Plaintiff S65-2019 v Minister for Immigration and Border Protection [2019] HCATrans 144 (30 July 2019)

Last Updated: 30 July 2019

[2019] HCATrans 144

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S65 of 2019

B e t w e e n -

PLAINTIFF S65/2019

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 JULY 2019, AT 10.00 AM

Copyright in the High Court of Australia

HIS HONOUR: In this matter I make the following orders:

1. The application for an extension of time under section 486A of the Migration Act 1958 (Cth) is refused.

2. The principal application is dismissed.

3. The plaintiff is to pay the defendant’s costs.

I publish my reasons and I direct that those reasons be incorporated into the transcript.

By an application for a constitutional or other writ, filed in this Court’s original jurisdiction on 12 March 2019, the plaintiff seeks an order setting aside a decision of the Immigration Assessment Authority made on 13 November 2017. That decision affirmed an earlier decision of a delegate of the Minister for Immigration and Border Protection to refuse the plaintiff’s application for a protection visa.

The plaintiff has already attempted to challenge the Authority’s decision via the normal process of judicial review and appeal in the Federal Circuit Court and the Federal Court. His application for judicial review before the Federal Circuit Court was dismissed on 15 May 2018. By force of r 36.03 of the Federal Court Rules 2011 (Cth), the plaintiff had a period of 21 days after the Federal Circuit Court’s decision in which to file a notice of appeal in the Federal Court. He did not file a notice of appeal within that period. On 27 September 2018, a little more than three months after the Federal Circuit Court’s decision, he applied for an extension of time in which to file a notice of appeal under r 36.05 of the Federal Court Rules. That application for an extension of time was dismissed by Kerr J on 14 February 2019 in FHB17 v Minister for Immigration and Border Protection [2019] FCA 161. By force of s 33(4B)(a) of the Federal Court of Australia Act 1976 (Cth), the plaintiff is precluded from making an application to this Court for special leave to appeal from the decision of Kerr J.

The present application is directed not to the decision of Kerr J but to the decision of the Authority. The plaintiff does not allege that Kerr J acted beyond jurisdiction in refusing the application for an extension of time, and nothing in the material before me would support such a contention. Instead, the plaintiff says that it was the Authority who acted beyond jurisdiction and confines his arguments to alleged errors made by the Authority and apparently also by the delegate.

In seeking to invoke this Court’s original jurisdiction to review the Authority’s decision, the plaintiff encounters two difficulties. The first difficulty is that s 486A(1) of the Migration Act 1958 (Cth) imposes a time limit for seeking a remedy in this jurisdiction in relation to a “migration decision”. The filing of the present application having occurred long after the prescribed limit of 35 days from the date of the Authority’s decision, the plaintiff requires an order extending the 35 day limit for the application to proceed. I will treat the present application as seeking the making of such an order.

The second and more substantial difficulty is that this Court’s original jurisdiction to review the Authority’s decision is, as I said in Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676; 297 ALR 560; [2013] HCA 22, coextensive with the jurisdiction conferred by statute on the Federal Circuit Court to review the Authority’s decision. In having made an application to the Federal Circuit Court which was heard and determined by that Court, the plaintiff has already been afforded the opportunity which he seeks now in this Court. For that reason alone, in the absence of extenuating circumstances being shown which might justify the plaintiff being afforded a second opportunity to seek review of the decision of the Authority, the present application is an abuse of process and it is impossible to be satisfied in terms of s 486A(2)(b) of the Migration Act that it is necessary in the interests of the administration of justice to make an order extending the time limit for the application to proceed.

Relying on his allegation that the Federal Circuit Court “acted unlawfully” in this matter, presumably in reference to the time taken by that Court to furnish him with a copy of its reasons for judgment, the plaintiff contends that a costs order should not be made against him. In my opinion, the material before me discloses no reason to depart from the ordinary approach to costs.

Accordingly, the plaintiff’s application for an extension of time under s 486A(2) of the Migration Act will be refused, and his principal application for relief will be dismissed with costs under r 25.09.1 of the High Court Rules 2004 (Cth).

AT 10.01 AM THE MATTER WAS CONCLUDED