Al-Dmour v Minister for Immigration and Border Protection & Ors

[2018] HCATrans 205

[2018] HCATrans 205

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S98 of 2018

B e t w e e n -

MOHAMMAD MAJED NAYF AL‑DMOUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 4 OCTOBER 2018, AT 2.01 PM

Copyright in the High Court of Australia

MR M.M.N. AL‑DMOUR appeared in person.

MR G.J. JOHNSON:   May it please the Court, I appear for the first defendant Minister.  (instructed by Australian Government Solicitor)

MAY DABLIZ, affirmed as interpreter:

HER HONOUR:   Yes, Mr Al‑Dmour, when this matter was before the Court last week it appeared that you had not received a copy of the Minister’s submissions.  I understand you have been supplied with a copy of those submissions?

MR AL-DMOUR:   Yes, your Honour.

HER HONOUR:   You understand that the Minister is seeking to have me dismiss your application?

MR AL-DMOUR:   Yes, your Honour.

HER HONOUR:   In support of your application do you rely on the affidavit that you affirmed on 6 April of this year?

MR AL-DMOUR:   Yes, your Honour.

HER HONOUR:   Is there anything, Mr Al‑Dmour, that you want to put to me in addition to the material that you set out in your application as the grounds on which you claim relief from this Court?

MR AL-DMOUR:   No. your Honour.

HER HONOUR:   Yes.  Mr Johnson.

MR JOHNSON:   Your Honour, the plaintiff seeks a variety of relief in this Court in relation to both an administrative decision and a decision of the Federal Court.  He seeks certiorari in relation to the decision of the Federal Court and he seeks an extension of time, in effect, to challenge the Tribunal’s decision in this Court despite having benefited from judicial review of that decision of the Administrative Appeals Tribunal.

HER HONOUR:   Yes.

MR JOHNSON:   He also seeks leave to make an application for special leave against the Federal Court’s decision, notwithstanding the provisions of the Federal Court Act that would prevent him from doing so.

HER HONOUR: In that respect, there is a challenge to the validity of section 33(4B) of the Federal Court of Australia Act.

MR JOHNSON:   Correct.

HER HONOUR: The basis for that would seem to be the suggestion that section 33(4B) does not in terms describe itself as being an exception. The challenge does not otherwise come to terms with the analysis of this Court in Cockle v Isaksen.

MR JOHNSON:   Yes.  The Parliament certainly has power to create exceptions and, in my submission, whilst the provision is not expressly phrased in that way it is, on a fair analysis, capable of that characterisation.

HER HONOUR:   Perhaps for present purposes, more to the point, Mr Johnson, your contention is that I am not precluded from determining the matter by section 78 of the Judiciary Act in circumstances in which the point that is taken is not supported by some arguable basis of challenge to the provision.

MR JOHNSON:   Yes.

HER HONOUR:   Yes.  Mr Johnson, I think I queried, last week when the matter was before me, I had two sets of submissions from the Minister.

MR JOHNSON:   Yes.

HER HONOUR:   As I understand it, there is really little difference between them but the submissions that I am to proceed on are those filed on 24 September.

MR JOHNSON:   Yes, your Honour.

HER HONOUR:   Yes.  Well, Mr Johnson, I think I have absorbed those.  I might just take up a couple of matters with Mr Al‑Dmour.

MR JOHNSON:   As the Court pleases.

HER HONOUR:   Mr Al‑Dmour, you understand from the submissions that the Minister filed – I think you may have a copy of them there, do you?

MR AL-DMOUR:   Yes, your Honour.

HER HONOUR:   You understand that the Minister is inviting me to dismiss your application because, to the extent that you seek to challenge the decision in the Federal Court not to grant you leave to appeal from the Federal Circuit Court, the Minister contends that you have not established any basis in law to challenge the Federal Court’s decision because the Federal Court judge was acting within his jurisdiction in determining not to grant you leave to appeal.

One of the things you raise in your application is a suggestion that the provision of the Federal Court Act that prevents you appealing from the Federal Court to this Court against a refusal to grant leave to appeal to the Federal Court you assert is invalid under the Constitution. The Constitution in providing a right of appeal to this Court makes that right subject to such exceptions and such regulations as the Parliament may prescribe and the Minister says section 33(4B) of the Federal Court of Australia Act is plainly an exception.  Is there anything further you wish to put to me about either of those matters?

MR AL-DMOUR (through interpreter):   No, your Honour, thank you.

HER HONOUR:   Finally, Mr Al‑Dmour, you also seek to challenge the decision of the Administrative Appeals Tribunal and the Minister says I should not deal with that challenge because you have had the opportunity to have the decision of the Administrative Appeals Tribunal reviewed by the Federal Circuit Court.  Is there anything further you wish to put about that matter?

MR AL-DMOUR (through interpreter):   No, thank you.

HER HONOUR:   Thank you, Mr Al‑Dmour, you may sit down.  Yes, I do not need to hear further.  Thank you for your submissions, Mr Johnson.

MR JOHNSON:   If the Court pleases.

HER HONOUR: This is an application for an order to show cause. It was filed on 6 April 2018. The plaintiff claims certiorari to quash orders made by Justice Wigney in the Federal Court of Australia on 13 March 2018 and, in the alternative, the plaintiff claims a declaration that section 33(4B) of the Federal Court of Australia Act 1976 (Cth) is invalid. There is an additional claim for certiorari to quash the decision of the Administrative Appeals Tribunal made on 31 January 2017 affirming the decision of the delegate of the Minister for Immigration and Border Protection (“the Minister”) refusing to grant the plaintiff a Temporary Partner visa. Submitting appearances have been filed by the Tribunal and the Federal Court of Australia.

The plaintiff appears personally and has been assisted by an interpreter in the Arabic language. The plaintiff relies on his affidavit affirmed on 6 April 2018, to which are annexed copies of the impugned decisions. He relies on the grounds set out in the show cause application for the relief that is claimed. The Minister submits that the application should be dismissed pursuant to rule 25.03.3(a) of the High Court Rules 2004 (Cth).

The background may be briefly stated.

The plaintiff arrived in Australia on 9 December 2010 as the holder of a student visa.  That visa expired on 29 September 2012.  Since that date the plaintiff has not held a substantive visa.  Shortly before the expiry of the student visa the plaintiff lodged an application for a protection visa.  That application was refused by a delegate of the Minister.  The Tribunal subsequently affirmed the delegate’s decision.

On 3 October 2013, the plaintiff married an Australian citizen. On 9 October 2013, just under a month after the Tribunal’s decision, to which reference has been made, the plaintiff applied for a Temporary Partner visa. As an applicant who was not the holder of a substantive visa at the time of his visa application the plaintiff was required to meet certain criteria under Schedule 3 to the Migration Regulations 1994 (Cth) unless the Minister was satisfied that there were “compelling” reasons for not applying those criteria.

Amongst the Schedule 3 criteria, criterion 3001 required the plaintiff to demonstrate that his application for the visa had been lodged within 28 days of the cessation of his last substantive visa. It is common ground that the plaintiff did not satisfy criterion 3001.

On 23 September 2014, a delegate of the Minister invited the plaintiff to provide any information or to make any submissions as to whether there were compelling reasons for the Minister not to apply criterion 3001. The plaintiff was also invited to provide further evidence concerning his relationship with Ms Britney Henman, the Australian citizen whom he had married on 3 October 2013. The plaintiff responded to the delegate’s invitation on 23 October 2014. On 22 January 2016, the delegate refused to grant the plaintiff the visa because the delegate was not satisfied that the plaintiff had identified compelling reasons not to apply the Schedule 3 criteria.

The plaintiff applied to the Tribunal to review the delegate’s decision. On 31 January 2017, the Tribunal found that the plaintiff did not meet criterion 3001 and it was not satisfied that there were compelling reasons not to apply the Schedule 3 criteria.

The plaintiff sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia (Judge Driver) on the unparticularised grounds that “the Tribunal made jurisdictional error”, “I did not get a fair hearing at the Tribunal”, and “the Tribunal identified the wrong issue”.  Judge Driver set the application down for hearing under rule 44.12(1)(a) of the Federal Circuit Rules 2001 (Cth) which provides that the court may dismiss an application for an order to show cause if it is not satisfied that the application has raised an arguable case for the relief claimed.  Judge Driver found that the plaintiff had not identified an arguable case of jurisdictional error on the Tribunal’s part and his Honour dismissed the application.  Such a dismissal is an interlocutory decision for which leave to appeal to the Federal Court of Australia is required.

The plaintiff applied for leave to appeal.  His draft grounds of appeal asserted that the Tribunal “failed to engage in an active intellectual process” and that it failed to consider certain documents that the plaintiff had submitted to the Department.  The latter asserted failure had not been raised as a ground of challenge before Judge Driver.

In dismissing the application for leave to appeal Justice Wigney observed that it was difficult to demonstrate that Judge Driver’s decision was attended by sufficient doubt to warrant its reconsideration on the strength of arguments that had not been advanced before the Federal Circuit Court.  Justice Wigney went on to observe that the more fundamental difficulty was that the proposed new ground was without merit.

In this Court the plaintiff claims relief with respect to the orders made by Justice Wigney on the basis that his Honour misapprehended or disregarded the nature of the jurisdiction conferred by section 24 of the Federal Court of Australia Act. Section 24 governs the appellate jurisdiction of the Federal Court. The plaintiff contends that Justice Wigney erred by treating the question of leave to appeal as though his Honour were conducting a final hearing on the merits and the plaintiff complains that Justice Wigney erred in finding that the proposed grounds of appeal were lacking in merit.

The contention that his Honour misapprehended or disregarded the limits of the jurisdiction conferred under section 24(1)(a) of the FCA Act proceeds upon a misconception. Justice Wigney approached the plaintiff’s application for leave to appeal consistently with the principles explained in Décor Corporation Pty Ltd v Dart Industries Inc[1].  The matters that his Honour took into account were relevant to the determination of whether leave should be granted.  There is no reason to question Justice Wigney’s assessment of the merits of the proposed grounds and in any event any error in this respect would be within jurisdiction.

[1] (1991) 33 FCR 397 at 398-400.

Notices under section 78B of the Judiciary Act 1903 (Cth) have not been served on the Attorneys‑General of the Commonwealth and the States with respect to the ground that seeks to challenge the validity of section 33(4B)(a) of the FCA Act. The Minister submits, and I accept, that the duty not to proceed is not here engaged. The mere fact that a party asserts a matter arises under the Constitution or involves its interpretation does not make it so. Nor is the duty engaged where the purported challenge is unarguable.

Section 33(4B) relevantly states that an appeal must not be brought to the High Court from a judgment of the Federal Court in the exercise of its appellate jurisdiction if the judgment is a determination of an application of the kind mentioned in subsection 25(2). Subsection 25(2) is concerned with applications for leave or special leave to appeal to the Federal Court, extensions of time within which to institute appeals, leave to amend grounds of appeal or to stay an order of the Full Court.

Section 73 of the Constitution provides that this Court shall have jurisdiction with such exceptions and subject to such regulations as the Parliament prescribes to hear and determine appeals from, relevantly, any other Federal Court. The sole contention advanced in support of the challenge to section 33(4B) is the assertion that the provision is not in terms expressed to be an exception. Section 33(4B)(a) creates a narrow exception with respect to appeals to this Court from the determination of interlocutory applications of the kind mentioned in section 25(2). In my opinion, it cannot be said to destroy this Court’s general jurisdiction to hear appeals from the Federal Court of Australia[2]. 

[2]  Cockle v Isaksen (1957) 99 CLR 156 at 165, per Dixon CJ and McTiernan and Kitto JJ.

No arguable basis for the declaratory relief claimed with respect to section 33(4B) of the FCA Act is established. Moreover, the plaintiff has not identified any error in Justice Wigney’s reasons, as the Minister submits, that would justify a grant of special leave to appeal.

The plaintiff asserts that the Tribunal’s decision is “infected with jurisdictional error” and that he has not had the opportunity to have that assertion determined at a trial following the proper procedures.  In refusing leave to appeal Justice Wigney considered that Judge Driver was plainly correct in finding that the Tribunal had complied with the obligation of procedural fairness and that the plaintiff had not raised an arguable case of jurisdictional error.

To permit the plaintiff, following his unsuccessful application for judicial review before the Federal Circuit Court, to simply start again in the original jurisdiction of this Court without more is tantamount to an abuse of process[3].  For these reasons there will be the following order:  application dismissed with costs.

[3]  Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at [13] and [14].

Adjourn the Court, please.

AT 2.36 PM THE MATTER WAS CONCLUDED