Plaintiff S284/2008 v MIAC & Anor [2008] HCATrans 285 (6 August 2008)

Last Updated: 15 August 2008

[2008] HCATrans 285

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S284 of 2008

B e t w e e n -

PLAINTIFF S284/2008

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 2.56 PM

Copyright in the High Court of Australia

PLAINTIFF S284/2008 appeared in person.

MR T. REILLY: If the Court pleases, I appear for the first defendant. (instructed by Sparke Helmore)

HIS HONOUR: You are the plaintiff?

PLAINTIFF S284/2008: Yes, your Honour.

HIS HONOUR: Do you speak English?

PLAINTIFF S284/2008: Fairly good, yes.

HIS HONOUR: You go ahead and speak English and then if you need the assistance of an interpreter you just let me know and you can have the assistance of the interpreter.

PLAINTIFF S284/2008: Yes, I will.

HIS HONOUR: Yes, go ahead.

PLAINTIFF S284/2008: On February 18, 2008 I made a request to the Minister for Immigration and Multicultural Affairs to exercise his power under section 417. I made him a request - - -

HIS HONOUR: Just before you go any further, you filed affidavits on 17 June 2008, 30 June 2008 and 17 July 2008?

PLAINTIFF S284/2008: Yes, your Honour.

HIS HONOUR: Do you have any objection to those, Mr Reilly?

MR REILLY: Not other than instant relevance, your Honour. I do not think we have the one of 30 June.

HIS HONOUR: You do not have 30 June. I will just hand you down a copy.

MR REILLY: No, there is no objection to that, your Honour.

HIS HONOUR: I have read those affidavits. I have read a lengthy document entitled “PLAINTIFF’S WRITTEN SUBMISSIONS” filed on 1 August. I just want to pick up the letter advising of the Minister’s decision. Where is that?

PLAINTIFF S284/2008: Exhibit A.

HIS HONOUR: Exhibit A to which affidavit?

PLAINTIFF S284/2008: Affidavit filed on 17 June 2008.

HIS HONOUR: Yes, go ahead.

PLAINTIFF S284/2008: Your Honour, the second defendant, June Lee, the Director for the Humanitarian Branch, New South Wales failed to take into her learned consideration and advised the first defendant to exercise his power under the section 48 of the Migration Act 1958 in respect for the request made by the plaintiff to allow him to make a further application for the protection visa.

HIS HONOUR: Yes.

PLAINTIFF S284/2008: Because I did make the request under the 417 due to because I was appealing through a federal magistrate in a Federal Court.....the High Court special leave regarding my RRT appeal.

HIS HONOUR: When was your special leave application to the High Court?

PLAINTIFF S284/2008: Your Honour, it got dismissed on – the special leave was not.....on 7 March 2008.

HIS HONOUR: March 2008. Go ahead. Yes.

MR REILLY: Your Honour, I have a copy if that would assist?

HIS HONOUR: Could you hand that up?

MR REILLY: Yes.

HIS HONOUR: It appears that on 6 March 2008 Justices Hayne and Crennan dismissed an application that you made for special leave to appeal against the decision of Justice Dowsett of the Federal Court of Australia, is that right?

PLAINTIFF S284/2008: Yes.

HIS HONOUR: Yes. I have that.

PLAINTIFF S284/2008: All the relevant information I submit on here. The last written submission I submitted on 1 August 2008. I do not have anything to mention, your Honour, other than that submission.

HIS HONOUR: All right. Take a seat, thank you. Mr Reilly, I just wanted to ask you about section 48B. What was going on in that respect here?

MR REILLY: Your Honour, I think what happened was that while an application to consider 48B may not actually have been made by the plaintiff, the Department has a policy of considering it at the same time as a section 417 request and, as the letter from the Department states, the issue of the exercise of the Minister’s power under section 48B was assessed against the Minister’s guidelines and the case did not meet the guidelines and therefore was not referred to the Minister for consideration under section 48B.

HIS HONOUR: Just explain to me how 48A and 48B work? I think I am familiar enough with 417 but - - -

MR REILLY: Your Honour, 48B is a provision which will allow the Minister, personally, to determine that section 48A does not apply to prevent an application for a protection visa, so essentially it allows the Minister, personally, to determine that an applicant who has already made an application for a protection visa may make another application for a protection visa which we - - -

HIS HONOUR: Am I right in thinking that section 48B(6) is to substantially the same effect as section 417(7)?

MR REILLY: Yes, your Honour.

HIS HONOUR: Yes.

MR REILLY: Your Honour, I have mentioned in my written submissions that because of that, any suggestion that there was some error by the second defendant in not referring the matter, the 48B application, to the Minister must fail for the same reasons as the section 417 application.

HIS HONOUR: Is there anything further that you want to say?

PLAINTIFF S284/2008: No, your Honour.

HIS HONOUR: In 2007, the applicant, a citizen of Sri Lanka, sought special leave to appeal against the orders of a single judge of the Federal Court of Australia, Justice Dowsett, exercising the appellate jurisdiction of that court. By those orders Justice Dowsett dismissed the applicant’s appeal against orders of the Federal Magistrates Court, Federal Magistrate Cameron, 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. On 6 March 2008, Justices Hayne and Crennan of this Court, having determined that an appeal would have insufficient prospects of success to warrant a grant of special leave to appeal, dismissed the application for special leave to appeal. Subsequently, the plaintiff invoked the Minister’s power under section 417 of the Migration Act 1958 (Cth).

On 2 June 2008, the Department of Immigration and Citizenship wrote to the plaintiff in the following terms:

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 25 May 2008, he declined to consider exercising his power in this case.

The Department of Immigration and Citizenship has also initiated a request to the Minister to consider the exercise of his public interest power under section 48B of the Act in your case.

Under section 48B of the Act, the Minister may allow a person to make a further application for a protection visa if he considers it is in the public interest to do so.

Your request for the exercise of the Minister’s power under section 48B of the Act was assessed against the Minister’s Guidelines – s48A cases and requests for s48B ministerial intervention. However, your case did not meet these Guidelines, and therefore was not referred to the Minister for consideration under section 48B.

This concludes the consideration of your Ministerial Intervention requests under section 417 and section 48B of the Act.

The plaintiff then commenced these proceedings seeking constitutional and related relief in relation to the matters, the subject of the above information. The plaintiff filed lengthy written submissions and supplemented those submissions with brief oral observations on the hearing this afternoon. In the written submissions filed on behalf of the defendant, which appear to me to be correct, the defendant has drawn particular attention to the provisions of section 417(7) of the Act and section 48B(6).

Reference has also been made to a number of decisions of this Court, including Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 at paragraphs 44 to 47, 48 and 100.

I accept the submissions of the defendant to the effect that the material advanced on behalf of the plaintiff discloses no arguable case for relief of the kind sought. The application is dismissed with costs.

AT 3.10 PM THE MATTER WAS CONCLUDED