MZYGR v Minister for Immigration and Citizenship & Anor [2011] HCATrans 314 (10 November 2011)

Last Updated: 11 November 2011

[2011] HCATrans 314

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M29 of 2011

B e t w e e n -

MZYGR

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 10 NOVEMBER 2011, AT 9.34 AM

Copyright in the High Court of Australia

MR R.C. KNOWLES: Your Honour, if it pleases the Court, I appear for the first defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes. To your knowledge, is the plaintiff in Court or in the precincts of the Court?

MR KNOWLES: To my knowledge, no, the plaintiff is not in Court. As to precincts of the Court, I am not entirely sure, your Honour.

HIS HONOUR: I will have him called, Mr Knowles.

MR KNOWLES: Yes, I think that is wise, your Honour.

HIS HONOUR: But you are not aware of any appearance.

COURT OFFICER: No appearance, your Honour.

HIS HONOUR: Thank you. Mr Knowles, there is a difficulty in the matter which I should draw to your attention which occurred to me only last night as I was reading the papers. I was a party to the panel which disposed of the applicant’s application for special leave to this Court.

MR KNOWLES: Yes, your Honour.

HIS HONOUR: It occurred to me that that may present some issue in my dealing with the merits of the application. Two questions then are presented. First, is there any substance in those fears? Second, if there were substance in those fears, rather than let the matter, in effect, go off without being dealt with at all, are those fears present, or present at least to a compelling extent, if I were to dispose of the matter on the footing that for want of appearance the application is not prosecuted and is to be dismissed for want of prosecution? There is a complex of questions there. Deal with them in such order and way as you think appropriate.

MR KNOWLES: Yes, thank you, your Honour. In response to the first question, the Minister would submit that, with respect, there is no substance to those fears that your Honour has put forward. The special leave application was concerned with the merits no doubt. In this case, not only is there an issue that relates to the merits, there is also the issue of time and the fact that there has been no proper explanation for the extensive effluxion of time between the Tribunal’s decision and the application being made to this Court in its original jurisdiction.

HIS HONOUR: Well, there is an explanation, the explanation being that the applicant resorted to the judicial power of the Commonwealth in other ways.

MR KNOWLES: That is right. That is the explanation and it is submitted that it is not an adequate explanation. Otherwise, though, there is the issue of the plaintiff having resorted to the judicial power of the Commonwealth in other ways and that, in the Minister’s submission, gives rise to an abuse of process in the present case by reason of the plaintiff having had multiple bites of the cherry, so to speak, in the Federal Magistrates Court, the Federal Court and then this Court on the application for special leave. So there are other issues in play here, but it is submitted, in any event, when one turns to the merits, that agitating those issues again it is quite clear that there is no merit in the grounds that are advanced by the plaintiff, in my submission.

HIS HONOUR: If I have to get to the merits, is it not at that point that the difficulty emerges? I have already expressed my view on the merits once in disposing of the application for leave, and if it were necessary for the Minister’s argument for me to express a view on the merits which he sought to raise in the 75(v) proceeding, it occurred to me that it is at that point that a difficulty may emerge. Now, as I say, that then led me on to the further consideration of whether without embarking on any debate about the merits of the grounds advanced, the plaintiff not appearing, a possible point of view would be that the proceeding should stand dismissed for want of prosecution with no embarkation upon those questions of merits. I am sorry to present such difficulties to you, but they have to be identified and addressed.

MR KNOWLES: No, I perfectly understand that, your Honour. Perhaps if I just for a moment seek some instructions on the last point, your Honour.

HIS HONOUR: Yes, of course.

MR KNOWLES: If your Honour does have those fears and has those concerns, my instructions are that the first defendant would be quite content with a course which would involve dismissal of the proceeding for want of prosecution. Just in relation to that issue, though, your Honour, I should indicate, and there no doubt has been correspondence between the Court and the plaintiff about today’s date, but I also do have an affidavit of service, your Honour, in relation to the summons filed on 3 November this year and the supporting affidavit of Mr John David Brown dated the same date.

HIS HONOUR: Is that the affidavit affirmed on 3 November or is that a further - - -

MR KNOWLES: This is a further affidavit of service.

HIS HONOUR: Which you would seek to file in Court?

MR KNOWLES: I would, your Honour, just for the sake of notifying the Court that the plaintiff was aware of this date by reason of another means, not just the Court’s correspondence, but also by reason of correspondence from my instructors. There is fairly sizeable exhibits to it and that is simply a matter of the service of the summons and previous affidavit, your Honour, which had a number of exhibits to it. So that explains the size of the document.

HIS HONOUR: Yes, you have leave to file that in Court.

MR KNOWLES: Thank you, your Honour.

HIS HONOUR: This, as you say, deposes to communications that your instructor has had with the plaintiff?

MR KNOWLES: That is so, your Honour, in that on 3 November this year a copy of the summons and supporting affidavit was sent by express post to the plaintiff’s last known address and it is the address on the application, I should add, and your Honour will see in the letter, which is at the beginning of exhibit CMB1, paragraph 2, of that letter dated 3 November 2011 indicated to the plaintiff of the requirement to appear today at the Court.

HIS HONOUR: Thank you. Mr Knowles, if I were to make an order that the proceeding is dismissed for want of prosecution and that the plaintiff pay the costs of the application, is there any further order that would be required?

MR KNOWLES: No, your Honour.

HIS HONOUR: There will be orders in those terms.

MR KNOWLES: Thank you, your Honour.

AT 9.43 AM THE MATTER WAS CONCLUDED