Plaintiff M120/2005 v MIMIA & Anor [2006] HCATrans 66 (22 February 2006)

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Plaintiff M120/2005 v MIMIA & Anor [2006] HCATrans 66 (22 February 2006)

Last Updated: 14 March 2006

[2006] HCATrans 066

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M120 of 2005

B e t w e e n -

PLAINTIFF M120/2005

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

NORMA FORD IN HER CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Defendant

Summons

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 FEBRUARY 2006, AT 9.36 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)

HER HONOUR: Is this in the same position?

MR HORAN: It looks to be that way.

HER HONOUR: I might have it called it also, Registrar, please, the fourth applicant, the plaintiff in this case.

COURT OFFICER: No appearance, your Honour.

HER HONOUR: I should stand this down so they will all be dealt with in sequence at the end of the list, Mr Horan.

AT 9.37 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 10.22 AM:

HER HONOUR: My associate informs me in relation to matter No 4 that the plaintiff has informed the Court that there will be no appearance, so I will not have the matter recalled.

MR HORAN: In this matter, the Tribunal’s decision was made on 18 July 2003. There were then proceedings commenced in the Federal Magistrates - - -

HER HONOUR: Did you say 18 July? Yes, that is right, I have that.

MR HORAN: Proceedings were then commenced in the Federal Court and remitted or transferred to the Federal Magistrates Court where they were dismissed, following which a fresh application was filed in this Court on 14 September 2004, which is approximately 14 months after the Tribunal’s decision. In the light of that delay in the previous proceedings, in my submission, the circumstances do not warrant an extension of time being granted to the applicant, and I note again that this is another case in which the Tribunal’s decision turned on strong adverse credibility findings
and that no arguable ground was raised in the proceedings before the Federal Magistrate.

HER HONOUR: Yes.

MR HORAN: So, in my submission, the application should be dismissed with costs.

HER HONOUR: Thank you very much.

On 14 September 2005 the plaintiff commenced a proceeding in the original jurisdiction of the Court seeking relief directed to a decision of the Refugee Review Tribunal made on 18 July 2003.

The plaintiff arrived in Australia on 1 June 2001 and made an application for a protection visa on 16 July of that year. The plaintiff is a Pakistani national and included in his application are his wife and two sons. A delegate of the Minister refused that application on 7 November 2001 and the plaintiff sought review of this decision by the Refugee Review Tribunal. On 18 July 2003 the Tribunal affirmed the decision of the Minister not to grant the applicant a protection visa. That decision turned on adverse credibility findings.

The plaintiff made an application for judicial review of the decision of the Tribunal to the Federal Court of Australia under section 39B of the Judiciary Act 1903 (Cth) on 25 July 2003. The matter was transferred to the Federal Magistrates Court on 12 November 2003. The application was dismissed by the Federal Magistrates Court on 9 September 2004. After the dismissal of the proceedings in the Federal Magistrates Court, the plaintiff instituted proceedings in the original jurisdiction of this Court which gives rise to the present application.

The Minister now applies for orders terminating the proceeding summarily. The plaintiff has informed the Court by letter that there will be no appearance by the plaintiff today. 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. The Minister submits that, 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.

Unless certiorari and mandamus are granted, neither prohibition nor injunction would lie, and it follows that the proceedings as a whole is 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. Thus, the critical question in the present matter is whether any extension of time should 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 decisions 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 the application was filed one year and two months after the Tribunal decision. This is eight months out of time under the Rules in the case of certiorari and 12 months out of time 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 cases.

The plaintiff in this case has already once resorted to the judicial power of the Commonwealth by making application to the Federal Magistrates Court for relief of the same kind as sought 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 the plaintiff did not make that decision the subject of any subsequent challenge by way of appeal, 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 plaintiff would seek other relief from this Court, in particular the issue of prohibition and an injunction or declaration, the grant of that relief is premised upon the quashing of the decision made by the Tribunal. Given that no case has been made out for extending the time within which application may be made for certiorari to quash the decision of the Tribunal, it would follow that the basis for the grant of any other relief cannot be established.

In all the circumstances, the proceedings which the plaintiff has 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 now.

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 10.29 AM THE MATTER WAS CONCLUDED