Plaintiffs M35/2006 v MIMIA & Anor [2006] HCATrans 449 (24 August 2006)

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Plaintiffs M35/2006 v MIMIA & Anor [2006] HCATrans 449 (24 August 2006)

Last Updated: 14 September 2006

[2006] HCATrans 449

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M35 of 2006

B e t w e e n -

PLAINTIFFS M35/2006

Plaintiffs

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 AUGUST 2006, AT 10.15 AM

Copyright in the High Court of Australia

PLAINTIFF M35/2006 appeared in person.

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

HIS HONOUR: I understand the plaintiff in this matter sought the assistance of a Romanian interpreter. Do you know whether the plaintiff is present in court?

MR HORAN: I do not know, but unlike the previous matter, I do not believe the plaintiff has left Australia.

HIS HONOUR: No.

MR HORAN: Perhaps if he could be called.

HIS HONOUR: Again, the fact that an interpreter was sought suggests that the plaintiff may be intending to come. Perhaps if we could call the plaintiff. Yes, I think the plaintiff appears, Mr Horan. If we could swear or affirm the interpreter, that would be desirable.

R. WILKIE, sworn as interpreter:

HIS HONOUR: Yes, thank you very much. Madam Interpreter, if you would be good enough to give as best you are able a running summary of what is being said as we go to the plaintiffs, that would be of great assistance to us.

THE INTERPRETER: Yes, your Honour.

HIS HONOUR: Now, Mr Horan, what is the position?

MR HORAN: The proceedings seek review of a decision of the Refugee Review Tribunal which was handed down on 13 January 2006. The background to the matter is that the plaintiffs arrived in Australia on 29 April 2004 and applied for a protection visa on 3 June 2005. After the Tribunal ultimately affirmed the refusal of that application, as I mentioned, on 13 January 2006 the plaintiff applied to the Federal Magistrates Court for review of that decision and that was by an application dated 7 February 2006. That application was struck out by a registrar of the Federal Magistrates Court on 1 March 2006 as a result of the plaintiffs’ failure to attend a directions hearing, acting pursuant to rule 10.01 of the Federal Magistrates Court Rules.

The order was that the application be struck out with a right of reinstatement, such application to be made within 21 days. The plaintiffs then applied for reinstatement on 20 March 2006 and that application for reinstatement was then discontinued on 31 March 2006. In the interim, on 27 March 2006 the plaintiffs commenced this proceeding by application for an order to show cause so that, having commenced this proceeding, the application for reinstatement of the Federal Magistrates Court proceeding was then discontinued.

In relation to the application of section 486A, the application, if I have calculated correctly, is outside the 28-day period but within the 84-day period from actual notification of the decision and therefore under that section the plaintiff would require an extension of time under section 486A(2). In my submission, that extension should be refused on the basis that the plaintiffs have commenced previous proceedings in the Federal Magistrates Court which, although they have not been prosecuted to their conclusion on the merits - - -

HIS HONOUR: They have not even been fixed for hearing.

MR HORAN: No, but it remains open to the plaintiffs to return to the Federal Magistrates Court and to, in effect, seek to reinstate their application for reinstatement of the proceedings rather than - - -

HIS HONOUR: We are then dancing on the end of a pin, are we not, Mr Horan, in this sense. If the proceeding here is alive, what am I going to do with it? Remit it, am I not?

MR HORAN: I would submit, dismiss this proceeding, leaving the plaintiffs to pursue the proceeding in the Federal Magistrates Court.

HIS HONOUR: Why do I do that rather than - - -

MR HORAN: The consequence of remitting the proceeding, your Honour, is to allow the plaintiffs to sidestep the procedure for applying for reinstatement of the proceeding which was contemplated by the registrar’s orders and to effectively have a proceeding reinstated in the Federal Magistrates Court.

HIS HONOUR: Is the reinstatement going to be opposed?

MR HORAN: I do not have instructions in relation to that. The applicant would - - -

HIS HONOUR: I think I would want to know what the Minister’s attitude would be and on what basis the reinstatement would be opposed.

MR HORAN: In order to have the application reinstated the plaintiff would be required to explain the failure to appear and show an arguable case and, at the very least, if the plaintiff cannot demonstrate to this Court that a case for reinstatement of the Federal Magistrates Court proceedings, then it, in my submission, is not appropriate to remit these proceedings back to the Federal Magistrates Court. At the very least, the plaintiff should be required to satisfy the test that he would have been required to satisfy to have the proceeding reinstated.

HIS HONOUR: Why am I left with an impression – a grossly unfair question to ask counsel – why am I left with an impression that we are counting angels on the end of a pin here, Mr Horan? Your proper answer to that is “That is a matter for your Honour, not for me”.

MR HORAN: Yes. My primary submission is that this application should be dismissed and the plaintiff should be left to go back to the Federal Magistrates Court to pursue whatever avenues are open there. If the Court is not minded to dismiss the application, then, of course, it remains open to remit the proceeding to the Federal Magistrates Court. I may need to seek instructions about whether I would apply for costs.

HIS HONOUR: What troubles me, I think, is this, so that you can grapple with it, Mr Horan. My impression – and it may be that this is where you need to correct me – is you have applicants who have sought to engage judicial power. They have missed a directions hearing. They have evidenced a continued intention to engage judicial power and they have not yet had an opportunity of being heard about why. Now, that just leaves me uneasy and I do not want to end up with a position where they are left between two stools with each court saying, “Well, he did not get our procedures right, therefore”.

MR HORAN: Yes, your Honour.

HIS HONOUR: That is the nub of the problem that I have and what I need, really, is what answer would the Minister make to that?

MR HORAN: Well, as I say, my primary submission is that the plaintiffs could return to seek, from the Federal Magistrates Court, to reinstate those proceedings. Ultimately, there may be little difference between that option and, if your Honour is satisfied that it is appropriate for the plaintiffs to have their day in court, then that could be achieved.

HIS HONOUR: That is the bottom line, Mr Horan. I am just anxious that they should have an opportunity, once, to have a day in court where they have apparently moved, I will not say with great speed, but at least in circumstances where they seem to be pressing the point.

MR HORAN: Yes, your Honour.

HIS HONOUR: What disadvantage does the Minister suffer if I simply remit this proceeding to the Federal Magistrates Court?

MR HORAN: I do not rely on any specific prejudice or disadvantage other than, as mentioned before, that the plaintiff effectively avoids the need then to demonstrate a case for reinstatement.

HIS HONOUR: Yes, I understand that.

MR HORAN: As I said, I do not have instructions as to whether the Minister would take a position of opposing that application in any event. It is unlikely that the Minister would consent to that application.

HIS HONOUR: I understand that, but if there were things that you felt ought to be advanced on that aspect and you needed time, tell me and you can have it.

MR HORAN: No, your Honour.

HIS HONOUR: My inclination, as you gather, Mr Horan, is to say I will simply remit this proceeding to the Federal Magistrates Court and the plaintiffs can have their day in court or have an opportunity to have their day in court.

MR HORAN: If the Court pleases. I would apply for the costs of today, that the plaintiff should - - -

HIS HONOUR: Yes, if I were to make the costs of today costs in the cause, if ultimately the Minister succeeds, the Minister will have them. If ultimately the Minister loses, the Minister will not have them, but will pay them. Would you wish to be heard against that?

MR HORAN: Well, only that in what I would submit is the hypothetical case of the Minister being unsuccessful, that the Minister should not be required to pay the costs of today.

HIS HONOUR: Yes, so make them, what, first respondent’s costs in the cause?

MR HORAN: Yes, your Honour, if the Court pleases.

HIS HONOUR: Madam Interpreter, would you be good enough to tell the plaintiffs that what I propose to do is to send this case for hearing by the Federal Magistrates Court. The order I propose to make about costs is that if they lose in the Federal Magistrates Court, they will pay today’s costs. If they win in the Federal Magistrates Court, they will have to pay their own costs of today, or no one will get any costs for today.

Very well. There will be an order in the common form remitting the proceeding to the Federal Magistrates Court. The costs of today will be the Minister’s costs in the cause. Yes, thank you. Thank you, Madam Interpreter, for your assistance.

AT 10.30 AM THE MATTER WAS CONCLUDED