Plaintiff S322/2012 v Minister for Immigration and Citizenship and Anor [2013] HCATrans 1 (17 January 2013)

Last Updated: 29 January 2013

[2013] HCATrans 001

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S322 of 2012

B e t w e e n -

PLAINTIFF S322/2012

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 17 JANUARY 2013, AT 4.03 PM

Copyright in the High Court of Australia

PLAINTIFF S322/2012 appeared by telephone from the Immigration Detention Centre.

MS M.E. STONE: May it please the Court, I appear for the first defendant. (instructed by DLA Piper Australia)

IRENE ARIAS, sworn as interpreter:

HIS HONOUR: The plaintiff has filed this afternoon a summons seeking an order preventing his removal from Australia and has filed in support an affidavit by himself, affirmed today. Is there any other material the plaintiff seeks to place before the Court?

THE INTERPRETER: What the plaintiff is saying is that he has filed his application for an order to show cause. He has sent it to the Minister, to all the respondents that he has been required to. That is all the material he is relying on. He also said that he received a letter from the Minister saying that he is going to be deported on 18 January and he spoke to one of his friends that are in Villawood saying that – he has not been deported and he has filed the same application. So that is why he is wondering why he is being sent away and his friend is not.

HIS HONOUR: Thank you.

THE INTERPRETER: I think he has other things to say.

HIS HONOUR: He can say more in a moment. Ms Stone, do you have any material you wish to place before the Court by way of evidence?

MS STONE: No, your Honour. I do note that the Tribunal decision, which the plaintiff is seeking review of, is annexed to his affidavit. That would be all the evidence required.

HIS HONOUR: Thank you. Can you tell me when he was served with the notice of intention to remove him from Australia?

MS STONE: Yes, your Honour. Your Honour, I can tell you this if it assists the Court. I have a copy of the notice of intention to remove the plaintiff and it was dated 10 January 2013. There is a note that the plaintiff refused to sign on 10 January 2013.

HIS HONOUR: When is removal to occur?

MS STONE: Your Honour, tomorrow morning, 18 January at 9.20 am is the flight.

HIS HONOUR: Tomorrow morning?

MS STONE: Yes, your Honour.

HIS HONOUR: Thank you. Ms Interpreter, would you invite the plaintiff to say anything he wishes to say in support of his application?

THE INTERPRETER: Okay. What he just said is for the Court to please take into consideration his matter. It is a very difficult time for him. If he goes back to Cuba he will either be going into prison or he will get the death penalty. He has friends that he has spoken to and they have told him that if he comes back he will be going into prison and news from other people that if he does come back he will have a difficult time there. I think he has more information if you - - -

HIS HONOUR: Ask him to proceed.

THE INTERPRETER: Yes. He continues saying that he has received a lot of communication from friends that are in a similar situation that have been in contact with his family. The group that he was in they talk about the revolution in Cuba and how the situation is really bad over there and that his friend cannot find any job or anything like that because of what he says – of what they believe in and what they say about the revolution and the situation in Cuba. Can he continue?

HIS HONOUR: Yes.

THE INTERPRETER: Okay, the plaintiff continues saying that between the last three years he has got no home, no work. He has a daughter and his mother over there, that he cannot support them. That is why he wants to stay here in Australia to have the opportunity to work and be able to send them money and assist them. He continues saying that if he does go back he will either go into prison or get the death penalty and he does not want that. He wants to get good news from the Court today and that he is not sent back to Cuba tomorrow. He wants the Court to give him the opportunity for his case to be heard and not to be sent back to Cuba this way.

HIS HONOUR: Is there anything he wishes to say about the reasoning adopted by the Refugee Review Tribunal in his case?

THE INTERPRETER: He has no other material or anything else to say against the RRT decision. He said he has presented all the documents required that the Court has asked but if you need any other documents he will get them to the Court.

HIS HONOUR: Thank you. I do not need to hear from you, Ms Stone.

The plaintiff, who is in immigration detention, is a citizen of the Republic of Cuba. He arrived in Australia on 25 June 2010. On 23 September 2011, he applied to the Department of Immigration and Citizenship for a Protection (Class XA) Visa. A delegate of the Minister for Immigration and Citizenship refused to grant that visa on 7 November 2011. On 3 February 2012, the Refugee Review Tribunal affirmed the decision of the delegate.

On 6 November 2012, the plaintiff commenced proceedings in the original jurisdiction of this Court under section 75(v) of the Constitution seeking writs of certiorari and mandamus directed to the Tribunal and a writ of prohibition prohibiting the Minister from taking action on the basis of the decision of the Tribunal. On 10 January 2013, the plaintiff was notified of the intention to remove him from Australia under section 198 of the Migration Act 1958 (Cth). The removal, I am informed, is scheduled to occur early tomorrow morning.

By summons filed this afternoon the plaintiff seeks an interlocutory injunction restraining his removal pending the determination of his application for constitutional writs. The plaintiff has appeared before me today by telephone with the assistance of an interpreter. The Minister has been represented by a solicitor.

To obtain an interlocutory injunction in the circumstances that have occurred, the plaintiff must be shown to have an arguable case for obtaining the relief he seeks in the principal application for constitutional writs. The principal application alleges that the Tribunal denied the plaintiff procedural fairness, constructively failed to exercise jurisdiction and otherwise made errors of law. The allegations in the principal application are wholly unparticularised. No argument has been presented to me today in support of the application which adds flesh to those bare allegations.

I have made due allowance for the fact that the plaintiff is unrepresented and I have considered with some care the findings and reasons of the Tribunal. It is sufficient to say that I see no arguable basis for any of the allegations upon which the principal application is based and I discern no other basis on which the plaintiff might reasonably be argued to be entitled to the relief he seeks in the principal application. The application is dismissed.

Ms Stone, do you seek costs?

MS STONE: Yes, your Honour, the Minister seeks an order for costs.

HIS HONOUR: Would you have anything to say.

THE INTERPRETER: He has nothing to say.

HIS HONOUR: The application is dismissed with costs.

The Court will now adjourn.

AT 4.27 PM THE MATTER WAS CONCLUDED