Plaintiffs M78/2005 v MIMIA & Anor [2006] HCATrans 64 (22 February 2006)

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Plaintiffs M78/2005 v MIMIA & Anor [2006] HCATrans 64 (22 February 2006)

Last Updated: 14 March 2006

[2006] HCATrans 064

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M78 of 2005

B e t w e e n -

PLAINTIFFS M78/2005

Plaintiffs

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

G. BREWER (REFUGEE REVIEW TRIBUNAL)

Second Defendant

Summons

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 FEBRUARY 2006, AT 9.33 AM

Copyright in the High Court of Australia

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

HER HONOUR: Yes, do you have any information about whether there is likely to be an appearance for the applicant?

MR HORAN: I am instructed that he has been served. There is a summons of the respondent which has been filed and, of course, this is also the return date of the plaintiff’s summons.

HER HONOUR: Perhaps I had better have the matter called, Mr Horan, outside the Court.

MR HORAN: Yes.

HER HONOUR: What I am minded to do perhaps, Mr Horan, if there is no answer to the call, is stand the matter down. I know that you are otherwise appearing in the list.

MR HORAN: Yes.

HER HONOUR: Indeed, stand down any matters where there are no appearances for the applicants and - - -

MR HORAN: Deal with them at the end.

HER HONOUR: - - - deal with them last, yes. I will stand that matter down, Mr Horan.

AT 9.35 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 10.11 AM:

HER HONOUR: Yes, Mr Horan.

MR HORAN: Your Honour, in addition to the summons and affidavit of Brian Wee sworn 14 February 2006, does your Honour also have an
affidavit of Melissa Hardy sworn 15 February 2006, which is an affidavit of service.

HER HONOUR: Yes, I have that. I have seen that.

MR HORAN: I would rely on that and also note that under the new Rules this is the plaintiff’s application, so it is also the return of the plaintiff’s summons for relief in this Court.

HER HONOUR: Yes, I think you mentioned that earlier.

MR HORAN: In this case there has been a delay of just over two years from the date of the Tribunal’s decision. There were previous proceedings dismissed by the Federal Magistrates Court and then an appeal to the Federal Court was dismissed, although I understand in default of appearance.

HER HONOUR: Yes.

MR HORAN: The Tribunal’s decision was largely based on strong adverse credibility findings against the applicant and in the circumstances, given the extent of the delay in commencing these proceedings and the lack of any prospects of success, I would submit that the application for an extension of time be refused and the application be dismissed with costs.

HER HONOUR: Yes, thank you.

On 1 July 2005 the plaintiffs, a Sri Lankan husband and wife, filed an application for an order to show cause seeking certiorari directed to the Minister for Immigration and Multicultural and Indigenous Affairs and to the member who constituted the Refugee Review Tribunal to quash the decision of the Tribunal made on 19 June 2003 affirming the decision of a delegate of the Minister not to grant the plaintiffs a protection visa. The application in this Court further seeks prohibition to prevent the Minister from acting on the Tribunal’s decision and mandamus to compel the Tribunal to perform its function of reviewing the decision of the delegate.

The plaintiffs arrived in Australia on 16 September 2001 and made an application for a protection visa on 4 October of that year. A delegate of the Minister refused the application on 29 January 2002 and the plaintiffs sought review of this decision by the Refugee Review Tribunal. On 11 July 2003 the Tribunal affirmed the decision of the Minister not to grant the plaintiffs a protection visa. After the Tribunal made its decision on 14 August 2003, the plaintiffs made an application for judicial review to the Federal Court under section 39B of the Judiciary Act 1903 (Cth). On 11 September 2003 Justice Goldberg ordered that the application for review be transferred to the Federal Magistrates Court. That application was dismissed by Federal Magistrate Hartnett on 15 October 2004. The plaintiffs appealed to the Federal Court of Australia on 31 October 2004 and a single judge of that court (Justice North) exercising the appellate jurisdiction, dismissed the appeal on 6 June 2005. Following that decision, the plaintiffs commenced proceedings in this Court on 1 July 2005.

The Minister now applies for orders terminating the proceedings summarily. There has been no appearance on behalf of the plaintiff. The Minister submits that the application to this Court is made well beyond the times fixed by the Rules of Court for making application for certiorari and mandamus: see rule 25.06.01 and 25.07.2. Having regard to the course of events which I have described, no case is made for extending time within which certiorari or mandamus should be granted, and that, because other relief which the plaintiffs would seek in the proceedings is necessarily premised upon the grant of certiorari to quash the decision of the Tribunal, the proceedings which the plaintiffs have instituted are bound to fail.

The availability of prohibition and injunction depends upon whether the impugned decision of the Tribunal is liable to be quashed by granting certiorari. For example, see Re Ruddock; Ex Parte Reyes (2000) 177 ALR 484 per Justice McHugh. Without certiorari to quash the decision of the Tribunal, prohibition would not go to the Minister to prohibit her from carrying out procedures described by the Act because it would in the circumstances described be the Act which prescribes the consequences that would follow. Thus the critical question in the present matter is whether any extension of time should be granted.

An extension of time should not be granted. As Justice McHugh remarked in Re Commonwealth; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491 at 495 paragraph [15]:

‘[Constitutional or prerogative writs] are directed at the acts or decision of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.’

His Honour also said in that decision at 496 paragraph [16]:

‘The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.’

In the present case, relief is sought in respect of a decision made by the Tribunal over two years ago. This far exceeds the six months following the date of judgment that is allowed under the Rules in the case of certiorari and the two months allowed in the case of mandamus. It may be that the expiration of so long a time is of itself sufficient reason to refuse extension of time save in the more exceptional circumstances.

In this case, where the plaintiffs have already once resorted to the judicial power of the Commonwealth by making application to the Federal Magistrates Court for relief of the very kind they would seek from this Court by the proceeding instituted here, and given further that the proceedings in the Federal Magistrates Court have been prosecuted to a conclusion and to a subsequent unsuccessful appeal to the Federal Court of Australia, no ground is shown for granting an extension of time within which the present application, insofar as it seeks certiorari or mandamus, might be brought.

Insofar as the plaintiffs would seek other relief from this Court, in particular the issue of prohibition, the grant of that relief is premised upon the quashing of the decision made by the Tribunal. Given that no case is made out for extending the time within which application may be made for certiorari to quash the decision of the Tribunal, it follows that the basis for the grant of prohibition cannot be established.

In all the circumstances, the proceedings which the plaintiffs have instituted are proceedings which must fail. That being so, rather than remit them to another court for hearing and determination, it is preferable that they be brought to an end in this Court. Accordingly, I will order that the proceedings stand dismissed. It is inevitable that they must be dismissed with costs. Those orders are therefore made.

AT 10.19 AM THE MATTER WAS CONCLUDED