Tuesday, September 27, 2005

Plaintiff M70/2005 v MIMIA

Again, 22 September, application for mandamus and cert, way out of time, already heard by the Federal Court and decided in the absence of the Plaintiff.

Again, the Plaintiff's application was dismissed, with costs. Again, he/she was unemployed.

Can I just ask - what kind of justice system are we running? I can sympathise with the judges, hearing about a million cases a day, which must be decided in a particular manner, despite the probable lack of justice in the outcome.

I can sympathise with the lawyers too, arguing the same stuff in case after case. Filing the same motions and the same affidavits.

The problem in the Migration Act. This silly system allows thousands of dollars to wash through our court rooms in filing fees and lawyer costs. These costs are lumped on the applicant, who, in every case I have seen, needs an interpreter and has appeared in person (except for 1, beg yours.) Surely this is a waste of everybody's time.

I haven't even gone into the merits or otherwise of the legislation, that is not my field, really (see esp Andrew Bartlett). However, blind Freddie could see this is a huge waste of energy, time and money and for what purpose?? So we can deport or detain students who have had their visas cancelled, validly or otherwise?

Andrew Bartlett on student visas

Ekanayake v MIMIA was also heard on 22 September, 2005, in the High Court's original jurisdiction.

Without going into too much detail, this was a similar case to M51 and was discussed just before it. There were very similar facts, although the decision in question was that of the Migration Review Tribunal.

It seems that the Plaintiff had his student visa cancelled because his enrolment was supposedly terminated by the University of Melbourne for non-payment. His student visa was cancelled after this point. He submitted that he was enrolled at the time of the cancellation and, therefore, DIMIA had fallen into jurisdictional error.

Hayne J did not decide on the merits, rather on whether an extension of time should be granted, as again the Plaintiff's cert and mandamus claims were 7 and 11 months overdue. It was held that because the matter had been decided on its merits by the Federal Court, there could be no action in the High Court's original jurisdiction on the merits.

No extension was granted. Both this decision and M51/2005 were decided on the basis that ' [Constitutional or prerogative] writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.' This was taken from McHugh J's judgment in Re Commonwealth, Ex Parte Marks (2000) 177 ALR 491. (or here).

It seems a bit of a circular formulation to me, but there you go.

The other parallels I have noticed in these two cases are applications WAY out of time, as well as orders being made for costs. Also, it seems that when these cases are listed in the Federal Court of Federal Magis, the parties do not attend. This is a very preliminary view, but I would be interested to see what people thought about that. Access to justice??
We are going to have a go at reporting on High Court transcripts. We begin on 22 September, 2005, in the case of Plaintiff M51/2005 v MIMIA & Anor, which concerned an application by the Plaintiff for judicial review of the decision of the Refugee Review Tribunal, made on 30 April 2004.

The Plaintiff appealed to the Federal Magistrates Court, then to the Federal Court and, as evidenced by these proceedings, to the High Court. The Plaintiff did not attend the Federal Court hearings, claiming he was sick with arthritis, and could not walk.

Essentially, his claim for mandamus was 10 months overdue. He claimed he had further documents in India, which required more time to obtain. He also wanted cert, prohibition and injunction against the RRT decision.

Hayne J found that the Plaintiff's claim should be dismissed, on the basis that there were no grounds for an extension of time. He held that once such extension was not granted, there could be no prohibition or injunction granted.

So, M51/2005 found himself, without a lawyer, with an ailment which seemed to stop him getting to Court, having his application for a time extension dismissed. His 'documents' in India will not be able to be taken into consideration by the RRT and the decision will stand. Further, the government sought costs, and when asked if he/she could give any reason why costs should not be ordered, M51 replied that he/she was unemployed and could not pay the costs.

Hayne J replied 'I understand that. Nonetheless, the order will be proceeding dismissed with costs.'

I am the first to admit that I have no idea about how costs are awarded. However, that seems a bit tough!