Baledrokadroka v Minister for Immigration and Border Protection [2016] HCATrans 212 (7 September 2016)

Last Updated: 9 September 2016

[2016] HCATrans 212

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S269 of 2014

B e t w e e n -

SEMI BALEDROKADROKA

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 7 SEPTEMBER 2016, AT 9.31 AM

Copyright in the High Court of Australia

MR T. REILLY: If the Court pleases, I appear for the defendant. (instructed by DLA Piper Australia)

HER HONOUR: Yes, thank you, Mr Reilly. Perhaps the plaintiff might be called.

COURT OFFICER: No appearance.

HER HONOUR: Yes, thank you. Yes, Mr Reilly.

MR REILLY: Well, your Honour, I am not aware of a provision of the Rules dealing with non-appearance but, in the circumstances, we ask that the hearing proceed.

HER HONOUR: Yes. Is there any evidence, Mr Reilly, that the plaintiff was informed of the date of today’s hearing?

MR REILLY: I have such evidence, your Honour.

HER HONOUR: Yes.

MR REILLY: Can I file in Court an affidavit of Rachael Nadine Fresta affirmed 5 September 2016?

HER HONOUR: Yes, I will just read that. Thank you. Yes, Mr Reilly.

MR REILLY: Otherwise, I rely on my written submissions, your Honour.

HER HONOUR: Yes, thank you. Otherwise, you rely on your written submissions and in addition to Ms Fresta’s affidavit do I take it you also rely on the affidavit of Ms Hillary, which was filed on 1 September?

MR REILLY: Yes, your Honour, and there are actually two affidavits. There is that affidavit and Ms Stone’s affidavit.

HER HONOUR: And the affidavit of Ms Stone.

MR REILLY: Yes.

HER HONOUR: Yes, I have read the materials. Thank you.

On 20 October 2014, the plaintiff filed an application for an order to show cause claiming prohibition to restrain the defendant, the Minister for Immigration and Border Protection, from taking any further step in relation to the decision made on 15 January 2014 that the plaintiff’s applications for temporary and permanent partner visas were invalid. The plaintiff claimed certiorari to quash the decision and mandamus directed to the Minister requiring him to determine his applications for the grant of the visas according to law.

The plaintiff also applies for an order enlarging time in which to commence the proceedings. The application does not specify why it is necessary in the interests of the administration of justice to make the orders a condition of the making of an order extending time under section 486A of the Migration Act 1958 (Cth). The plaintiff has taken no step in the proceedings since filing the application. He has not filed a summons for directions or outline of submissions as required under Part 25 of the High Court Rules 2004 (Cth). In written submissions filed on 1 September 2016, the Minister foreshadowed his opposition to the extension of time sought and invited the Court to dismiss the application with costs.

I am satisfied that the plaintiff was served with notice of today’s hearing and with a copy of the Minister’s submissions. The plaintiff has not appeared today.

The plaintiff is a citizen of Fiji. He last entered Australia on 14 May 2012 on a tourist visa subject to the condition that “the holder will not after entering Australia be entitled to be granted a substantive visa other than a protection visa while the holder remains in Australia”. Section 41(2)(a) of the Migration Act states that the regulations may provide that a visa will be subject to a condition of this kind. The condition to which the plaintiff’s visa was subject is specified in clause 8503 to Schedule 8 of the Migration Regulations 1994 (Cth). Section 46(1A) of the Migration Act relevantly provides that:

“an application for a visa is invalid if:

(a) the applicant is in the migration zone; and

(b) since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and

(c) the Minister has not waived that condition...”

A delegate of the Minister found that the plaintiff’s visa applications were invalid because the plaintiff’s tourist visa was subject to condition 8503. The plaintiff’s show cause application was filed some eight months after the expiration of the 35-day period specified in section 486A of the Migration Act.

The plaintiff claims relief on the ground of an asserted denial of procedural fairness. He states that at the time he made his application there were “compelling and compassionate circumstances” which meant that the applications were validly made. The existence of compelling and compassionate circumstances does not bear on the validity of the applications. The existence of such circumstances is relevant to the Minister’s power to waive condition 8503.

To the extent that the application is to be taken as one for an order extending time under section 486A(2)(a) of the Migration Act, it is wanting in any satisfactory account for the delay. Moreover, the application does not disclose an arguable ground of challenge to the validity of the decision. I am not satisfied that it is necessary in the interests of justice to make an order extending time. For these reasons there will be the following order: application for an order to show cause is dismissed with costs.

Thank you, Mr Reilly.

AT 9.39 AM THE MATTER WAS CONCLUDED