Ahmed v Minister for Immigration and Citizenship [2011] HCATrans 7

[2011] HCATrans 7

[2011] HCATrans 007

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S111 of 2010

B e t w e e n -

KHANDAKAR SAKIB AHMED

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Summons

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 JANUARY 2011, AT 9.40 AM

Copyright in the High Court of Australia

MR L.J. KARP:   May it please your Honour, I appear with MR P.D. REYNOLDS for the plaintiff.   (instructed by Parish Patience Immigration Lawyers)

MR S.B. LLOYD, SC:   If it please the Court, I appear for the defendant.  (instructed by Sparke Helmore Lawyers)

HIS HONOUR:   Yes, Mr Karp.  What is the initiating process?  You had better start at the beginning and then go through the affidavits.

MR KARP:   Yes, certainly, your Honour.  There is a summons dated 16 September 2010.

HIS HONOUR:   Yes.  That picks up the amended application, does it not, to show cause?

MR KARP:   It does, your Honour.

HIS HONOUR:   Where do I see that?  That was amended, was it?

MR KARP:   The application was amended.  The date of the amended document is 5 November 2010.

HIS HONOUR:   Yes, thank you.  That is right.

MR KARP:   The plaintiff also relies on additional submissions filed on 19 November 2010 to which there is attached a chronology and relevant legislation.  There are also a number of affidavits.

HIS HONOUR:   Yes.  We had better go through the affidavits.  Which ones are you reading?

MR KARP:   Two from the plaintiff, your Honour; one affirmed 20 May 2010.  That was only filed on 29 September.

HIS HONOUR:   Yes, I see.  This is affirmed on 20 May and filed on 29 September?

MR KARP:   That is correct, your Honour, yes.

HIS HONOUR:   Any objections to that?

MR LLOYD:   Your Honour, if I can say that I have spoken to my friend.  The course that we, between ourselves, thought would be an appropriate one is not to ask your Honour to make, as it were, findings of fact that would be relevant to the substantive proceeding but as were limited to order 4 of that summons, which is the extension of time, that your Honour will see from these affidavits the ambit of the factual dispute, I think. 

HIS HONOUR:   Yes, that is right.

MR LLOYD:   I wanted to cross‑examine some of my friend’s witnesses, he wanted to cross‑examine my witness.

HIS HONOUR:   Yes, I follow what you say.

MR LLOYD:   To that extent, I do not have any objections, but if it is understood that it goes on the basis that it is.....the evidence of what would be the evidence.

HIS HONOUR:   That is right, if the extension were to be granted.

MR LLOYD:   Exactly.

HIS HONOUR:   And we have to determine whether it is to be granted.

MR LLOYD:   That is so, yes, your Honour.

HIS HONOUR:   That is the reason for the summons?

MR KARP:   Yes, your Honour.  I agree entirely with my friend.  The plaintiff’s second affidavit is affirmed 5 November 2010.

HIS HONOUR:   Yes.

MR KARP:   There is an affidavit of Nafis Ahmed Khondker, also affirmed 5 October 2010.

HIS HONOUR:   Yes.

MR KARP:   I seek to read one affidavit of David Lee Bitel, also affirmed 5 October 2010, to which there are many exhibits.

HIS HONOUR:   Yes.  This is affirmed on 30 September and filed on the same day and has, as you say, a number of exhibits.

MR KARP:   Affirmed 5 November, your Honour, and filed on the same day.

HIS HONOUR:   On what date?

MR KARP:   On 5 November.

HIS HONOUR:   There is a bulky one of 30 September.

MR KARP:   I do not read that one.

HIS HONOUR:   Right.  Yes, I have the one of 5 November.

MR KARP:   As I explained in my written submissions, that is meant to replace and encapsulate the others.

HIS HONOUR:   I follow, yes.

MR KARP:   Your Honour, I understand my friend might have an affidavit as well.

HIS HONOUR:   Yes.

MR LLOYD:   Your Honour, I have read the affidavit of Mr Surender Etikala.  It was made on oath on 11 November and filed on 12 November.

HIS HONOUR:   Yes, I have that.

MR LLOYD:   The affidavit is defective in one sense.  In paragraphs 9 and 11 it refers to annexures A and B, but then, because obviously somebody has remembered this Court does not like annexures, they have then been turned into exhibits.  So I have tendered the exhibits A and B and say that they are the matters referred to as annexures A and B.

HIS HONOUR:   Right.  Thank you.

MR LLOYD:   Thank you, your Honour.

HIS HONOUR:   Is that the affidavit material?

MR LLOYD:   It is, your Honour.

HIS HONOUR:   So there is the summons filed 16 September, the amended application for the order to show cause filed 5 November, the affidavit of the applicant filed 29 September and filed on 5 November.  Then there is the affidavit of Mr Khondker filed 5 November and the affidavit of Mr Bitel filed 5 November and the last mentioned affidavit relied on by Mr Lloyd filed 12 November.

MR KARP:   Thank you, your Honour.  I am sorry, your Honour, my junior has pointed out to me that there were two affidavits of Mr Ahmed, the plaintiff, made on 5 November.  One was filed on 8 November and one on 5 November.  I do not know why that is so, but the one filed on the 8th has the exhibits attached to it.

HIS HONOUR:   Which one are you reading?  Both?

MR KARP:   No.  The one filed on the 8th.  I am sorry for that, your Honour.

HIS HONOUR:   Yes, I have it.  I will substitute that for the one filed on the 5th.

MR KARP:   Thank you, your Honour.

HIS HONOUR:   Pardon me a minute.  Right.

MR KARP:   Thank you, your Honour.  The focus of today’s dispute is section 486A of the Migration Act.  That can be found at page 13 of the legislation which is attached to the plaintiff’s additional submissions.

HIS HONOUR:   Section 486A?

MR KARP:   Correct, your Honour, yes.  Your Honour, I do not understand there to be any dispute as to the construction of that section.  The plaintiff submits that there is an extremely wide discretion given to the Court and that whether an extension should be granted in the interests of the administration of justice requires a weighing of all relevant aspects of the administration of justice, specifically in this case the questions of delay, any prejudice to the defendant, the merits of the plaintiff’s case, matters of public interest, whether there is a real chance of injustice to the plaintiff if an extension is not granted.

HIS HONOUR:   Just a minute.  Just say those things again.

MR KARP:   Certainly, your Honour.  Delay, any prejudice to the defendant, the merits of the plaintiff’s case, the public interest, whether there is a real chance of injustice to the plaintiff if an extension is not granted and the utility of any relief.  As I said, your Honour, I do not expect that there is any dispute as to the relevance of those issues.  If I may move on to the question of delay?

HIS HONOUR:   Yes.

MR KARP:   Your Honour, the primary reason for the delay, in my submission, is revealed by Mr Bitel’s affidavit at paragraph 25 – that is at page 7, your Honour – where Mr Bitel deposes to a meeting that he held with the plaintiff on 14 November 2007.  The conversation was to the effect that Mr Bitel told the plaintiff that he can go to court or the solution was going to court and the plaintiff said that he cannot afford to go to court, he does not have a work permit any more.  Mr Bitel then tried other means to obtain a visa for the plaintiff.  I submit that the reason that the plaintiff did not have a work permit was because of the combination of problems with his college and his family illnesses which led him, according to the evidence, to forget to renew his visa which had expired on 23 May 2007.  That can be found, your Honour, in his first affidavit filed on 29 September 2010 at paragraphs 6 to 7.

The problems with the college, in turn, stem from the purported issue of the notice under section 20 of the Eduction Services for Overseas Students Act which he said he did not receive and this resulted in him being excluded from classes.  That can be found, essentially, at paragraph 5 of his affidavit filed 29 September.  Therefore, your Honour, what I say was that the alleged non issue of the section 20 notice was at least a part of the cause of the plaintiff not renewing his visa thus losing his work rights and subsequently choosing a course of action other than going to court in 2007.  This is the fork in the road whereby one way of proceeding was chosen rather than another.

HIS HONOUR:   This the Minister’s discretion?

MR KARP:   Yes, your Honour, it is.  What the plaintiff did from that point was make an application for a another kind of visa and this is outlined in Mr Bitel’s affidavit from paragraphs 20 onwards.

HIS HONOUR:   Yes.

MR KARP:   My submission, therefore, is the delay is explained by the plaintiff seeking alternative remedy, as was the case in Miah.  I have a copy of Miah if that would assist your Honour.

HIS HONOUR: That is 206 CLR 57.

MR KARP:   Yes, your Honour, particularly at page 88, paragraph 107 per Justice Gaudron; page 103, paragraph 152, per Justice McHugh and page 125 at paragraph 219 per Justice Kirby.

HIS HONOUR:   What did the minority judges say?

MR KARP:   The minority judges, your Honour, were of the opinion that Mr Miah should fail, as I recall.

HIS HONOUR:   In any event.

MR KARP:   In any event, yes.  I will just – yes.

HIS HONOUR:   Yes, I see that.  That is right.

MR KARP:   In Miah, your Honour, the three Judges of the Court found that taking the alternative remedy in those particular circumstances was, or did excuse the delay in that case.  I would, with respect, call upon that case in support of my submission.  If I can move, your Honour, to the question of prejudice to the defendant.  In my submission, the defendant has not demonstrated any prejudice.

HIS HONOUR:   What would prejudice mean in this realm of discourse where there is a Minister with statutory powers?

MR KARP:   The questions would be factual, in this case.  There is a dispute as to whether a particular document was sent.  Mr Lloyd’s witness, Mr Etikala, gives evidence of the procedure undertaken by his college in sending out the document, the section 20 notice.  Mr Lloyd submits that due to the fluxion of time witnesses might be unable to recall events. 

HIS HONOUR:   Yes.

MR KARP:   If I can take your Honour to Mr Etikala’s affidavit at page 2, paragraph 8 initially.  The witness says that “IIBIT do not maintain a separate log of outgoing correspondence”.  He also says at paragraph 7 that the notices, once printed, were not signed by anybody at IIBIT.  They were generated electronically and that they were scanned into the central management system that IIBIT has, then that the copy was printed off, put in an envelope and posted out to the particular student involved. 

Now, Mr Etikala, in this case, does not give evidence of who may have carried out the procedure.  He does not give evidence of any efforts to find these people.  He does not give evidence of whether he may have done that himself, in this particular case.  In the circumstances, your Honour, the chances of anybody at IIBIT remembering this particular letter even a few weeks after it was sent are very small. 

In this respect, your Honour, could I also address specifically my friend’s submissions at paragraph 16 thereof.  If I could take your Honour to paragraph 16, my friend submits that Mr Etikala deposed that he no longer has any personal recollection of the sending of the notice.  Mr Etikala actually gives evidence that it was probably a member of his staff who sent the notice – that it was sent.  His evidence, my friend says, is therefore limited to the contents of the education provider’s files and its administrative practices.  Well, that is so.  My friend also says that “The delay in making the allegations about earlier events has inevitably meant that witnesses who might otherwise have been available to give information about relevant matters can no longer be identified or located”.  Well, there is no evidence of these people – of any attempt to identify or locate these people or whether, if they had been located, their memory may have dimmed with the passage of time.

My friend also says it may equally mean that documents which might have been material may no longer exist or be able to be located.  Well, Mr Etikala’s evidence at page 2 of his affidavit, paragraphs 6 and 7, are simply that he had a central management system, the document was printed off what appears to be a secure database or a secure system….., was sent by an officer of IIBIT and nothing was kept and there is no indication that any paper record was kept.  Therefore, your Honour, my submission is that there is no demonstrable prejudice to the defendant.

If I can move on to the minutes of the plaintiff’s case, the defendant raises a question of onus of proof at paragraph 20 of his submissions.  The plaintiff in this case has had to prove a negative, that the section 20 notice was not sent.  In my submission he has done everything he can that can be expected of him to prove that negative.  He has given evidence that he did not receive the section 20 notice and he has done that at paragraph 5 of his ‑ ‑ ‑

HIS HONOUR:   What does section 20 require?  It says:

A registered provider must send . . . a written notice ‑ ‑ ‑

MR KARP:   The notice has to be sent.

HIS HONOUR:   “Sent” does not seem to carry a notion of receipt.

MR KARP:   No, it does not, and specifically, your Honour, the consequence of the notice being sent, which appears at page 9 of the documents, section 137J of the Migration Act, the section applies even if the notice is not received.  Your Honour, as I said, the plaintiff has given evidence he did not receive the section 20 notice.  That is one point.  The other point, possibly more important, is that he has given evidence that what he did receive from IIBIT, when he went to see them in November 2007, was a document dated 28 February 2007 which the parties agree could not have been issued on that date and that is because it contained references to the ‑ ‑ ‑

HIS HONOUR:   Reference to the wrong provision.

MR KARP:   To later provisions, yes.

HIS HONOUR:   Where do you make that point in your written submissions?

MR KARP:   Page 4, paragraph 12, your Honour.

HIS HONOUR:   Yes, thank you.

MR KARP:   So, your Honour, in my submission, the plaintiff has done everything within his power to adduce evidence of the document not being sent and the evidentiary onus, in my submission, has shifted to the Minister.  Now, at the heart of the matter was the factual question which, indeed, touches all other aspects of the case, that is that if, as Mr Etikala deposes in his affidavit, that there was a copy of the “real” section 20 notice on the IIBIT system and that that document was actually generated by the PRISMS system on 28 February 2007, why was the plaintiff given a document dated 28 February 2007 which could not have possibly been issued on that date?  There is no evidence as to what other way he could have got it.

Now, this leads into the questions of justice to the applicant and also the plaintiff and the public interest.  In my submission, there is a real possibility there has been considerable injustice to the plaintiff.  If a visa is cancelled by operation of law without the notice having been sent, the plaintiff has been deprived of an opportunity to put his case under section 137J or to request revocation of the cancellation pursuant to section 137K.

HIS HONOUR:   How do you say 137J and K work in this situation?

MR KARP:   They are an alternative procedure, your Honour.  The student can ‑ ‑ ‑

HIS HONOUR:   Assume your client could make out a case that the notice was never sent.

MR KARP:   Make a case the notice was never sent, then what would happen is that his visa was not cancelled by operation of law, therefore the application for a student visa made in September 2007 would be a valid application.  It was rejected as invalid by the Department. 

HIS HONOUR:   On the ground?

MR KARP:   On the ground that he had had a visa cancelled, section 48.  I am not sure that section 48 has been produced, your Honour.

HIS HONOUR:   Section 48?

MR KARP:   Yes.

HIS HONOUR:   That picks up 137J.

MR KARP:   Yes.

HIS HONOUR:   May apply for a visa of a class prescribed but not for a visa of any other class.

MR KARP:   Yes.

HIS HONOUR:   What has been prescribed?

MR KARP:   What was prescribed at the time were protection visa, certain other types of visa – I am sorry, your Honour, I cannot remember the ‑ ‑ ‑

HIS HONOUR:   Not a student visa?

MR KARP:   Not a student visa, no.

HIS HONOUR:   That is agreed, is it not, Mr Lloyd?  Yes.

MR KARP:   The student visa could not have been granted because it would have been lodged out of time, more than 28 days after the last visa expired.

HIS HONOUR:   Yes.  Where do we see that limitation?

MR KARP:   It would be in the student visa ‑ ‑ ‑

HIS HONOUR:   Regs, will it not?

MR KARP:   Regulations, Schedule 2 itself.  I thank my friend.  It is subclass 572.211(3)(c).

HIS HONOUR:   What does that say?

MR KARP:   It says:

the application is made within 28 days (or within such period specified by Gazette Notice) after:

(i)the day when that last substantive visa ceased to be in effect ‑ ‑ ‑

HIS HONOUR:   But if he had never been cancelled by force of 137J, he would not have had a problem with this time limitation, would he?

MR KARP:   He still would have had the problem with this time limitation, yes.

HIS HONOUR:   Why?

MR KARP:   Because he applied for this visa in September 2007.  His last visa expired in May.

HIS HONOUR:   Even if it had not been cancelled it would have expired in May?

MR KARP:   Yes, but there are additional issues involved.  The first is that the visa application lodged in September would have been valid, which means it could have been taken to the MRT, which means there could have been a more timely application under section 351 for the Minister’s discretion.  That could have and, indeed, can still be argued that had the cancellation been brought to his attention earlier before the visa had expired, it may well have permitted him to address the question of the non‑attendance at class and it may have reminded him to renew his visa.  So there are a number of ways that what I say the non‑sending of the section 20 notice could have affected him and, indeed, the utility, if I can move to that issue, of the ‑ ‑ ‑

HIS HONOUR:   Yes.  Now, Mr Lloyd says – paragraph 25 perhaps of Mr Lloyd’s written submissions filed 24 November:

??? No material or utility.  At most success in these proceedings will allow the plaintiff to approach the Minister again under 351 of 417.

MR KARP:   That is correct.  However, if there is a judicial finding that the notice was not sent, the section 20 notice was not sent, and – the plaintiff is in a much better position to argue that there was a great injustice done to him back in 2007 rather than simply to contend that this was the case.  So if extension is granted and if he wins in the court below, in the Magistrates Court, he will have a judicial finding in his favour rather than simply a contention of fact.

HIS HONOUR:   What relief would he get in a Magistrates Court?

MR KARP:    He would get, presumably, a declaration that the section 20 notice was not sent, a declaration that the application that was lodged for a student visa in September 2007 was valid, and a ‑ ‑ ‑

HIS HONOUR:   Or was not rendered invalid by ‑ ‑ ‑

MR KARP:    Was not rendered invalid by ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ force of 137J.

MR KARP:   Section 48.

HIS HONOUR:   By force of 48(1)(b)(ii).

MR KARP:    Yes, that is correct.  I will be seeking an injunction or a writ of mandamus directed to the Minister to determine his student visa application according to law.  Your Honour, if I can just go back to the questions of injustice to the plaintiff and the public interest.  In my submission, if it can be proved that the notice was not sent, he has been denied a right to be heard pursuant to either section 137J or 137K.  There was also an issue ‑ ‑ ‑

HIS HONOUR:   Just a minute.  How would 137K work in this case?

MR KARP:    Well, if he did not make himself available to an officer for the purpose of explaining the alleged breach of a notice, he could have argued for revocation of the cancellation under 137K.

HIS HONOUR:   But the exclusion on that process by subsection (2) would not exclude him, would it?

MR KARP:   It would, as would subsection (4), but had the notice been sent and had it been received those exclusions would not have operated, or may not have operated had he made the application for revocation either – well, within 28 days of the date of the cancellation, which would have been about 28 March 2007. 

Just to conclude, in my submission, there is a public interest in this issue as well.  It involves the integrity of the system of visa cancellation of – or cancellation of student visas for the operation of section 137J requires a section 20 notice to have been sent.  In my submission, the public has an interest in knowing whether or not the system is working.  There is also a more general public interest in keeping public officials within the law as stated by yourself and her Honour Justice Gaudron in Aala 204 CLR 82 at pages 103 to 104, paragraph 45. I can hand up a copy of that judgment if you wish.

HIS HONOUR:   I am familiar with that.  Just pardon me a minute.  Yes, there is no need to hand that up.

MR KARP:   Thank you, your Honour.  Your Honour, unless I can further assist those are my submissions.

HIS HONOUR:   I am looking at the further amended application of 5 November.

MR KARP:   Yes, your Honour.

HIS HONOUR:   I am looking at the relief.  It is really paragraph 1 that founds the summons, is it not?

MR KARP:   Yes.

HIS HONOUR:   That cannot be remitted, we all agree.  The balance of the relief would be sought in the Magistrates Court, would it not?

MR KARP:   That is correct, your Honour, yes.

HIS HONOUR:   On remitter?

MR KARP:   Yes.

HIS HONOUR:   Thank you.

MR KARP:   May it please the Court.

HIS HONOUR:   Yes, Mr Lloyd.

MR LLOYD:   Thank you, your Honour.  Could I start by saying something about the summons, and what your Honour is determining today is paragraph 4 of that summons?  It refers to the two kind of ‑ ‑ ‑

HIS HONOUR:   Just a minute.  Yes.

MR LLOYD:   I just note that it refers both to section 486A and also to rule 25.06 of the High Court Rules, which are two different constraints.  As to the first, section 486A, the form of the constraints are different, I just wanted to draw that out for your Honour.  Section 486A provides a time limit within which an application for judicial review must be made but then confers a power on the court to extend the time.

HIS HONOUR:   Yes.

MR LLOYD:   The High Court Rules time limit constrains the power of the Court to issue an order in a particular form, namely, an order to show cause, unless an extension of time, but it does not preclude you applying for an application to show cause, it just precludes the issue of that order.  Now, the point I say there is that as far as my client is concerned it is section 486A that bites, it is not the other one.

HIS HONOUR:   Yes, I think that is right.

MR LLOYD:   Apart from anything else ‑ ‑ ‑

HIS HONOUR:   I think Mr Karp said so.

MR LLOYD:   The other one only relates to certiorari anyway and my friend is after mandamus and other things.

HIS HONOUR:   Yes.

MR LLOYD:   Then going to the further amended application, if I note – obviously, paragraph 1 raises the extension of time issue.  Paragraph 2 refers to the decision of 24 September 2007; that is defined as the decision and a writ of certiorari sought in respect of it.  Paragraph 4 seeks a writ of mandamus in respect of the decision which is, in effect, to say to compel the Minister to consider that student visa application and it is the application for the writ of mandamus which enlivens this Court’s jurisdiction under 75(v). 

Paragraph 5 refers to an injunction or prohibiting the Minister from giving effect to the decision where the decision is to not do anything.  It is difficult to see what that means other than to compel.  If it has any content at all it is just to compel the Minister to do something as opposed to not do something, which we say goes no further than just the mandamus really, it is just seeking to compel the Minister to act upon that student visa application.

Paragraph 3 is slightly different.  It is a declaration not directed specifically at the 21 September or the 24 September decision, but really to the underlying circumstances which are said to show error in that decision and so the declaration we say would add nothing to mandamus, at least at face value.  If we were to get mandamus the Court would need to issue a declaration because presumably the Court’s reasons would ultimately say that there was a flaw in the 24 September decision that went to jurisdiction.

HIS HONOUR:   Yes, but Mr Karp says a declaration can be shown to the Minister.

MR LLOYD:   I am sure it could be, your Honour.

HIS HONOUR:   Rather than trawling through reasons.

MR LLOYD:   Well, that may be so, your Honour.  I will come back to the declaration point, but my point is that it is at least intimately related to the mandamus issue.  Now, we say that the further amended application is within the terms of 486A(1), being an application to the High Court for a remedy to be granted in the exercise of the Court’s original jurisdiction in relation to a migration decision.  A migration decision – I will not take your Honour to it but I will just refer to it – is defined in section 5 of the Migration Act, that that picks up the meaning of privative clause decision and purported privative clause decisions in section 474(2), and clearly under 474(3)(g) and (3)(j) the refusal to deal with a visa application is a migration decision.

HIS HONOUR:   Yes, just a minute - 473?

MR LLOYD:   Section 474(3)(g) and/or (3)(j).  So the refusal to deal with a visa application would fall within that.  So the relevant decision I think is not in dispute is the 24 September 2007 decision.

HIS HONOUR:   Where do we actually see that?  Where is that conveyed?

MR LLOYD:   It is in a number of places, but it is on page 58 of the exhibit to Mr Bitel’s lengthy affidavit.

HIS HONOUR:   Yes.

MR LLOYD:   Now, this is in a sense I think not a matter of any critical importance, but ‑ ‑ ‑

HIS HONOUR:   Well, I am not sure I understand this letter.  “I refer to your attempt to make an application.  Our records show that your student visa application was refused”.  What is that a reference to?

MR LLOYD:   That would appear to be an error, your Honour, it should have said, “was cancelled”.

HIS HONOUR:   Yes.

MR LLOYD:   That was clarified a few weeks later in a phone call.

HIS HONOUR:   Where is the evidence of the phone call?

MR LLOYD:   Can I bring your Honour to that, I am going to take your Honour through some evidence later and I will bring your Honour to that?

HIS HONOUR:   All right.

MR LLOYD:   Now, the reason why ‑ ‑ ‑

HIS HONOUR:   It does not seem streamlined administration at the moment.  Anyhow, go on.

MR LLOYD:   It is just a matter of really trying to assist your Honour in relation to why section 486A, which was enacted in 2009, applies to a 2007 decision.

HIS HONOUR:   Yes.

MR LLOYD:   So I just wanted to complete the picture.  I can give your Honour a copy of the transitional provisions to the 2009 Act.  This is extracted from the ComLaw site.  The relevant one is in Schedule 2, item 7, sub‑item (2):

If the application relates to a migration decision made before the commencement of this Schedule –

which is this particular decision –

for the purposes of applying –

those three sections, which includes 486A, that –

treat the date of the migration decision as the date of that commencement.

The date of commencement was 15 March 2009.  So the effect of all of that was for any old decisions people would have a fresh 35 days from that date to bring proceedings, starting from 15 March 2009, without section 486A having any application, but if you had not brought proceedings within that 35‑day period then 486A applies to all older decisions.  So that is all I sought to get from that just to draw the picture in for your Honour as to how that works.  Then in terms of the meaning of section 486A(2), we accept that it confers a discretionary power that is not tightly constrained and the power may be exercised if:

(b)the High Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

We do not contest or deny that the Court can take into account such matters as reasons for delay and the apparent underlying merit, or lack thereof, of the proceedings or, for that matter, the other maters raised by my friend or relied upon by him.  We say that what your Honour should do is if, having regard to all of those matters, namely the merit and the quality of the explanation for the delay and any prejudice by either party, if a compelling case is made that a refusal to consider an application would lead to a failure in the administration of justice, then it may then be possible to say that it is necessary in the interests of the administration of justice.  For reasons I will now turn to we say that your Honour should not be satisfied that it is so necessary and that your Honour should dismiss the application.

The one further thing I should say is that I have noted that this application falls within 486A(1).  That means that the further amended application for an order to show cause cannot, in fact, be made lawfully to the Court.  What can be made lawfully to the Court, because 486A(1) applies, an application for an order – an application to this Court for remedies in the original jurisdiction cannot be made outside the 35‑day limit.  What can be made is an application under section 486A(2)(a).  So the Act expressly provides that.  Now, as a question of form, we do not take issue, but what we say is your Honour should treat the current further amended application, as it were, as a draft amended application.

HIS HONOUR:   Yes, that is right.

MR LLOYD:   And as an application under 486A(2)(a).  Now, I then come to the circumstances of the case.  The relevant beginning point, we say, is that in – well, it is convenient to begin with, say, the beginning of January 2007.  The plaintiff was at that time doing a business course at this school called IIBIT.  He had a visa which expired on 23 May 2007.  So that is a convenient starting point. 

HIS HONOUR:   The problem arises from the scheme of the Education Services Act by giving serious responsibilities to these registered providers who are not officers of the Commonwealth and their efficiencies or inefficiencies are then visited in the operation of the Migration Act itself.  I mean, that is the system we have to work with but that is the source of the problem.

MR LLOYD:   That is so, but, your Honour, the way this ‑ ‑ ‑

HIS HONOUR:   You have not got the registered provider’s, as it were, business records immediately in your control as part of the Department’s structure.  This has been outsourced and the outsource comes back to determine the operation of the law of the Commonwealth.

MR LLOYD:   I accept all of that, your Honour, but the way the section 20 notice works is that it tells the person they should go to the Department.  That is all it does.  If you go to the Department that is the end, there is no longer any cancellation.  The section 20 notice has no longer any significance whatsoever and if you are to be cancelled ‑ ‑ ‑

HIS HONOUR:   The question is this word “send”, you see.

MR LLOYD:   I accept that.

HIS HONOUR:   Anyone who has been a solicitor knows in any contractual dispute about sale of land all sorts of problems arise about sending notices.  The people who drafted this Act do not seem to have been aware of the porcupine that strides across the stage when you introduce this word “send” a notice.

MR LLOYD:   With respect, your Honour, the Migration Act specifically envisages that it does not have to be received so the intention was that it is enough that it be sent.

HIS HONOUR:   Quite.  I know that, Mr Lloyd, and that makes it all the more necessary to look very closely at this concept of “send”.

MR LLOYD:   I accept that ultimately the effectiveness of the section 20 notice turns upon whether it was sent.

HIS HONOUR:   Because this is harsh legislation, very harsh legislation, if it is triggered by a notice that is never received by the recipient who is adversely affected by it.

MR LLOYD:   Your Honour puts it that way and while I accept at one level you can say that but in the normal course, not this case, but in the normal course, if a section 20 notice is sent and received the person would then go to the Department, presumably.

HIS HONOUR:   Is there any explanation of how you send?

MR LLOYD:   How it was sent in this particular case?

HIS HONOUR:   No, how you send - by mail, email, what?  What method?

MR LLOYD:   I think under the Acts Interpretation Act it includes sending by prepaid post.

HIS HONOUR:   …..have a look at that.

MR LLOYD:   I do not have a copy of it here but my recollection is it is maybe 25D or C, around that area.

HIS HONOUR:   I do.

MR LLOYD:   It is 28A and 29, perhaps, or 28E.

HIS HONOUR:   Well, 28A does not help, does it?  It does not require service on the person.  That is the whole purpose of this rather draconian section.  It is under the heading “Judicial Expressions” in Part VI.  Judges do not normally order things to be sent other than in the hope they will be received.

MR LLOYD:   I accept that, your Honour.  As I understand the case put ‑ ‑ ‑

HIS HONOUR:   Is there anything in the Education Act that tells you what “send” means?

MR LLOYD:   No, your Honour.

HIS HONOUR:   All right.

MR LLOYD:   In my submission – and as I understand it it is not in dispute – that if Mr Etikala or one of his staff posted it they accept that that would be effective.  Can I just go back to the way the Act operates in the normal course.  In the normal course, if the section 20 notice is sent and received then the person can go to the Department.  If it is sent and not received for any reason then it is true that the cancellation will have effect, but if at any time during the existence of that person’s current visa they go to the Department such as to apply for another visa while they still have a visa, they will then be told that there has been a cancellation and they would then be able to ‑ ‑ ‑

HIS HONOUR:   They should be told.

MR LLOYD:   Indeed, should be told, typically would be told and would then be able to apply for the revocation because their current visa is still extant.  The problem here arose in this case because the present plaintiff did not even go to the Department for months after his current visa expired.  That is why it has this effect on him.  The way the Act is structured is not as draconian as your Honour puts it because either you get the notice and you go to the Department or you do not get the notice but some time before your visa expires you go to the Department and you will be told then, if you are applying for a new visa, you cannot apply because you have been cancelled and then you apply for revocation and then it proceeds on that basis.

In any event, we have January 2007, the current plaintiff has a visa expiring on 23 May.  In February 2007 his education provider informs him that they will issue a section 20 notice and that is in his affidavit filed in September. In paragraph 5 he refers to a conversation with the principal of the ‑ ‑ ‑

HIS HONOUR:   Just a minute - affidavit of what date?

MR LLOYD:   The affidavit – it is affirmed on 20 May 2010.

HIS HONOUR:   Filed?

MR LLOYD:   29 September 2010.

HIS HONOUR:   Yes.  Paragraph?

MR LLOYD:   It is paragraph 5.

HIS HONOUR:   Yes.

MR LLOYD:   In paragraph 5 he refers there to the principal, who is our witness, Mr Etikala, having refused to let him continue and telling him that he will be sent a section 20 notice.  Our friends in their chronology attribute that, on page 2 of their chronology, to February 2007.  I should not say 28 February, but in February 2007 he was told a section 20 notice would be sent to him for non‑attendance.  That is how they describe it.  He is told that by the principal.  If I just stop there and say that is why we say if I had have come quicker we would be prejudiced because the principal was a person who they say was personally involved in Mr Etikala’s case.  If they did not wait two and a half years he may well have had a better recollection as to what happened.  Then on 28 February we say a section 20 notice was issued.  A copy of that notice appears on the file of the IIBIT, when we asked for it at least, as exhibit A to the affidavit of Mr Etikala.  That document is dated ‑ ‑ ‑

HIS HONOUR:   How has this been generated?

MR LLOYD:   According to Mr Etikala what happens in paragraph 7 of his affidavit is once the section 20 notice report was run on PRISMS, that is a database controlled by the government but given access to by education providers and by completing that database a report is issued in a predetermined form, so it is not really – there are spots to be filled in as to the reason for it and to addresses and the like but the form is predetermined, and so they fill out the PRISMS database and then a report is printed out and what he says is they electronically scan a copy of the printed version of the IIBIT’s records and this attachment A is a copy of the scanned version from their records.

HIS HONOUR:   Where do we see the later letter that was shown to Mr Karp’s client?

MR LLOYD:   That is exhibit B to the same affidavit.  Your Honour will see at the bottom of the one printed out we say on 28 February is this sort of line of information, a URL note and the date 28 February in the bottom right‑hand corner.

HIS HONOUR:   Yes.

MR LLOYD:   That is printed out from PRISMS and we say that is printed out from PRISMS on 28 February which is the date Mr Etikala said it was printed out and sent.  Then if your Honour goes to exhibit B you have another standard form, a section 20 notice, but from 1 July 2007 the law changed so the form changed and you have the same sort of basic data but inserted into the later version of the form.  Your Honour can see on pages 17 and 18 in the bottom right‑hand corner that the date of 14 November 2007 is there, the last two pages of the exhibit.

HIS HONOUR:   What is the deponent’s explanation?

MR LLOYD:   The deponent’s explanation is at paragraph 13.  What he says he thinks happened – he is of the opinion is that when they came – I think there is no dispute that on 14 November the plaintiff came to IIBIT and asked for a copy of his section 20 notice and according to the plaintiff Mr Etikala asked one of his staff to provide that copy and what Mr Etikala has said is his opinion is that rather than print it out from their CMS version, the one that was actually sent, they have gone back into PRISMS and in effect generated a fresh one with the same data, so that is why it says 28 February, the same address, but they have gone back into the system and rather than print out the one that was sent they printed out a new newly generated one for that date which is why it has the newer legislation on it.

We say it is a distraction.  The question is your Honour has a copy which Mr Etikala says he got from his file.  He explains the system they have of printing it out and posting it and we say that there is no basis to think that the usual process was not taking place.  The only basis, of course, is the plaintiff says he did not receive it and we say, well, that is no basis to say that it was not sent, maybe it was lost in the mail, but the way the legislation works it puts the burden upon the plaintiff and while that might be harsh nonetheless that is the choice of the Parliament and, your Honour – not that I am asking your Honour to make this finding but we say that on the evidence while something muddled happened in November 2007 there is clear evidence that something proper happened on 28 February, which is the critical date, and that it was sent and that there is no real basis to draw any inference other than that.  It was sent and ‑ ‑ ‑

HIS HONOUR:   It does suggest though, perhaps, that the information provider’s systems were not entirely efficient.

MR LLOYD:   Well, to suggest that on ‑ ‑ ‑

HIS HONOUR:   They have generated this other – whatever you like to call it, this document that is exhibit B.

MR LLOYD:   I accept that the exhibit B document is unfortunate and it shows that the education provider’s processes in November 2007 were flawed, but that does not affect the effectiveness of what happened in February.

HIS HONOUR:   Why not?  It is a matter of common sense.

MR LLOYD:   I say as a matter of law the question is – on 28 February it was not sent.  It was ‑ ‑ ‑

HIS HONOUR:   It is a question of inference and evidentiary burden – not ultimate burden, perhaps, but evidentiary burden at this level and I am asking myself whether I should grant leave to make an order under 486.

MR LLOYD:   I am not suggesting it is impossible that a judge would find that this was enough to raise doubts about what happened on 28 February, but that it is only part of our case.  This goes to, as it were, the merits part.  We have other delay issues which we principally rely upon, but we say that there is clear evidence of a valid notice.  No issue is taken about the content of the one printed out on 28 February and there is evidence of a process in place by IIBIT to scan it, and this was taken from the scan, and to send it and so the sole question is whether or not the Court would be prepared to draw an inference that that usual practice was complied with.  If I can continue, there is other factual matters of relevance.

On 28 February the plaintiff received advice from his lawyer and one point to note is at all relevant times – I accept Mr Bitel was on holidays periodically, but over the three‑year period the plaintiff had access to lawyers the whole time, so it was not a situation where he was unassisted by lawyers.  According to their chronology, on 28 February the plaintiff received advice from his lawyer to extend his student visa.  So he was told in a timely way that his current student visa, the one that was to end on 23 May, was to expire and that he should do something about getting another student visa. 

Then, according to the plaintiff, from late February 2007 he was precluded for three months.  He says, in effect, in paragraph 5 he repeatedly tried to go to this college and they would not let him go.  The staff would not let him attend.  He gives no evidence that he asked why or he asked about a section 20 notice.  He does give evidence that they said they were going to issue a section 20 notice.  He does not ask if they have done.  He does not give evidence as to why he did or did not seek to clarify why they were not letting him, but for three months, he suggests in paragraph 5, he tried to attend the course and they repeatedly did not let him attend.  So we say that is a relevant matter as to the efforts that the plaintiff made. 

He did not act on his lawyer’s advice between February and May and seek a further student visa.  In March 2007, according again to their chronology, and they give a reference to it, Mr Bitel calls the education provider and is advised that the plaintiff has been reported to DIAC.  So we say at that time Mr Bitel was on notice that there had been a report of the non‑attendance to DIAC; still nothing relevant is done.  Then on 23 May if, contrary to our view, the section 137J cancellation is invalid, then his existing student visa expires in any event.

HIS HONOUR:   Yes.  What is that date?

MR LLOYD:   That is 23 May 2007.

HIS HONOUR:   Looking at the applicant’s affidavit filed 29 September, it is in between paragraphs 7 and 8?

MR LLOYD:   Yes.  The end of paragraph 6 refers to the visa expiring on 23 May 2007.

HIS HONOUR:   He says he forgot it.

MR LLOYD:   He says he forgot.  My friend posits this as all being related to the cancellation and the section 20 notice, but, according to the plaintiff, he did not know about that, so we say it has nothing to do with the cancellation.  He did not renew his visa for reasons – it may well be because he was sick and because he was not being allowed to attend the course.  I mean, they may have played into it, we are not saying that they were not, but it has nothing to do with the cancellation.  On his view, it has to do with the fact that he just did not do it on time and then he did not still do it for some time thereafter.

HIS HONOUR:   Until 21 September.

MR LLOYD:   Yes.  He also attributes in a sort of vague way this loss of what my friend I think referred to as a work permit.  There are no such things as work permits, but there are conditions on visas that allow you to work.  If one accepts that he had a condition which allowed him to work on his student visa, which is probably right, that expired on 23 May 2007 because he did not do anything to renew it, nothing to do with any cancellation, and so he then became an unlawful non‑citizen from that time.  Then in July 2007 he was again informed by his solicitor ‑ ‑ ‑

HIS HONOUR:   Wait a minute.  Then paragraph 9 of his affidavit ‑ ‑ ‑

MR LLOYD:   That is the same letter your Honour has seen before from Mr Bitel’s affidavit.

HIS HONOUR:   Yes.

MR LLOYD:   There is a kind of a jump there, but there is some further explanation as to what happened in Mr Bitel’s affidavit around paragraphs 14 and 15.  Relevantly, at paragraph 14 he had a meeting, Mr Bitel, and he is advised to apply for a further student visa again.  It may well have been too late.  It might not have been good advice, but nonetheless, that was not immediately acted upon.  However, by 21 September then the student visa application is finally made which is the application which was responded to on 24 September.  It is worthwhile, however, for your Honour to see ‑ ‑ ‑

HIS HONOUR:   Just stopping there for a minute.  The operation of 137J would disqualify that application, would it not?

MR LLOYD:   That is so.

HIS HONOUR:   Regardless of questions of time?

MR LLOYD:   Correct.  The schedule – maybe if I make that slightly – my friend took you to the critical section, section 48, but it plays in with section 47.  Under section 47 the Minister has a duty to consider valid applications and a duty not to consider invalid applications under 47(3).  Then under section 46(1)(d), I think, an application will not be a valid application if it is prevented, inter alia, by section 48.

HIS HONOUR:   Yes, you are quite right.

MR LLOYD:   The way it sort of works is if you have had a cancellation, you are prevented by section 48 from making other applications other than a few, one of which is a protection visa application, and any application you purport to make will be an invalid application and the Minister is bound not to consider them, and that is the effect of, we say, the 24 September letter.  Mr Bitel was well aware of that and if I take your Honour to exhibit DLB11, which is page 31 of the thick Mr Bitel’s affidavit or exhibit.

HIS HONOUR:   Page?

MR LLOYD:   Page 31 in the bottom right‑hand corner.  This is the covering letter for the student visa application.  The relevant bit I would draw your Honour’s attention to is on page 33.  At the top of that page, the first item, 572.211(1) and (3) says:

??? The application is made in Australia and the applicant is not a holder of a substantive visa.  The last substantive visa held by the client was a student visa.

It does not say when.  It does not say the application was made within 28 days of that visa expiring.  Then over on to page 34 in the third‑last substantive paragraph Mr Bitel frankly acknowledges that his client cannot really succeed on this student visa application, but he wants to do it and the strategy is ‑ ‑ ‑

HIS HONOUR:   Just a minute, 572.211, what period is that?

MR LLOYD:   That is, you have to apply within 28 days of your last visa.  There is a recognition there, but he has a strategy which is a plausible strategy which is, “I am going to apply for a visa – I can validly apply for this visa.  I am going to lose.  I am going to go to the MRT and I am going to lose again, but then I can go to the Minister’s discretion under section 351.”  That was the strategy.  The sole purpose of all of this is to get to the Minister’s discretion.  We then have the letter which your Honour has seen of 24 September.

HIS HONOUR:   Just looking at page 34 again, the 28 days, measuring it from May, had long gone by September?

MR LLOYD:   Yes.  Well gone, yes.  All of those irrespective of the cancellation.  The cancellation added insult to injury because it said, well, actually, you cannot even get to this way of getting to the Minister’s discretion because the application is invalid and if it is invalid, you cannot get to the Minister’s discretion by this route.  That was the significance of it.

HIS HONOUR:   Where do we see that?

MR LLOYD:   The fact that you cannot get to the Minister’s discretion?

HIS HONOUR:   To the Minister, yes.

MR LLOYD:   If your Honour looks at section 351, it allows the Minister to substitute a more favourable decision than the MRT, but you can only get to the MRT if there is a MRT reviewable decision and, in short, an application to refuse to consider an application is not an MRT reviewable decision.  So you cannot get to the MRT from the decision to not consider an application.  If your Honour looks at section 347, this provides really what an MRT reviewable decision must be.  I am, in effect, stating a negative.  I do not think it is in issue.  It certainly was not an issue with Mr Bitel.  All of those things are, in effect, being refused visas or being cancelled visas but not refusing to consider an application.  That was the strategy to get to 351. 

The letter of 24 September says section 48 is engaged.  We accept that it said the wrong reason why section 48 was engaged but, nonetheless, we say if the cancellation was valid, then it was a correct letter, in any event.  We then go to 18 October and if your Honour turns to page 61 of the exhibit of Mr Bitel, there is there a file note by Mr Turner, who is a solicitor in Mr Bitel’s employ, or who was any way, and that shows that there is a discussion about the challenging of the decision to refuse to consider the application.  The relevant bits really start at around about point 7 where Mr Turner says:

??I told him I needed 25 hundred to lodge it in the court.  He said he had paid all this money to PPI –

which Parish Patience Immigration –

why should he pay more.  We should just tell the Department of Immigration and Citizenship that he had not been refused before.  I tried to explain that as they believed he had us telling them would not make any difference.  He won’t appeal but still wants us to fix it.  I told him the only way to fix it was to go to court.  He insisted that we should fix it without going to court.  He got agitated and left saying he would take his case elsewhere.  I reminded him that the last day for lodgement was Monday.

He does not say he cannot afford it.  He just says, “I have paid enough and I do not want to do it that way.”  That was 18 October.  We then have a meeting six days later between the plaintiff and Mr Bitel, the partner of the firm, which is referred to in paragraph 22 of Mr Bitel’s affidavit, the consequence of which was that the plaintiff had come back to that firm.  Mr Bitel said he would call and then in paragraph 23 – your Honour asked me earlier where is the evidence of the call.  There is then evidence in paragraph 23 that ‑ ‑ ‑

HIS HONOUR:   Paragraph 23 of what?

MR LLOYD:   Mr Bitel’s affidavit.

HIS HONOUR:   Of what date?

MR LLOYD:   There is only one, but the date of it is 5 November 2010.  It is the affidavit attached to the large exhibit.

HIS HONOUR:   Paragraph 23?

MR LLOYD:   Paragraph 23.  In paragraph 22 there was that conversation noted there where the plaintiff has gone back to see Mr Bitel and Mr Bitel basically agreed to keep acting and said he would call the Department of Immigration and then in paragraph 23 he reports that he has called them and that is where he is told about the section 20 notice having been issued and the 28‑day period having expired.  So certainly from that point on, 30 October 2007, they were on notice of that issue. 

Then on 8 November 2007 Mr Bitel sent a letter to the plaintiff.  That letter can be found, I think, at page 64 and the thrust of that letter is you should go and get yourself a copy of the section 20 notice and if it has some flaws with it, we could challenge it.  That is what we say is the gist of that.  Then we have a situation that on 14 November the plaintiff and his brother go to the IIBIT and one way or another they come back with that flawed notice; so a notice which on its face is clearly flawed.

Did they challenge it at that time when given a clearly wrong notice?  No, they do not challenge it.  What they do is they come up with a different strategy, a non‑litigation strategy.  What they decide to do is they only want to get to the Minister’s discretion.  What they could do, instead of going to court, is they could put in a protection visa application, not one with any prospect of success, but a valid application.  They can go to the RRT.  They can lose in the RRT and then they can get to the Minister’s discretion under section 417, the exact same discretion, without the need to even do the whole student visa application, which they also cannot win - an entirely plausible strategy which they carried to fruition. 

So that strategy was entirely successful in the sense that they got to access the Minister’s discretion.  It was also successful in the sense that the Minister personally considered the case advanced and there is a huge amount of material, which I do not propose to take you to, of submissions by Mr Bitel and supporting affidavit, as to why the plaintiff should be allowed to stay.  The Minister looked at it personally and decided not to intervene.  That takes us through to - that whole RRT process and the like takes us through to July 2009. 

HIS HONOUR:   Where did you say the chronology was?

MR LLOYD:   I understand that it is attached to my friend’s additional submissions.

HIS HONOUR:   Yes, that is right.  Yes, thank you.

MR LLOYD:   So looking at that, we go through to the bottom of page 6.  The last entry on page 6 of that is the Minister refusing the section 417 application in July 2009; so 2007, 2007, 2009.  Then in August 2009 we have a letter sent to the Department saying, “You know that application for the student visa, the one which we said we could not win and we just wanted to do it to access the Minister’s discretion which we have already just access, you know that one?  We say it was valid and we want you to consider it now.”  The Department – this is third entry on page 7 – says, “No, we do not think it is valid”.  Then on 23 September Mr Bitel informs the plaintiff that he should apply to the Federal Magistrates Court.  So that is 23 September 2009.  Do we have an application at that stage?  Still, no.

Then one waits till – looking at their chronology – December 2009.  Perhaps I should say something more about 23 September.  It is said, well, Mr Bitel was overseas for that period, but the plaintiff said that he refused to deal with anyone other than Mr Bitel.  He was told that he should apply in September.  He did not accept that at that time and came back later.  He got additional advice apparently in December 2009, but then of course some months had gone by even since the August request; they would be outside of time again. 

So then the next strategy is in January 2010.  You write in effect the same letter saying, “You know that application in September 2007, we still say it is valid”.  Then the Department writes back a week or so later saying, “Well, we still say it is invalid”.  Then an application is then made to the Federal Magistrates Court, purportedly within time of that January 2010 decision, purporting to challenge it as if it were a fresh decision.  That is in the Federal Magistrates Court. 

That application, for reasons which are explained in the plaintiff’s submissions as being on bad advice, is then discontinued on 3 March.  So although it should have been done by the federal magistrate and could have been, it was discontinued.  Then for no apparent reason, there is then another seven-week gap before, at the end of April, proceedings are brought in this Court.

HIS HONOUR:   Now, wait a minute.  Why would it have been competent in the Magistrates Court?

MR LLOYD:   Why would it have been?

HIS HONOUR:   Yes.

MR LLOYD:   Because the decision whether or not to consider an application – or, rather, to not consider an application is a migration decision.

HIS HONOUR:   Yes.  Which application?

MR LLOYD:   That 21 September 2007 application.  So judicial review could have been made to the Federal Magistrates Court – was made and could have been made to that court and that is why your Honour can remit it.  Your Honour can only remit it to a court with jurisdiction.  We all agree that the FMC has jurisdiction – could have been, should have been made and then, of course, that court would have had to do the exact job that your Honour is stuck doing with the extension of time.  That would have still been an issue in that court, but then that court could have done it, but because my friend has discontinued and came here, the way the Act operates is, only the court to which the application is made can reach the relevant state of satisfaction.

Now, what we say, your Honour, is that all of that does not provide any adequate explanation for the long delay.  What it shows is that they made a decision on legal advice, or with at least legal assistance, but rather than take the student visa course to get to the Minister’s discretion, he is going to take the protection visa course to get to the Minister’s discretion.  It was entirely valid advice and it worked.  It worked in the sense that they got to the Minister’s discretion.  Another point to make is that there is no limit to the amount of times you can request the Minister to exercise that power.  So right now they could go to the Minister again and ask for the Minister to exercise his discretion.

HIS HONOUR:   Which discretion?  To exercise which discretion?

MR LLOYD:   Under section 417.

HIS HONOUR:   In respect of a protection visa application?

MR LLOYD:   No, that is completely open ended.  The Minister can grant a visa on any basis to do with anything, the same with section 351.  It is not to do with a protection visa.  He never claimed to be a refugee.  I mean, even in his protection visa application he said, “I am only doing it to get to the discretion.”  The story he wants to tell is how he was sick at the beginning ‑ ‑ ‑

HIS HONOUR:   Section 417 is linked to Part 7 of the RRT.

MR LLOYD:   It is linked in the sense that you can only get to it if you are refused by the RRT, but once you get there you can say anything you want.  You can say, “I have married somebody in Australia now.  Please let me stay.  I have got three children now because the process has taken so long.”  It does not have to be because the Minister takes a more generous view on refugee claims.  It can be for any reason whatsoever.

HIS HONOUR:   As to substitute?  He is substituting for a decision of the RRT.

MR LLOYD:   That is true, but he is not limited by the provision to anything the RRT could do.  He can grant any visa on any basis.  That is commonly the case.  Somebody gets married while they are here.  They cannot apply for a spouse visa because having been refused a protection visa, you cannot apply for any kind of visa, but if you are in that situation, what you ask is, “I have now married and I have got two children.  It is in the public interest to let me stay” and the Minister quite often says yes, if that is the process.  But my point is, both strategies, the student visa strategy and the protection visa strategy, was to get to the Minister’s discretion.  Both discretions are in identical terms.  They are completely open‑ended as to the kind of visas and the kind of matters that can be taken into account.

Right now they can do that, so there is no need, and it is completely lacking in utility, in my submission, for the Court to order mandamus for the student visa.  They accept they cannot get the student visa.  They only want it to get to the Minister’s discretion and they can already get to the Minister’s discretion.  The only thing that has any conceivable utility is the declaration that the cancellation was not effective.  In respect of that, we say that, as a discretionary matter, it is not a declaration as to right because the visa has long since expired in any event.  The sole purpose of the declaration is that it could be something attached to a request to the Minister which the Minister is not even bound to consider and we say that that does not constitute a declaration as to some immediate right or duty which is appropriate for a court to make in any event.

We say, in summary then, there is a lack of utility and appropriateness for the relief sought.  There is a very long delay, compared to the 35 days allowed by the Parliament, to challenge this and the delay, we say, is entirely inadequately explained.  What it shows is that upon legal advice they took a different course, an entirely plausible different course.

HIS HONOUR:   What do you say about the significance of the observations in Miah for this bifurcation of the procedures?

MR LLOYD:   Miah, in my submission, is an entirely different situation.  In Miah the situation was that the chap had applied for a protection visa and the Department had taken into account some adverse country information for refusing his protection visa application.  He had then been delayed beyond the 28 days, so he could not go to the RRT and as a result of which he could not get to the Minister’s discretion under 417, but what he could do is ask the Minister to extend time and his case was, “It was not fair that you took into account this adverse material and never gave me a chance to do it.  Can I instead – can you give me permission under section 48B to put in a fresh protection visa application?”  The three members of the court said, well, that was a plausible and acceptable alternative to challenging the proceedings straight away.  That is in a case where what he ultimately wanted was his substantive protection visa claims or have a chance to respond to his substantive protection visa claims.

In this case that he wanted was, what the strategy was, to have access to the Minister’s discretion.  What he got through his alternative means was access to the Minister’s discretion.  He got all he could have got from the first measure by the second measure.  In Miah, Mr Miah could have got a protection visa.  In this case it is procedurally entirely different because he could never get the student visa.  He does not say he can get the student visa.  What he says is he wants to go to the Minister with a declaration that he was not cancelled, but that, in my submission, is different to Miah, because his alternative route was never designed to get the equivalent of a declaration that he was not cancelled, whereas what Miah did was his alternative route was designed to give him a chance to do what it is he missed out on.

In this case the plaintiff did not say, “My cancellation was invalid and I want to be able to do this because my cancellation was invalid.”  It had nothing to do with the cancellation.  The whole cancellation issue only comes back at the end of and having lost after having access to the Minister’s discretion, and so we say that they are just chalk and cheese.  We are not saying that there is never a case, and obviously Miah stands against the proposition that there is never a case in which seeking the Minister’s discretion could be a justifiable explanation for a delay.  That is our first answer, but we just say this is not that kind of case because it is a very rare instance where all they wanted was the Minister’s discretion and they got it.

The second answer was, as I understand it in Miah, there was not a particularly long or significant delay, certainly not caused by Mr Miah, after the Minister’s discretion, whereas in this case the Minister answered on 7 July 2009 and still the present proceedings were not brought ‑ ‑ ‑

HIS HONOUR:   Where do we see the Minister’s refusal of discretion?

MR LLOYD:   I think it is page 170 of Mr Bitel’s exhibit.  To go through my friend’s list of matters, we say the delay is not adequately explained and that even if your Honour were to accept, contrary to the submissions I have just made, that the whole seeking of the protection visa application was an appropriate alternative route, there was still a lengthy delay of about nine months after that, lengthy compared to 35 days. 

As to prejudice, we say we are prejudiced by the delay because we are in a position whereby we have to rely upon these third party documents and recollections.  If it was brought within 35 days, or shortly thereafter, there might not be much prejudice but after two and a half years it is reasonable to assume that people will have forgotten things and although my friend says, well, we did not put on evidence as to all the searches that could have been done, their evidence is that our witness, the principal, was the one who was personally involved in the section 20 notice and his evidence is he had no recollection of that matter.  We say there is evidence of prejudice.

As to the merits, we say that even if your Honour were prepared to accept that they might have some prospect, if were remitted, for a court to make a factual conclusion that the letter was not sent, we say there is still strong evidence that it was sent.  In any event, the merits are not limited just to, as it were, the direct merits but they would include discretionary reasons and delay itself is a discretionary reason and it is conceivably possible that the matter upon remittal could still be refused on grounds of delay as a discretionary reason for refusing relief. 

Again, my friend relies upon public interest.  I am not entirely clear what the public interest is.  He asserts, other than the public interest, that the government should be constrained to act legally, but this is not a situation where there is any suggestion that my client is doing anything unlawful.  Even if the cancellation was in fact invalid or not operative or did not take place, my client is not now proposing to do anything unlawful.  All it leads to, all it relates to, is whether or not they can make a second request to the Minister with a note saying that a court has found that the cancellation did not happen, query how relevant the cancellation was anyway, given that the plaintiff delayed four months after his visa expired, in any event. 

There is also a public interest in people bringing proceedings quickly.  We say that public interest is so strong it has been recognised in the delay principles itself and we say that that, in the circumstances of this case, overrides any effects on the plaintiff.  The plaintiff says he has a real possibility of suffering injustice.  The only injustice that he claims that he might suffer, barring the declaration, is in relation to a matter he cannot even compel the Minister to consider he would like to have a declaration that a cancellation which has no present relevance to his current status or lawfulness was not effective.  In relation to utility, we say there is no utility at all in the mandamus.  The only conceivable utility could be in the declaration and we say a declaration as to the status or effectiveness of ‑ ‑ ‑

HIS HONOUR:   Just looking at the draft, I will call it, the draft amended application to show cause, you have been directing attention to the declaration.

MR LLOYD:   Orders 2, 3 and 4 all relate to the student visa application which we say there is no utility because ‑ ‑ ‑

HIS HONOUR:   You say because it was out of time on any view of the matter because his earlier visa would have expired in the ordinary course 28 days before that?

MR LLOYD:   Or had expired.  Yes.  Or would have if not cancelled.

HIS HONOUR:   Yes.  If it had not been validly cancelled, it would have expired and he would still be too late in applying on 21 December.

MR LLOYD:   Yes.  I do not just say that.  Mr Bitel said it in his application.  He accepts he cannot get the visa.  He just wants to get to it to get to the Minister’s discretion.

HIS HONOUR:   I know.  I am just looking at the relief at the moment.  You are saying there is no hope of certiorari, no hope of mandamus in respect of the 21 September ‑ ‑ ‑

MR LLOYD:   We say prohibition injunction is just the same as mandamus in this context.

HIS HONOUR:   They seem to be the same, yes.

MR LLOYD:   That only leaves declaration.

HIS HONOUR:   The only remedy would be a declaration.

MR LLOYD:   Exactly.

HIS HONOUR:   Why would that not be of some – I do not know.  Would it be of some assistance to the application in reapproaching the Minister and say ‑ ‑ ‑

MR LLOYD:   We say it is not a declaration as to right or status.

HIS HONOUR:   ‑ ‑ ‑ all my troubles spring from the fact that it was cancelled when it should not have been, whereas the other side of the coin is all your troubles spring from your failure to move after the expiry in May?

MR LLOYD:   Or before the expiry in May.

HIS HONOUR:   Or before the expiry in May.

MR LLOYD:   If he had have moved before the expiry in May and the cancellation was actually the thing preventing him, I obviously could not say it, but that is not the case.  The cancellation, even if it is annulled, does not affect anything.  He still cannot succeed on his student visa application.  The sole purpose of it is to be included in a bundle to the Minister which the Minister is under no duty to consider.  We say it is not really a declaration as to an immediate right or duty or liability. It is a judicial opinion as to whether or not something was sent some period ago in relation to a visa, which on any view has expired, the expiration of which would be equally critical and putting him in the position that he is now that he is an unlawful non‑citizen.  Actually, he not an unlawful non‑citizen now because he has a bridging visa, but in the substantive position that he cannot get a substantive visa unless the Minister exercises a personal discretion.  Unless your Honour has any questions.

HIS HONOUR:   Thank you, Mr Lloyd.  Yes, Mr Karp.

MR KARP:   Your Honour, my friend has pointed to a number of issues of delay within the procedures which have been undertaken by my client.  I cannot dispute that those delays did occur.  What I do say is that they are not in themselves disqualifying and that the advantage to my client of obtaining orders from the Federal Magistrates Court that the section 20 notice was not sent are of some utility in going to the Minister. 

My friend attacked the relief, or parts of the relief, claimed in the amended application.  In my submission, the writ of certiorari claimed is of advantage to my client in that it would permit the MRT to hear the case and have it determined.  Having a section 351 application made on the basis of a refused student visa is much more directly relevant to the kind of visa which my client would wish to have than is an application under section 417 for the refusal of a protection visa.  In my submission, there is demonstrably a connection between the failure ‑ ‑ ‑

HIS HONOUR:   Why would certiorari go?  Assume you are right, that there had not been a cancellation so that, in respect of the September 2007 application, 48 did not bite, but nevertheless, it was also out of time because of the delay from expiry in ordinary course.  So once that was explained, what would be the utility in certiorari?

MR KARP:   The utility of certiorari combined with mandamus would be to permit the matter to be appealed or ensure the Minister made a decision which could then be taken to the MRT and an application under section 351 from the MRT is much more relevant to the type of visa which my client wished to have than an application for the same visa made in a request under section 417.  In my submission, your Honour, it all ties in. 

There is one other issue which I wish to address and that is, my friend stated that the notice given to my client in November 2007 was clearly flawed, which it was.  Unfortunately, nobody, not my instructing solicitors nor my friend’s instructing solicitors, noticed this until the matter was brought back to the court shortly beforehand last year, so this bypassed pretty much everybody and there was not, clearly, an investigation of the merits of taking the matter to a court in 2007 because my client said to Mr Bitel that he could not afford to take it to court, and that is not inconsistent with the instructions which my friend pointed out he gave to Mr Turner of Mr Bitel’s office which is at page 61 of Mr Bitel’s exhibits.  Your Honour, unless I can further assist, those are my submissions.

HIS HONOUR:   Yes, thank you.  Is there anything you want to say?  I do not think so, actually.  I thank counsel for their assistance and I will consider my decision in this matter.  I will now adjourn.

AT 11.42 AM THE MATTER WAS ADJOURNED