Plaintiff S16 of 2017 v Minister for Immigration and Border Protection [2019] HCATrans 25 (26 February 2019)

Last Updated: 1 March 2019

[2019] HCATrans 025

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S16 of 2017

B e t w e e n -

PLAINTIFF S16 OF 2017

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 FEBRUARY 2019, AT 10.03 AM

Copyright in the High Court of Australia
HIS HONOUR: In this matter the orders I make are as follows:

1. The plaintiff’s application under s 486A of the Migration Act 1958 (Cth) for an extension of time in which to bring the application for an order to show cause is refused.

2. Under r 25.09.1 of the High Court Rules 2004 (Cth) the application for an order to show cause is dismissed with costs.

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

The plaintiff is a citizen of Fiji who arrived in Australia in May 2012. On 18 September 2012, a delegate of the Minister refused an application by the plaintiff for a Protection (Class XA) visa. On 15 May 2013, the plaintiff lodged a further application for a Protection (Class XA) visa. By letter of that same date, a departmental officer notified the plaintiff that, as a result of the operation of s 48A of the Migration Act 1958 (Cth), his further application was not a valid application and would be treated as a request to the Minister to exercise his noncompellable power under s 48B of the Migration Act to lift the bar imposed by s 48A.

The plaintiff applied to the Federal Circuit Court of Australia for judicial review of the determination that his further application for a protection visa was invalid. On 14 March 2014, the application was dismissed on its merits by the Federal Circuit Court in SZSWA v Minister for Immigration & Border Protection [2014] FCCA 678.

On 16 January 2017, the plaintiff filed in the original jurisdiction of the High Court an application for an order to show cause by which the plaintiff sought relief including a writ of mandamus directed to the Minister for Immigration and Border Protection compelling the Minister to consider and determine his further application for a Protection (Class XA) visa. The plaintiff filed in support a short affidavit but has not filed any further evidence or submissions despite being sent a letter by a Deputy Registrar on 3 January 2019 drawing his attention to the High Court Rules 2004 (Cth) as amended from 1 November 2018 by the High Court Amendment (Constitutional Writs and Other Matters) Rules 2018 (Cth), relevantly directing him to file any reply to the Minister’s response to his application by 7 February 2019, and informing him that the application would in due course be referred to a Justice.

Exhibited to the plaintiff’s affidavit filed in support of his application to this Court are two documents which he says he did not provide (presumably to the Minister) before his application for a protection visa was refused. They are a Police Clearance Certificate and a Certificate of Rehabilitation, each apparently issued by the Fiji Police Force in August 2013. Both documents postdate the decision the plaintiff seeks to review.

Having been filed some 3 years and 7 months outside the 35day time period provided by s 486A of the Migration Act for the filing of an application for a remedy in the exercise of the High Court’s original jurisdiction in relation to a migration decision, the application cannot proceed absent an order under that section extending that period. Such an order can be made only on the basis of the High Court’s satisfaction that making the order is necessary in the interests of the administration of justice.

The plaintiff seeks an order extending the period for the making of the application. For the reasons that follow, the making of that order would not be necessary in the interests of the administration of justice.

As identified in the application to this Court, the sole ground on which the plaintiff claims relief is that the Minister failed to accord the plaintiff procedural fairness in determining that his application was invalid. In particularising this ground, the plaintiff contends that “compelling and compassionate circumstances have happened to [him] since [he] arrived in Australia” and that his application was therefore a valid application.

The plaintiff has advanced no explanation at all for the delay in bringing this application. The plaintiff’s application also seeks to litigate claims that either were made or could have been made in the earlier proceedings he brought in the Federal Circuit Court. As I explained in Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at 678 [13]; 297 ALR 560 at 563; [2013] HCA 22, to permit an unsuccessful applicant for judicial review in the Federal Circuit Court to rerun the application in the original jurisdiction of the High Court would be inconsistent with the nature of the judicial power already exercised by the Federal Circuit Court and subversive of the processes of appeal from that Court.

The plaintiff’s application for an extension of time under s 486A(2) of the Migration Act must be refused and, in consequence, his principal application for an order to show cause must be dismissed under r 25.09.1 of the High Court Rules with costs.

AT 10.04 AM THE MATTER WAS CONCLUDED