Coenraad van der Westhuizen

Two recent decisions of the High Court caught my eye last week: Plaintiff S53/2019 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCA 42 and AWI16 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCA 43.

There is nothing strictly legally interesting about these two judgments. They are single-judge decisions in the High Court’s original jurisdiction where plaintiffs have sought to challenge, on a discredited legal basis, determinations of departmental officers not to refer the plaintiffs’ requests to the Minister for personal consideration of his intervention powers because they were found not to meet the guidelines. The same or similar template grounds have been rejected by the High Court in more than a dozen cases, including those cited in Plaintiff S322/2018 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 096 at [2].

However, what is interesting about the two recent judgments is that they have been published on AustLII now, despite having been handed down in June. Further, they have been assigned a medium-neutral HCA citation, rather than published as transcript and assigned a HCATrans citation as is more common for single-judge decisions of this type.

Perhaps the reason for this is Gageler J’s comment in AWI16 at [5]:

The systemic reasons why doomed applications of this sort continue to be filed by litigants in person lie beyond the province of this Court to investigate. It is important to record, however, that it is to be expected that persons having professional and ethical obligations in the provision of advice on migration law are not the source of the outdated templates that continue to be used.

The Court’s latest published judgments in this saga read as a plaintive cry in the face of being inundated with meritless applications pleading the same template grounds. Whether that cry will come to the attention of those drafting these applications, or whether they will listen, remains to be seen.