WZANX v Minister for Immigration and Citizenship & Anor [2012] HCATrans 73 (20 March 2012)

Last Updated: 23 March 2012

[2012] HCATrans 073

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P42 of 2009

B e t w e e n -

WZANX

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Summons

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 20 MARCH 2012, AT 9.27 AM

Copyright in the High Court of Australia

MR P.R. MACLIVER: If it please, your Honour, I appear for the Minister. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Macliver.

MR MACLIVER: Your Honour, this is an application by the Minister for dismissal of the application in this matter. Your Honour will recall that the matter came on before your Honour as a matter of urgency for an urgent interlocutory application hearing and your Honour refused that application and suggested that the parties confer as to how the matter might proceed. Your Honour should have an affidavit sworn by Peter John Corbould in support of the application.

HIS HONOUR: This is the affidavit of 16 January 2012?

MR MACLIVER: Yes, your Honour, 13 January.

HIS HONOUR: I have read that affidavit.

MR MACLIVER: Yes, and that exhibits or annexes some correspondence between Mr Corbould and Ms Ling of the Australian Government Solicitor’s Office and Mr Shane Prince who was acting for and appeared for the plaintiff at the hearing of the interlocutory application. I do have a further affidavit, an affidavit of service, again sworn by Mr Corbould.

HIS HONOUR: Just let me read that, Mr Macliver. Pretty pointless sending a copy to the Immigration Detention Centre, was it not, given that the Minister knew he had been removed?

MR MACLIVER: Yes, your Honour, that is acknowledged, but service still had to be effected and that was simply the last address of service. Your Honour will note that these documents were also provided to Mr Prince and Mr Corbould annexes some further correspondence - email exchanges between himself and Mr Prince about the matter - and Mr Prince again confirms that he has no instructions, has had no contact from the plaintiff.

HIS HONOUR: Yes. I am just going back for a moment to the order I made. The original application in any event – I will just come up with it - was an application to – or came by way of interlocutory application to prevent his removal – the substantive relief sought was in relation to the decision to deport, was it not?

MR MACLIVER: Yes, and the decision of the - - -

HIS HONOUR: It was a writ of prohibition; that is right.

MR MACLIVER: Yes, prohibition, certiorari, mandamus and a declaration.

HIS HONOUR: The decision identified was the – well, that was a problem, I think. The decision was not identified. It was the prospective removal that was attacked.

MR MACLIVER: Prospective removal, yes.

HIS HONOUR: Yes, all right.

MR MACLIVER: The application also, I should note, your Honour, did not comply with the rules in that there was no affidavit filed with it.

HIS HONOUR: Having regard to the refusal of interlocutory relief, which rendered the substantive relief claimed futile, and the subsequent removal of the plaintiff from Australia, the application has no reasonable prospect of success and, having regard to the history of the matter, is not going to be prosecuted. On that basis the application will be dismissed and the plaintiff ordered to pay the first defendant’s costs, although I imagine that also is a rather academic order.

MR MACLIVER: Probably, your Honour, yes.

HIS HONOUR: Yes, all right, there will be orders in those terms. So the orders will be in terms of the summons. The plaintiff’s application for an order to show cause dated 10 October 2009 be dismissed. The plaintiff pay the first defendant’s costs.

MR MACLIVER: If your Honour pleases.

HIS HONOUR: Yes, all right. Thank you.

AT 9.33 AM THE MATTER WAS CONCLUDED