Plaintiff S155/2011 v Minister for Immigration and Citizenship & Anor [2012] HCATrans 314 (3 December 2012)

Last Updated: 10 December 2012

[2012] HCATrans 314

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S155 of 2011

B e t w e e n -

PLAINTIFF S155/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Application for order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 DECEMBER 2012, AT 11.23 AM

Copyright in the High Court of Australia

HIS HONOUR: Could that matter be called outside the court?

COURT OFFICER: No appearance.

MS L.B. BUCHANAN: May it please the Court, I appear for the defendants. (instructed by Australian Government Solicitor)

HIS HONOUR: You have nothing to add, I imagine, to what is in the file?

MS BUCHANAN: Your Honour, we have filed a previous affidavit recording that the plaintiff was last recorded by the Department as being offshore and not being the holder of a current visa. I do have a further affidavit, if I might seek the leave of the Court.

HIS HONOUR: Certainly.

MS BUCHANAN: The further affidavit seeks to annex a letter sent to the last-known address in Australia in any event, but it also records the Department’s information as to that address and records that the plaintiff was recorded as still being offshore after the last occasion at which we appeared in the court.

HIS HONOUR: Thank you, Ms Buchanan. I grant leave to the defendants to file in court an affidavit affirmed on 30 November 2012 by Sylwia Iwona Kuzmiczenko.

On 29 April 2012, the plaintiff filed an application for an order to show cause why prerogative writs and other relief should not run. It complained that the first defendant, the second defendant and its officers had failed to observe natural justice in relation to ss 48B and 417 of the Migration Act 1958 (Cth). Those are provisions the plaintiff wishes to take advantage of with a view to overturning a prohibition against applying for a visa. The second defendant refused to refer to the first defendant the plaintiff’s applications under ss 48B and 417.

On 7 September 2012, the High Court of Australia had dismissed the applications in four representative actions being run by the solicitors with a view to settling the provision of numerous persons, including the plaintiff: Plaintiff S10 of 2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) ALJR 1019; 290 ALR 616. Those cases dealt with, inter alia, ss 48B and 417. They held that those provisions were not conditional on observing the principles of natural justice.

On 15 November 2012, the defendants filed written submissions contending that the plaintiff’s application should be dismissed with costs because of the decision in the four cases referred to. Those submissions are correct.

This morning there has been filed in court an affidavit establishing that an attempt to serve documents notifying the plaintiff of this morning’s proceedings at his last-known address as recorded by the Department of Immigration was unsuccessful. There is evidence that the plaintiff has left Australia and has no current visa for entry into Australia. That is another reason for dismissing the plaintiff’s application.

I order that the plaintiff’s application for an order to show cause be dismissed with costs.

AT 11.27 AM THE MATTER WAS CONCLUDED