Plaintiff M112/2010 v. Minister for Immigration and Citizenship [2012] HCATrans 274 (30 October 2012)

Last Updated: 22 August 2024

[2012] HCATrans 274

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M112 of 2010

B e t w e e n -

PLAINTIFF M112/2010

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 30 OCTOBER 2012, AT 10.59 AM

Copyright in the High Court of Australia
MR R.C. KNOWLES: May it please the Court, I appear for the defendant in this matter. (instructed by Australian Government Solicitor)

PLAINTIFF M112, appeared in person.

HIS HONOUR: You are the plaintiff in this matter are you, Sir? Again I say to you that I am not permitted to refer to you as I would ordinarily wish to with the ordinary courtesy of using your name. Forgive me for not doing so, but the law forbids me, I intend no discourtesy.

PLAINTIFF M112: Thank you.

HIS HONOUR: Now, Mr Knowles, this is your application on the summons of 19 October, is it?

MR KNOWLES: Yes, that is correct, your Honour.

HIS HONOUR: You rely on the affidavit of Ms Gangemi, affirmed on 19 October, is that right?

MR KNOWLES: That is right, your Honour, yes.

HIS HONOUR: You have filed a further outline of submissions, being the outline of 25 October, is that right?

MR KNOWLES: That is correct, your Honour, yes.

HIS HONOUR: Now, Mr Plaintiff, the position is this. Perhaps if you would come to the microphone. The Minister asks that I dismiss your proceeding. The Minister is relying on the affidavit I have referred to. He is relying on the outline of submissions. Do you have the outline of submissions?

PLAINTIFF M112: Yes, your Honour.

HIS HONOUR: You will see there the basis on which the Minister asks that the proceedings be terminated. You have, I think, been present in Court, have you not ‑ ‑ ‑

PLAINTIFF M112: Once before.

HIS HONOUR: ‑ ‑ ‑ while the application in the immediately preceding matter was dealt with an heard.

PLAINTIFF M112: Yes.

HIS HONOUR: You have heard then something about the nature of the issues that arise?

PLAINTIFF M112: No, can I explain what happened the other decision?

HIS HONOUR: Yes, of course.

PLAINTIFF M112: I came in by myself and then I was asked to be represented by a solicitor and the case was adjourned. I could not hear of anything – there was nothing said on that day.

HIS HONOUR: Yes. So, you are asking, are you, that the proceeding be adjourned, is that right?

PLAINTIFF M112: No. This time I got a summons for me to be present in Court today.

HIS HONOUR: Yes.

PLAINTIFF M112: Can I briefly explain my situation and what I have to say?

HIS HONOUR: Yes.

PLAINTIFF M112: My case goes from RRT to Federal Courts and from Federal Courts it was referred back to the RRT, and the RRT refused again, saying that it has no jurisdiction to consider the humanitarian claims, and it went to the Minister subsequently on section 417, and I believe we wrote to the Minister in 2008. The file was with the Minister for two and a half to three years, and then I think when there was a reshuffle in the government the Minister did not consider it, it was like very hastily made decision. Yes, that is what I feel, it was not considered ..... it was not considered because of the change of ministerial positions.

HIS HONOUR: Yes. Now, the Minister, as I understand the arguments that have been put in the other applications, would say that the Minister does not have to consider the application.

PLAINTIFF M112: I understand, yes.

HIS HONOUR: And the Court cannot order the Minister to consider the application. Those are two large hurdles that you would have to get over. Is there anything that you would wish to add or to say ‑ ‑ ‑

PLAINTIFF M112: It is only humanitarian; I do not have any legal case to go on this. I can say that I am not an economic refugee, I have come here as a politically persecuted person which was accepted. I have educated my children, paid full fees, then ..... I have not got any government support or any assistance and my daughter got her PR as well after her – she got education here. I can go back to Sri Lanka and come back with her support but still I do not want to do that because I really fear for my life. So these have not been considered properly but I have no legal grounds to stand on, I cannot change the law.

HIS HONOUR: And you know I am permitted only to look at the legal issues. I am not permitted, whatever my wishes, to look at other considerations.

PLAINTIFF M112: Yes, I understand.

HIS HONOUR: Mr Knowles, you have heard what the plaintiff has said. Is there anything you would wish to add to what you have said in your earlier submissions?

MR KNOWLES: Your Honour, no, save for two very minor points. One is in terms of dates of requests and decisions; they are set out in the initial submissions which were filed by the Minister on 22 March 2011. As to whether or not – and I may have misunderstood what the plaintiff was putting to your Honour as to whether or not he was ever determined to be a political refugee, the position ‑ ‑ ‑

HIS HONOUR: I think there was reference to his daughter obtaining permanent residence, I think, and the abbreviation PR I took to be the reference to permanent residence.

MR KNOWLES: I did understand, yes, that is how I understood that reference. I was merely referring to an earlier part ‑ ‑ ‑

HIS HONOUR: It is always dangerous in talking in abbreviations I know, but I hope I am right in that.

MR KNOWLES: I understand that acronym, your Honour. It was more that earlier I might have misunderstood the reference to having been – the plaintiff said he was not an economic ‑ ‑ ‑

HIS HONOUR: The plaintiff maintains that he has political fears if he goes back to Sri Lanka.

MR KNOWLES: That is right, but the only point I would make about that, your Honour, is that that was no accepted either by the delegate of the
Minister or the Tribunal, but save for that I do not say anything further than what is already put out in the further submissions as well as the submissions before them in writing. Thank you, your Honour.

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

PLAINTIFF M112: That is it.

HIS HONOUR: The plaintiff, a citizen of Sri Lanka, came to this country as long ago as December 2004. In January 2005, he with members of his family applied for protection visas but in June 2005 a delegate of the Minister refused to grant the plaintiff or his family protection visas. The plaintiff and other members of his family unsuccessfully applied to the Refugee Review Tribunal for review of the delegate’s decision, unsuccessfully sought judicial review of the Tribunal’s decision and unsuccessfully appealed and sought special leave to appeal against the dismissal of their judicial review applications.

In July 2008, the plaintiff and his family asked the Minister to exercise the power under section 417 of the Migration Act 1958 (Cth), but in August 2010 an officer of the Department of Immigration and Citizenship told the plaintiff that the Minister had personally considered the case but decided that it would not be in the public interest to intervene and that the Minister had therefore not exercised his power under section 417 of the Act. In addition, the letter informed the plaintiff that the case had been assessed against the ministerial guidelines concerning section 48A of the Act, and requests for ministerial intervention under that section, but that it had been decided that the case did not meet the guidelines and it was not sent to the Minister for consideration against that power.

On 9 September 2010, the plaintiff commenced proceedings in this Court by filing an application for an order to show cause challenging the Minister’s refusal to exercise powers under section 48B and it may be inferred also challenging his refusal to exercise powers under section 417 of the Act.

Following this Court’s decision in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 290 ALR 616, the Minister moves for termination of the proceedings. The Minister submits that in light of the Court’s decision in Plaintiff S10, the present application is bound to fail. The plaintiff, in the course of oral submissions to me this morning, indicated that his arguments in the end were fundamentally founded in humanitarian considerations, not legal considerations. As I then attempted to explain to the plaintiff, the only concern that I may lawfully have in disposing of this application is whether it is legally sound, regardless of the considerations to which the plaintiff pointed.

Having regard to the Court’s decision in Plaintiff S10/2012 and the conclusion there reached that the powers in issue in this case are, as they were there described, personal non-compellable public interest powers, the plaintiff has no entitlement to the relief which he would seek by these proceedings. It follows that the proceeding must be dismissed, Mr Knowles?

MR KNOWLES: Your Honour, the Minister would seek an order for costs.

HIS HONOUR: Must be dismissed with costs. Thank you for your attendance.

AT 11.11 AM THE MATTER WAS CONCLUDED