Plaintiff S200/2011 v Minister for Immigration and Citizenship & Anor [2012] HCATrans 319 (3 December 2012)

Last Updated: 10 December 2012

[2012] HCATrans 319

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S200 of 2011

B e t w e e n -

PLAINTIFF S200/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Application for an order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 DECEMBER 2012, AT 11.46 AM

Copyright in the High Court of Australia

HIS HONOUR: Please call the plaintiff outside Court.

COURT OFFICER: No appearance, your Honour.

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

HIS HONOUR: Yes, Ms Buchanan.

MS BUCHANAN: Your Honour, I seek leave to file in Court an affidavit regarding attempted service on the plaintiff. This plaintiff is also recorded by the Department as being outside Australia.

HIS HONOUR: Yes, thank you. I grant leave to the defendants to file in Court an affidavit affirmed on 30 November 2012 by Sylwia Iwona Kuzmiczenko.

On 27 August 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 s 417 of the Migration Act 1958 (Cth). That is a provision 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 application under s 417.

On 7 September 2012, the High Court of Australia dismissed the applications in four representative actions being run by the solicitors with a view to settling the position of numerous persons including the plaintiff: Plaintiff S10 of 2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 86 ALJR 1019; 290 ALR 616. Those cases dealt with provisions which included s 417, and 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.

Evidence filed in Court this morning reveals attempts made by the Department of Immigration to serve on the plaintiff at the last address of the plaintiff known to the Department materials which would give him notice of the application being made today by the defendants. The form of service took the form of posting documents in an express post envelope. There has been no reply and no attendance. There is evidence that the plaintiff is no longer in Australia and does not hold a current visa for entry into Australia. That is another reason for dismissing the plaintiff’s application.

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

AT 11.50 AM THE MATTER WAS CONCLUDED