Plaintiff S269/2008 v MIAC & Anor [2008] HCATrans 283 (6 August 2008)

Last Updated: 15 August 2008

[2008] HCATrans 283

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S269 of 2008

B e t w e e n -

PLAINTIFF S269/2008

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

JUNE LEE DIRECTOR NSW REFUGEE AND HUMANITARIAN BRANCH

Second Defendant

Application for order to show cause

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 6 AUGUST 2008, AT 2.25 PM

Copyright in the High Court of Australia

PLAINTIFF S269/2008 appeared in person.

MR S.B. LLOYD: May it please the Court, I appear with MS C.C. SPRUCE, for the Minister. (instructed by DLA Phillips Fox)

UDAGE WICKRAMASENA interpreter:

PLAINTIFF S269/2008 (through interpreter): The applicant filed a show cause application against the Minister, the first defendant, that was dated 12 June 2008. He claimed that the first defendant Minister, in failing to make a decision in substitution for that of the Refugee Review Tribunal, a decision which is more favourable to the plaintiff, the first defendant Minister acted upon an incorrect basis of fact and erred in law.

HIS HONOUR: There are affidavits of the applicant on the file, one filed on 7 July 2008 and one filed on 17 July 2008, and there are earlier affidavits filed on 12 June 2008 and 7 July 2008. I have read all those affidavits. Is there any objection to any part of them, Mr Lloyd?

MR LLOYD: Only as to relevance, your Honour.

HIS HONOUR: Yes, well, I have read those affidavits, and I have read the plaintiff’s written submissions. I am not sure who prepared those written submissions, but they were obviously prepared by somebody who speaks English a great deal better than the plaintiff speaks English. So go ahead and tell me anything that you want to say in support of your application.

PLAINTIFF S269/2008 (through interpreter): After the submission of the first - he had made an application for refugee status and before he submits his supporting document the decision has been made. It is in affidavit paragraph 4. It is – I filed an affidavit on.....2008 in accordance with rule.....of the High Court Rules 2004 setting out in detail about the time and manner in which service of the copy of the said application for an order to show cause and documents attached to that said application on the defendants above named together with a copy of proof of service.

HIS HONOUR: Yes, go ahead.

PLAINTIFF S269/2008 (through interpreter): Before filing supporting document the defendant.....an action filed a case before 14 days for non-appearance, and.....affidavit on that ground to - - -

HIS HONOUR: Go ahead, anything else you want to say?

PLAINTIFF S269/2008: No, that is all.

HIS HONOUR: Mr Lloyd, there are two applications we are dealing with, are there not: the application for an order to show cause filed on 12 June 2008 and an application for an interlocutory injunction?

MR LLOYD: I understand that to be so, yes, your Honour.

HIS HONOUR: Where do I most conveniently find the letter informing the plaintiff of the outcome of the section 417 consideration?

MR LLOYD: I think it was exhibit A. It was in our collection, so it is in the affidavit of 12 June exhibited to that affidavit.

HISHONOUR: Exhibit A to the affidavit of 12 June?

MR LLOYD: Yes.

HIS HONOUR: The relevant part is paragraph 3 in which the letter informs the plaintiff that the Minister, Senator Evans, declined to consider exercising his power.

MR LLOYD: That is so.

HIS HONOUR: That ties in with section 417(7). I understand the substance of your argument to be that because, by virtue of section 417(7), the Minister has no duty to consider whether to exercise the power, there is nothing in the information contained in this letter to which the relief sought by the plaintiff can usefully attach.

MR LLOYD: That is precisely so, yes, your Honour. It flows from what this Court said in S134.

HIS HONOUR: Mr Lloyd, has there been a previous application for special leave to appeal in relation to this matter or a related matter?

MR LLOYD: I believe there has been, yes, your Honour.

HIS HONOUR: Just tell me what that is about.

MR LLOYD: I do not know that I have a copy of the special leave application. There was a matter before exhibit T, which is an exhibit to the affidavit filed on 1 August 2008. That is the Federal Magistrate’s decision.

HIS HONOUR: Federal Magistrate Barnes.

MR LLOYD: Yes. I do not think there is in evidence, nor I think do I have a copy of the Federal Court’s decision.

HIS HONOUR: Was there an application for special leave to appeal to this Court from a decision of the Federal Court? The reason I am asking the question is that noted on the file I have is a reference to an unsuccessful special leave application file in matter No S97/2007.

MR LLOYD: I did believe there was, your Honour, but I do not know that I have a copy of anything that proves it.

HIS HONOUR: According to the information on this file on 15 November 2007 Justices Gummow and Kiefel dismissed an application for special leave to appeal against the orders of Justice Buchanan.

MR LLOYD: That is what I have as well.

HIS HONOUR: That relates to the same subject matter as these proceedings, does it?

MR LLOYD: Yes and no.

HIS HONOUR: Let me put it this way. It was as a result of the failure of that special leave application that an attempt was made to get the Minister to consider his - - -

MR LLOYD: It happened after that. That happened in November 2007 and the letter to the Minister was January 2008.

HIS HONOUR: So the sequence of events appears to be that the special leave application seeking special leave to appeal from the decision of Justice Buchanan, having been dismissed on 15 November 2007, the plaintiff then invoked section 417 of the Act, unsuccessfully.

MR LLOYD: That is right.

HIS HONOUR: Thank you. Is there anything you wish to add?

PLAINTIFF S269/2008 (through interpreter): No.

HIS HONOUR: Thank you.

In matter No S97 of 2007 the present plaintiff sought leave to appeal against the orders of a single judge of the Federal Court of Australia, Justice Buchanan, exercising the appellate jurisdiction of that Court. By those orders, Justice Buchanan refused an extension of time for an appeal by the applicant against orders of the Federal Magistrates Court made by Federal Magistrate Barnes dismissing an application for relief under section 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal.

The Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa. Justices Gummow and Kiefel dismissed the application for special leave to appeal on 15 November 2007. The plaintiff then invoked the provisions of section 417 of the Migration Act 1958 (Cth).

By a letter dated 26 May 2008, the Department of Immigration and Citizenship informed the plaintiff to the following effect:

You requested that Senator Chris Evans, Minister for Immigration and Citizenship, consider exercising the public interest power available under section 417 of the Migration Act 1958 (the Act). Under section 417, the Minister may substitute for a decision of the Refugee Review Tribunal, a decision which is more favourable to an applicant, if he thinks it is in the public interest to do so.

Your case has been considered by Senator Chris Evans, Minister for Immigration and Citizenship. However, on 18 May 2008, he declined to consider exercising his power in this case.

The plaintiff commenced these proceedings seeking constitutional and related relief in relation to the actions of the Minister and seeking also an interlocutory injunction pending the determination of that claim for relief.

In the written submissions filed on behalf of the Minister it has been submitted, correctly in my view, that having regard to the provisions of section 417(7) the plaintiff is unable to demonstrate any arguable case for relief of the kind that has been claimed, either on a final or an interlocutory basis. In that respect, reference has been made to the decision of this Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441, paragraphs 44 to 48 and paragraphs 88 to 100.

Written submissions have been filed on behalf of the plaintiff. Fairly obviously, having regard to the plaintiff’s language difficulties, they were prepared on behalf of the plaintiff by somebody else. Whether that person was or was not legally qualified does not appear.

At all events I have taken account of those submissions and the further matter, such as it is, that has been added by the plaintiff through his interpreter today. I accept the submissions that have been made on the part of the first defendant.

Both applications, that is to say the application for an order to show cause and the application for an interlocutory injunction, are dismissed with costs.

AT 2.44 PM THE MATTER WAS CONCLUDED