Ahmad & Anor v The Minister for Immigration and Border Protection & Anor

[2016] HCATrans 209

[2016] HCATrans 209

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M94 of 2016

B e t w e e n -

NAEEM AHMAD

First Plaintiff

SARA ZAFER KHAN

Second Plaintiff

and

THE MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 6 SEPTEMBER 2016, AT 10.26 AM

Copyright in the High Court of Australia

MR R.C. KNOWLES:   If it pleases the Court, I appear for the first defendant.  (instructed by Sparke Helmore)

HER HONOUR:   Can the matter be called outside, please?

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Mr Knowles, do you know what the position is?

MR KNOWLES:   Do I know what the position is in terms of the plaintiffs?

HER HONOUR:   Yes.

MR KNOWLES:   No, your Honour.  My instructions are that my instructor has not heard anything from the plaintiffs and is unaware of what their situation is, I am afraid.

HER HONOUR:   We have written submissions, so it surprises me that they are not here.

MR KNOWLES:   Yes, and I can provide the Court with an affidavit of service that has been prepared by my instructing solicitors, if it is of some assistance.

HER HONOUR:   Yes, you can hand that up, please.  Yes, Mr Knowles.

MR KNOWLES:   Yes.  So, in the absence of any explanation for non‑attendance today, the Minister would seek that the matter proceed to be heard and determined on the basis of the materials before the Court, being the application, the summons, the supporting affidavit and submissions filed by the plaintiffs and the Minister’s submissions that have been filed and served around 26 August this year.

HER HONOUR:   Yes.

MR KNOWLES:   In that regard, your Honour will have seen that in this matter the plaintiffs, who are citizens of India, had applied for skilled visas, in particular Skilled (Provisional) Class VC visas, subclass 485 Skilled Graduate, and the application was refused and that refusal was affirmed by the then Migration Review Tribunal.  Your Honour will have seen the Migration Review Tribunal’s decision is exhibited to the affidavit prepared by the first plaintiff at exhibit NA‑1.

In short, the first plaintiff, who was the person who made substantive claims to satisfy the relevant visa criteria, was found not to satisfy the criterion concerned with English language ability.  In particular, the Tribunal was not satisfied that the first plaintiff had sat the relevant test and achieved the relevant score, in particular that score being at least six in each of the four test components of an IELTS test or a score of at least B in each of the four test components of an OET in tests conducted in the three years immediately before the day on which the visa application was made.

The plaintiffs then sought judicial review, in the Federal Circuit Court, of the Tribunal’s decision.  They did so some 390‑odd days out of time so it was necessary for them to seek an extension of time in which to bring that application for a judicial review.  The application for an extension of time was heard and determined by Judge Jones on 29 January this year and her Honour firstly had concerns about the explanation for the delay and, in particular, stated that that explanation was not convincing.  But, nonetheless, her Honour was prepared to overlook that delay if there was some merit in the substantive judicial review application.

In her Honour’s reasons for judgment, which are exhibited to the first plaintiff’s affidavit at exhibit NA‑2, at paragraph 24 of those reasons her Honour indicated that there was no merit in the application for judicial review and, on that basis, was not prepared to extend the time in which to make that application.

I should say at this juncture, your Honour, that her Honour referred to the single ground of judicial review that was brought, which is set out at paragraph 20 of the reasons for judgment delivered ‑ ‑ ‑

HER HONOUR:   Is that the one – the decision was made without jurisdiction and affected by jurisdictional error?

MR KNOWLES:   That is right, your Honour, and the particulars were simply that – and I quote:

I say that the tribunal has erred and I say that I have met the requirements of cl. 485.215 of Schedule 2 to the Regulations and that I do satisfy the criteria for the grant of a subclass 485 visa.

That clause, 485.215, simply requires that a person have competent English and “competent English” is defined in regulation 1.15C of the Migration Regulations 1994. The Tribunal had found that it was not satisfied that that requirement was met given that there simply were not test results to show that the definition was satisfied in terms of competent English. Her Honour stated at paragraph 24 of the reasons for judgment in the Federal Circuit Court:

in terms of the merits of the substantive application, which I must consider, in deciding whether to grant an extension of time, I would have to say that the merits simply do not exist.  It is not a question of them being minimal.  They just would not exist, because of the way the law operates.

Then what subsequently occurred was that the plaintiffs applied to the Federal Court for judicial review of the order made by Judge Jones not to extend time. The reason why the plaintiffs made an application of that nature, that is, seeking judicial review of Judge Jones’ order, was because subsection 477(2) of the Migration Act prevents a person making an application for an appeal from – or an application for leave to appeal from such an order.  Perhaps if I just go to that, it is subsection 476A(3).  Your Honour will see there that:

an appeal may not be brought to the Federal Court from:

(a)a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2) –

that is, an order in respect of an application for an extension of time.  So that was the reason why, given that statutory framework, there needed to be an application for judicial review in respect of the order made by Judge Jones not to extend time.  That application for judicial review came before Justice Bromberg and his Honour dismissed the application and found, relevantly, that the exercise of discretion not to extend time by Judge Jones did not miscarry in any way whatsoever. 

His Honour’s reasons for judgment are at exhibit NA‑4 of the affidavit of the first plaintiff, and at paragraphs, relevantly, 14 to 16 his Honour referred to the “straightforward” approach taken by the primary judge, namely, to consider the nature and extent of the delay, the explanation for it and then to consider whether there was merit in the substantive application.  At paragraph 16, Justice Bromberg stated:

The primary judge’s reasons do not reveal any misunderstanding or misapprehension of the function and discretionary power conferred upon her by s 477(2) of the Migration Act.  The primary judge correctly identified the nature of her discretion and exercised that discretion by reference to relevant considerations commonly applied by courts when considering whether to grant an extension of time.

Now, the application to this Court essentially seeks relief that is of the same nature as that sought before the Federal Circuit Court.  In essence, the plaintiffs now seek to have the Migration Review Tribunal’s decision set aside and have the matter remitted back to the Administrative Appeals Tribunal for determination according to law.  Obviously, it is necessary in respect of that application for that relief to seek an extension of time and they have sought that.

However, in addition to seeking that relief the plaintiffs have relied upon grounds that suggest that they may also wish to challenge the decisions of the Federal Circuit Court and the Federal Court.  So while there is no relief formally sought in respect of the Federal Circuit Court or the Federal Court, the grounds do refer to the decision of the Federal Court and - it does not appear, I should say, that there is actually reference to the Federal Circuit Court there ‑ ‑ ‑

HER HONOUR:   I do not think there is, is there?

MR KNOWLES:   No, I accept that, your Honour.  I am mistaken in that regard.  But it is difficult to know precisely what is challenged, save to say that the relief seems to be directed to the Migration Review Tribunal’s decision whereas the grounds are directed to both the Federal Court and the MRT.

Now, in terms of the arguments that are advanced in the application, I took your Honour earlier to the single ground that was raised before the Federal Circuit Court, and that is virtually identical, at least in substance, to the ground that is set out in the application to this Court.  So, in effect, again, the plaintiffs seek to relitigate something that has already been the subject of judicial consideration by Judge Jones.

In my submission, there was no error on the part of Judge Jones in finding that that ground had no merit and, for that reason, it is first submitted that insofar as the plaintiffs now seek judicial review of the Tribunal’s decision in this Court, that application is out of time and no extension or enlargement of time should be granted because there is no proper explanation for the delay and the prospects of success, in any event, given the nature of the ground and its previous determination by the Federal Circuit Court, those prospects are poor.

Insofar as the plaintiffs might otherwise seek to review the Federal Court’s decision, there is no error in what was determined by Justice Bromberg.  As his Honour rightly found, there was an orthodox approach to an extension of time by the Federal Circuit Court and the findings that were made were well open to the Federal Circuit Court in all the circumstances.

This is also a case which, insofar as it seeks to relitigate matters that have already been the subject of litigation below, in the Minister’s submission constitutes an abuse of process.  But also I should point out to

your Honour that the reasons for judgment and the decision made by Justice Bromberg is capable of appellate procedures that have not been employed by the plaintiffs.  So that is another basis upon which it is said that the plaintiffs should have undertaken that course rather than come to this Court.

All in all, it is submitted that insofar as an extension of time is required, in respect of the Tribunal’s decision no extension of time should be granted, otherwise the proceeding is without merit and ought to be dismissed.

HER HONOUR:   Thank you.  Have a seat, Mr Knowles.

On 11 July 2016, the plaintiffs filed in this Court an application for an order to show cause seeking constitutional writs and related relief.  The plaintiffs are citizens of India and are husband and wife and they were, and remain, unrepresented.

The plaintiffs did not attend the hearing before this Court today, despite having been sent a hearing letter and having been served with a copy of the first defendant’s written submissions attached to a letter reminding them the matter was listed for hearing today and that if they did not attend on that occasion the first defendant would seek for the application to be dismissed with costs.  It is on that basis that I proceeded to hear, and now determine, the matter.

The application for an order to show cause seeks an order in the nature of certiorari to quash the decision of the second defendant (then known as the Migration Review Tribunal) (“the Tribunal”) made on 27 February 2014 affirming a decision made by a delegate of the first defendant on 22 October 2013 not to grant the plaintiffs Skilled (Provisional) (Class VC) visas pursuant to the Migration Act 1958 (Cth) (“the Act”), an order in the nature of prohibition preventing the first defendant, his department or its employees and agents from taking any further step in reliance on the Tribunal’s decision, and an order in the nature of mandamus remitting the matter to the Tribunal to be considered according to law.

The application to show cause was filed outside the time for the filing of the application pursuant to section 486A of the Act and rules 25.06.1 and 25.07.2 of the High Court Rules 2004 (Cth) (“the Rules”). The plaintiffs seek and require an order for enlargement of time under section 486A(2) of the Act and rule 4.02 of the Rules.

It is first necessary to set out the events that have occurred since 22 October 2013.  The first plaintiff has filed an affidavit in which he has deposed to, and annexed documents setting out, the following facts and matters:

1.The plaintiffs applied to the Tribunal for review of the delegate’s decision. The delegate refused to grant the visas as the first plaintiff did not have the requisite English language proficiency as defined in regulation 1.15C of the Regulations and as required by clause 485.215 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). That requirement only had to be fulfilled by one of the plaintiffs. The second plaintiff would be granted the visa if she was the member of the family unit of a person, the first plaintiff, who was the holder of a subclass 485 visa. The Tribunal was not satisfied on the evidence that the first plaintiff met any of the requirements of clause 485.215 of Schedule 2 of the Regulations, and on that basis, the second plaintiff also did not meet the requirements of clause 485.321. On 27 February 2014, the Tribunal affirmed the decision of the delegate not to grant the visas.

2.In 2014, having received the Tribunal’s decision, the first plaintiff made an application to the first defendant to exercise his discretion pursuant to section 351 of the Act to grant the visas. On 16 April 2015, the first defendant made the decision not to exercise the discretion to grant the visas.

3.On 28 April 2015, the plaintiffs applied to the Federal Circuit Court for an extension of time to apply for judicial review of the Tribunal’s decision. The plaintiffs were 390 days out of time to make that application. Judge Jones considered whether, pursuant to section 477(2) of the Act, it was necessary in the administration of justice to extend the time for making the application. The plaintiffs’ reasons for the significant delay were first that, after the Tribunal made its decision, the first plaintiff suffered from depression due to his chronic relapsing pancreatic difficulties, and second that he was not aware (a) that he could request the Minister to exercise his discretion to grant the visa until he was told by someone, or (b) of the availability to seek judicial review as he was a foreigner and did not understand the law. Judge Jones was not convinced of the reasons for delay because the delay was for such a long period of time. Judge Jones found that had the merits of the case been strong, then her Honour may have overlooked the lengthy delay and the unconvincing reasons. However, the plaintiffs had only one ground of review – the Tribunal’s decision was made without jurisdiction and was affected by jurisdictional error. Judge Jones found the Tribunal correctly applied the law and that the decision disclosed no jurisdictional error. On 29 January 2016, Judge Jones refused the plaintiffs’ application for an extension of time.

4.On 11 February 2016, the plaintiffs filed an application with the Federal Court seeking orders pursuant to section 39B of the Judiciary Act 1903 (Cth) quashing or setting aside the orders made by the Federal Circuit Court. An application of that nature was necessary because section 476A(3)(a) of the Act prevents an application for leave to appeal from an order by the Federal Circuit Court refusing an application for an extension of time. The ground upon which the application was based was that the Federal Circuit Court and the Tribunal’s respective decisions were affected by jurisdictional error. Upon a consideration of the Federal Circuit Court’s decision, the Federal Court found that it did not reveal any misunderstanding or misapprehension by Judge Jones of the function and discretionary power conferred on her by section 477(2) of the Act. On 16 June 2016, the Federal Circuit Court dismissed that application.

To the extent the application in this Court seeks an order in the nature of mandamus and certiorari in relation to the Tribunal’s decision, the plaintiffs’ application for an order to show cause faces time limits.  The Tribunal’s decision was made approximately two years and five months prior to the plaintiffs filing their application in this Court.  This Court may extend the period of time if it is satisfied that it is necessary in the interests of the administration of justice to do so:  see Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470; 177 ALR 491 and section 486A(2) of the Act.

In this case, it is not in the interests of the administration of justice to extend the time for filing that application.  First, the plaintiffs had a right to apply for review.  That application was unsuccessful in the Federal Circuit Court and considered in the Federal Court.  The fact that those applications were unsuccessful does not justify an order extending the time limit for applying for judicial review in this Court.

Second, the merits of the plaintiffs’ substantive application were considered by the Federal Circuit Court and the Federal Court and dismissed because it had no merits or no prospects of success.  At a hearing of an application for an order to show cause, this Court may dismiss the application if it is not satisfied the application raises an arguable case for the relief claimed.  I have reviewed the plaintiffs’ complaint, the Tribunal’s decision and the respective decisions of the Federal Circuit Court and the Federal Court.  There is no identifiable error in any of those decisions.  The application to this Court does not disclose any arguable ground.  It seeks to relitigate matters already addressed by the courts below and, to the extent that the plaintiffs complain about the decision of the Federal Court, they have available appeal rights which they have not exercised.  Put simply, the argument sought to be advanced by the plaintiffs in this Court lacks merit and moreover, does not appear to relate to the relief sought in the application for an order to show cause.

Third, even if contrary to the view formed, the plaintiffs have an arguable case (which they do not), the plaintiffs have not demonstrated any adequate reason why an extension of time should be granted in relation to the decision of the Tribunal.

For those reasons, it is not in the interests of the administration of justice to make an order for enlargement of the time for the filing of the application to show cause, and the application to show cause should otherwise be dismissed.

The orders I make are as follows:

1.The plaintiffs’ application for an enlargement of time under section 486A(2) of the Act and rule 4.02 of the Rules is refused.

2.The plaintiffs’ application for an order to show cause is otherwise dismissed.

3.The plaintiffs are to pay the first defendant’s costs of the application.

Anything, Mr Knowles?

MR KNOWLES:   No, your Honour.

HER HONOUR:   Thank you.  Adjourn the Court.

AT 10.52 AM THE MATTER WAS CONCLUDED