with.

HIS HONOUR: Now, in this immediate application would it be open to me to dismiss the application for want of prosecution?

MR HORAN: Yes, your Honour.

HIS HONOUR: And if I did that it would not be necessary, would it, to come to these other issues that you have touched upon?

MR HORAN: No, your Honour.

HIS HONOUR: My present inclination is to deal with this particular application on the basis just mentioned, namely, to dismiss it for want of
prosecution. It may be convenient if I say this to you because these issues may emerge rather more starkly in other applications with which we have to deal later this morning.

When we come to those applications where questions about the operation of the amendments made by the Migration Litigation Reform Act 2005 arise, in particular questions emerge about the operation of section 486A of the Act as amended and inserted by the Reform Act of 2005 with the effect of imposing time limits, I will be assisted by knowing whether any other member of the Court has yet passed upon these provisions. I will be assisted by knowing whether there has been any consideration given, particularly to the intersection or possible intersection between those provisions, namely, 486A, and the provisions of section 5E inserted by the Reform Act of 2005 to include a definition of “purported privative clause decision”.

In particular, I will be assisted by knowing whether, as I say, these are issues that have been considered. I will also be assisted by knowing what the Minister would say to a proposal that one or more of the matters in which these issues arise where the applicant is unrepresented should be referred to perhaps the Victorian Bar pro bono scheme for appointment of counsel to appear on behalf of the person otherwise unrepresented to provide whatever assistance can be given in understanding the intersection between these provisions and the consequences, if any, that may then be observed about the proper construction of those provisions.

What I have in mind particularly is provoked by ideas of the kind exemplified in Plaintiff S157/2002 v The Commonwealth of Australia 211 CLR 476, particularly at pages 504 and following, paragraphs 71 and following, concerning how you set about construing an Act conformably with section 75 of the Constitution where there is a privative clause. Those are issues that we do not I think need to encounter in this particular matter, but they are issues that - - -

MR HORAN: No, your Honour, I think they will - - -

HIS HONOUR: They may perhaps emerge later in the morning, Mr Horan, and better you know about them now rather than have them sprung upon you a little later in the day.

MR HORAN: Thank you, your Honour.

HIS HONOUR: In the present matter, I simply make an order that the application is dismissed for want of prosecution. What other order do you seek?

MR HORAN: I think perhaps just an order for costs, your Honour.

HIS HONOUR: The application is dismissed for want of prosecution. The applicant must pay the Minister’s costs.

AT 9.48 AM THE MATTER WAS CONCLUDED