Plaintiff M111/2006 v MIMA & Anor [2007] HCATrans 18 (2 February 2007)

Last Updated: 22 March 2007

[2007] HCATrans 018

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M111 of 2006

B e t w e e n -

PLAINTIFF M111/2006

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 2 FEBRUARY 2007, AT 9.38 AM

Copyright in the High Court of Australia

MR W.S. MOSLEY: If your Honour pleases, I appear for the first defendant. (instructed by Clayton Utz)

HER HONOUR: I perhaps should have the matter called.

MR MOSLEY: As your Honour pleases. Yes, I do not know whether the applicant appears.

COURT OFFICER: No appearance, your Honour.

HER HONOUR: Thank you.

MR MOSLEY: Your Honour in that matter would have the application for an order to show cause of the applicant together with the affidavit of the plaintiff both dated 24 August. Then, as far as the first defendant is concerned, the defendant’s summons of 29 January 2007 together with various affidavits, the originals of which I should now file and I would seek leave to file with your Honour.

HER HONOUR: Yes, thank you.

MR MOSLEY: The position with that matter, your Honour, is the plaintiff is a national of Malaysia who arrived in Australia on 5 May 2004, made an application for a protection visa in May of that year. The delegate refused that application. There was then an application made for review to the Refugee Review Tribunal. That in turn was dismissed. The matter then proceeded before Federal Magistrate O’Dwyer who gave his reasons for judgment on 16 March of last year. That affirmed the decision of the Refugee Review Tribunal. I am sorry, that affirmed the decision of Federal Magistrate O’Dwyer – I am sorry, on appeal. Justice Rares then dismissed the appeal from the judgment of Federal Magistrate O’Dwyer.

The documents relevant to that are exhibited to the affidavit of Udara Jayasinghe. There are also affidavits, your Honour, that is, a principal affidavit, and there is a further affidavit of Christopher Wilson which I have handed to your Honour, a further affidavit of David Brewster and, finally, a second affidavit of Udara Jayasinghe. Now, the position with that matter, your Honour, is under the Rules. Rule 28.02.2 provides that:

Unless the Court or a Justice, by order, allows a shorter time, a summons shall be served at least 3 days before the day on which it is to be heard.

Now, your Honour will see from the affidavits – and I perhaps should take you to first the affidavit of Christopher Wilson sworn 1 February 2007 – the history of that. Does your Honour wish me to read that?

HER HONOUR: No, but you can draw my attention to anything specific.

MR MOSLEY: It is one day short in terms of the time, your Honour.

HER HONOUR: Yes.

MR MOSLEY: But your Honour will then see that it was sent to him by email on that day. Then the further affidavit of Udara Jayasinghe deposes to the fact that she spoke to the applicant. That is the affidavit sworn 1 February. Your Honour will see, if your Honour has that short affidavit - - -

HER HONOUR: He said that he was aware of the hearing today, yes.

MR MOSLEY: Then there is an additional affidavit of David Brewster regarding posting. So we would seek an order from your Honour that a shorter time be allowed for the service of the summons in light of all the circumstances under Rule 28.02.2. Does your Honour wish me to address you regarding the background to the matter?

HER HONOUR: Briefly you might.

MR MOSLEY: The reasons for judgment of Federal Magistrate O’Dwyer are exhibited to the affidavit of Udara Jayasinghe. That was then appealed, as I put to your Honour, and Justice Rares in a further judgment, which is also exhibited to that affidavit, UAJ6, again dealt with the matters that were put by the appellant. If one looks at, in particular, paragraphs 16, 17 and 19 where his Honour set out the basis upon which the appellant appealed to that court and he proceeded to dismiss that appeal on 7 August.

The application for an order to show cause, as your Honour will have seen, is unparticularised and the plaintiff’s affidavit does not take the matter a great deal further. In those circumstances, your Honour, the defendant’s summons relies upon an abuse of process and res judicata issue estoppel matters.

HER HONOUR: Yes, I see that.

MR MOSLEY: In light of the plaintiff’s non-attendance today, we would also seek the matter be struck out on that basis.

HER HONOUR: Yes, very well.

MR MOSLEY: And we would seek an order for costs, your Honour.

HER HONOUR: On 24 August 2006 the plaintiff, a citizen of Malaysia, commenced a proceeding in the original jurisdiction of this Court seeking relief directed to a decision of the Refugee Review Tribunal made on 31 March 2005. The plaintiff arrived in Australia on 5 May 2004 and made an application for a protection Class XA visa on 28 May 2004. On 30 June 2004 a delegate of the first defendant refused this application.

The plaintiff applied to the Refugee Review Tribunal for a review of the delegate’s decision. On 31 March 2005 the Tribunal affirmed the decision of the Minister not to grant the plaintiff a protection visa. On 10 June 2005 the plaintiff made an application seeking judicial review of the Tribunal decision to the Federal Magistrates Court under section 39B of the Judiciary Act 1903 (Cth). On 22 February 2006 a Federal Magistrate dismissed the application for review.

The plaintiff filed a notice of appeal on 27 March 2006. The appeal was heard and dismissed by Justice Rares on 7 August 2006. On 24 August the plaintiff instituted proceedings in the original jurisdiction of this Court seeking a declaration of certiorari, mandamus, prohibition and injunction.

The Minister has filed a summons dated 29 January 2007 seeking an order that the application be refused on a number of grounds, including the ground that the plaintiff cannot establish an arguable case and that the application has been made outside the time specified by section 486A of the Migration Act 1958 (Cth) without an application for an extension and, alternatively, that the doctrines of res judicata or issue estoppel or Anshun estoppel preclude the plaintiff from raising any grounds of judicial review.

This summons was filed one day out of time and an application has been made before me today for time to be abridged, as necessary, under the provisions of Rule 28.02.2. I make that order to abridge times on having been provided with evidence which satisfies me that the plaintiff is aware of the return date of the summons this day despite his non-appearance.

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 25.06.1 and 25.07.2 and those contained in the Migration Act 1958 (Cth). The availability of prohibition and injunction as sought by the plaintiff 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 at 448 [23]. Thus the critical question in the present matter is whether any extension of time should be granted.

In the present case the application was made approximately 18 months after the decision of the Tribunal was handed down. The plaintiff has already once resorted to the judicial power of the Commonwealth by making application to the Federal Magistrates Court and then an appeal by way of rehearing before a judge of the Federal Court for relief of the same kind sought from this Court. Those proceedings were prosecuted to a conclusion.

No ground has been shown for granting an extension of time within which the present application might be brought insofar as it seeks certiorari or mandamus. Insofar as the plaintiff would seek other relief from this Court, in particular, the issue of prohibition or a declaration, 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 would follow that the basis for the grant of any other relief cannot be established. In addition to that, the plaintiff has not appeared today in order to make any additional submissions in relation to the application for an extension of time.

Accordingly, I refuse the application for an extension of time and further order that the proceedings be dismissed with costs.

AT 9.49 AM THE MATTER WAS CONCLUDED