Plaintiff S262/2012 v Minister for Immigration and Citizenship & Anor [2012] HCATrans 337 (10 December 2012)

Last Updated: 18 December 2012

[2012] HCATrans 337

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S262 of 2012

B e t w e e n -

PLAINTIFF S262/2012

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO LINK TO SYDNEY

ON MONDAY, 10 DECEMBER 2012, AT 10.35 AM

Copyright in the High Court of Australia

MR R.J. BAIRD: May it please the Court, I appear for the first defendant. (instructed by Clayton Utz Lawyers)

HER HONOUR: Yes, thank you, Mr Baird. What is the position with this matter? Is this a matter, Mr Baird, in which it is suggested that the plaintiff has departed Australia?

MR BAIRD: Yes, your Honour, that is the case. We have filed an affidavit to that effect.

HER HONOUR: Yes. Is it an application in which it is said that the plaintiff departed Australia before there was any opportunity to serve the summons?

MR BAIRD: Yes, your Honour, that is the summons by which this matter comes before the Court this morning?

HER HONOUR: Yes.

MR BAIRD: Yes, removal was effected prior to that time.

HER HONOUR: Yes. So there is no utility in the plaintiff being called?

MR BAIRD: That is correct, your Honour.

HER HONOUR: Yes, very well, Mr Baird.

MR BAIRD: Thank you, your Honour. Your Honour, the matter comes before the Court this morning on a summons filed by the first defendant on 2 November 2012. By that summons the first defendant seeks orders that the proceeding, which is an application for an order to show cause, be dismissed and that the plaintiff pay the first defendant’s costs.

HER HONOUR: Yes.

MR BAIRD: There are three bases on which those orders are sought.

HER HONOUR: Those are set out in your outline of submissions, I think, Mr Baird?

MR BAIRD: Yes, your Honour.

HER HONOUR: In support of the relief claimed in the summons, you rely on an affidavit sworn by you on 2 November 2012?

MR BAIRD: Yes, your Honour, that is relied on in support of the first basis on which the first defendant seeks dismissal, and that is that as the plaintiff has departed Australia the grant of the relief sought by him in his application for an order to show cause would be futile.

HER HONOUR: That is because were he successful the only outcome of a further review of his application for a protection visa would require that he be present in Australia, is that the point?

MR BAIRD: Yes, your Honour, that is the point. A protection visa can only be granted to a non-citizen in Australia; the plaintiff is not in that position.

HER HONOUR: Yes. Now, in addition, Mr Baird, do you read the affidavit of Alissa Maree Crittenden, which was sworn on 4 October 2012?

MR BAIRD: Yes, your Honour, I do.

HER HONOUR: Yes, I have seen that. That is the affidavit to which a number of documents setting out the history of the matter are annexed.

MR BAIRD: Yes, your Honour, and that is relied on in support of the third basis identified in the submissions on which dismissal is sought, and that is that this proceeding is an abuse of process. The Refugee Review Tribunal decision in respect of which the plaintiff seeks relief has already been reviewed by the Federal Court and the Full Federal Court, and a special leave application to this Court was deemed to have been abandoned.

HER HONOUR: Yes, thank you, Mr Baird.

MR BAIRD: Thank you, your Honour.

HER HONOUR: On 19 September 2012, the plaintiff filed an application for an order to show cause claiming constitutional writ relief. The first defendant, the Minister for Immigration and Citizenship, by summons filed on 2 November 2012, seeks an order that the application for an order to show cause be dismissed and the plaintiff pay the first defendant’s costs. The second defendant has filed a submitting appearance.

The evidence discloses that the plaintiff was removed from Australia under section 198(6) of the Migration Act 1958 (Cth) on 17 October 2012. For the reasons that are set out in the outline of submissions filed on 6 December 2012, and in light of the history of the matter which is outlined in the affidavit of Ms Crittenden sworn on 4 October 2012, and the annexures thereto, I am satisfied that it is an appropriate matter in which to grant the relief that is sought by reason of the futility of the proceedings in that, were the plaintiffs successful, the Tribunal would be required to determine his application for review according to law.

The plaintiff’s complaint is with the Tribunal’s determination affirming a decision to decline to grant him a protection visa in circumstances in which the plaintiff is not in Australia and has no entitlement to return to Australia. On remittal, the Tribunal would be unable, as a matter of law, to exercise any of its powers under the Migration Act 1958 (Cth) other than the power to affirm the delegate’s decision. In the circumstances, it is unnecessary to address the further reasons advanced by Mr Baird in support of the relief that is sought.

For these reasons, the application for an order to show cause is dismissed. I direct the plaintiff to pay the first defendant’s costs.

AT 10.44 AM THE MATTER WAS CONCLUDED