Al Mamun v Minister for Immigration and Citizenship and Anor

[2012] HCATrans 265

[2012] HCATrans 265

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M86 of 2012

B e t w e e n -

ABDULLAH AL MAMUN

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 24 OCTOBER 2012, AT 9.44 AM

Copyright in the High Court of Australia

MR R. C. KNOWLES:   Your Honour, if it pleases the Court, I appear for the first defendant in that matter.  (instructed by Clayton Utz Lawyers)

HER HONOUR:   Yes, thank you, Mr Knowles.  Have the matter called outside.

COURT CLERK:   No appearance, your Honour.

HER HONOUR:   Thank you.  Yes, Mr Knowles.

MR KNOWLES:   Yes, your Honour.  As with the last matter in this case, the first defendant has also filed a summons – this one dated 12 October 2012 – and I seek to move on that summons.  The summons is supported by an affidavit of Ms Natasha Bosnjak dated 11 October 2012 and in respect of the summons and the affidavit, there is an affidavit of service that I would seek to hand up to your Honour.  That is the affidavit of service of Ms Melinda Joan Cutts dated 22 October 2012. 

HER HONOUR:   Thank you.

MR KNOWLES:   Thank you, your Honour.  In this case, as with the last case, my instructing solicitors were sent a medical certificate yesterday.  On this occasion there was no covering letter, it was simply a medical certificate by itself.  The medical certificate provided very little detail as to what the condition was that the plaintiff was suffering from.  In fact, all that the medical certificate stated was that the plaintiff is suffering from a medical condition and for the period from Tuesday, 23 October 2012 to Wednesday, 24 October 2012 inclusive he is unfit to attend the Court.  Obviously, the medical certificate does not provide any details about what the medical condition actually is and how that medical condition may affect the plaintiff’s ability to actually attend Court.

So, on that basis, correspondence was couriered to the plaintiff’s address yesterday and I understand that a copy of that correspondence has been provided to the Court. The correspondence indicated to the plaintiff that the Minister would oppose any request for an adjournment and if the plaintiff did not attend the Court today, he risked having the matter dismissed in his absence. It is, in my submission, appropriate that this matter proceed despite the lack of any appearance by the plaintiff and, in that regard, it ought to proceed pursuant to rule 13.03 of the High Court Rules.

If the matter does proceed and your Honour is to hear and determine the application, it is submitted that the application for an order to show cause filed by the plaintiff in this Court should be dismissed simply because, having regard to particularly recent authority of this Court, the application is without merit.  It does not present any arguable case.  Your Honour will have seen, I take it, the first defendant’s outline of submissions which has been filed.

HER HONOUR:   Yes, I have read that, thank you.

MR KNOWLES:   Thank you, your Honour. Your Honour will therefore be aware that essentially what the plaintiff seeks in this case is judicial review of a decision by my client, the Minister for Immigration and Citizenship, not to exercise the power under section 351 of the Migration Act 1958. In terms of the actual ground that is advanced by the plaintiff, that is set out in the application for an order to show cause.

But in essence what is complained of is a purported failure to take into account all relevant considerations and it is said that the Minister failed to have regard to the applicant’s significant changes in personal circumstances in the political and social landscape in Bangladesh.  In a recent High Court decision of Plaintiff S10/2011 (2012) HCA 31 ‑ ‑ ‑

HER HONOUR:   I have read the passages extracted in your outline of submissions, thank you.

MR KNOWLES:   Yes, thank you for that indication, your Honour.  In those passages that are set out in the outline of submissions, what was made clear was that in what I would submit are very similar circumstances to the present case the Court found that there was no procedural fairness obligations that the Minister owed to the person requesting the exercise of the power, and in particular one of the aspects of that claim in respect of what those procedural fairness obligations might have encompassed was that there was no obligation to have regard to specific details of the applicants circumstances that might have been raised.

So, in essence, your Honour, the position advanced by my client in this case is that the plaintiff’s arguments are essentially on all fours with what was put by the plaintiffs in Plaintiff S10/2011 and in the circumstances this matter, as with those matters considered in that case, is bound to fail and for that reason the matter ought to be dismissed. In particular, I refer to section 25A of the Judiciary Act 1903 which provides that where there is no reasonable prospect of success the matter may be summarily dismissed.

That was all I wished to submit orally, your Honour.  Obviously there are some other details set out in the written submission, particularly in respect of whether or not any relief could have utility having regard to the non-compellable nature of the power and in particular ‑ ‑ ‑

HER HONOUR:   And the relief sought.

MR KNOWLES:   Yes, indeed.  In this case, obviously the relief sought includes the issue of a writ of mandamus and if the power is non-compellable, one does question how that relief could have any effect.  But, otherwise I rely on the written submissions.  Unless there is anything I can assist your Honour with further, I have nothing further to add in the way of oral submissions.

HER HONOUR:   Yes, thank you, Mr Knowles.  Thank you for your assistance.

This is the return of a summons filed on 12 October 2012 by the first defendant, the Minister for Immigration and Citizenship (“the Minister”), who, among other things, seeks orders dismissing the plaintiff’s application for an order to show cause on the ground that, following the decision of the Full Court of this Court in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 86 ALJR 1019; 290 ALR 616, the plaintiff cannot establish an arguable case necessary for the grant of the relief. That summons is supported by affidavit material including an affidavit of service.

The second defendant, the Migration Review Tribunal (“the Tribunal”), has filed a submitting appearance.  No material has been filed by the plaintiff in response to the defendant’s summons.  There was no appearance by the plaintiff today.  The Court has received a copy of a medical certificate by facsimile transmission.  It states that the plaintiff “is suffering from a medical condition and for the period from Tuesday, 23 October 2012 to Wednesday, 24 October 2012 inclusive, he is unfit to attend court”.  No particulars of his condition are provided.

No application for an adjournment of the hearing has been made. In any event, none would be granted because the application has no reasonable prospects of success. Further, rule 13.03 of the High Court Rules 2004 (Cth) permits dismissal upon satisfaction, which I have, that the defendant’s summons has been duly served.

On 30 August 2012, the plaintiff, a citizen of Bangladesh, filed an application for an order to show cause seeking constitutional writs and related relief in respect of a decision of the Minister dated 3 August 2012. The Minister had decided not to exercise his power under section 351 of the Migration Act 1958 (Cth) (“the Act”) to substitute for a decision of the Tribunal a decision more favourable to the plaintiff.

The history of this matter can be stated briefly.  On 15 November 2004, the plaintiff’s wife applied for a student visa.  The plaintiff was included in the application as a secondary applicant.  On 17 December 2004, a delegate of the Minister refused to grant student visas to the plaintiff and his wife.  The plaintiff’s wife unsuccessfully sought review of this decision.  The plaintiff and his wife then unsuccessfully applied for protection visas.  The plaintiff and his wife later divorced.  The plaintiff remained in Australia and his wife returned to Bangladesh.

On 10 February 2010, a delegate of the Minister “re-notified” the plaintiff of the decision dated 17 December 2004.  On 9 March 2010, the plaintiff applied to the Tribunal for a review of that decision.  In its decision dated 27 January 2011 and handed down on 28 January 2011, the Tribunal affirmed the delegate’s decision to refuse to grant student visas to the plaintiff and his former wife.  The plaintiff unsuccessfully sought review of this decision in the Federal Magistrates Court, the Federal Court and the High Court. 

By letter dated 13 April 2012, the plaintiff requested that the Minister exercise his power under section 351 of the Act to substitute for the decision of the Tribunal a decision more favourable to the plaintiff. On 3 August 2012, the plaintiff was informed that the Minister had decided not to exercise his power under section 351 of the Act.

By his application for an order to show cause and summons dated 30 August 2012, the plaintiff seeks an order quashing the Minister’s decision and related relief.  He does so on the ground that “the Minister has failed to take into account all relevant considerations, re the applicant’s significant changes in personal circumstances and the political and social landscape in Bangladesh which raise substantive issues”.

In the light of the decision of this Court in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 86 ALJR 1019; 290 ALR 616, the plaintiff’s application for an order to show cause, supporting affidavit, and outline of submissions do not disclose any arguable cause of action. In Plaintiff S10/2011, Justices Gummow, Hayne, Crennan and Bell said of section 351 that the provision had certain significant characteristics numbered (i)-(ix). After listing those, their Honours then concluded at paragraph [100]:

The cumulative significance of the matters referred to above in (i)-(ix) is to disclose a situation akin to that identified by Brennan J in [South Australia v O’Shea (1987) 163 CLR 378 at 410], namely where a senior official standing at the peak of the administration of the statute is not required to give an opportunity for a hearing in every case affecting an individual who has had an opportunity of a merits review in the course of the administrative process. Upon their proper construction and in their application to the present cases, the dispensing provisions are not conditioned on observance of the principles of procedural fairness. In particular, there was no requirement to provide to the plaintiffs the opportunities to be heard which they assert in their submissions. The use in the provisions of the Act in question here of language emphatic both of the distinctive nature of the powers conferred upon the Minister (as personal, non-compellable, “public interest” powers), and of the availability of access to the exercise of those powers only to persons who sought or could have sought, but have not established their right to, a visa is of determinative significance. It reveals the “necessary intendment” referred to in the Offshore Processing Case [(2010) 243 CLR 319] that the provisions are not attended by a requirement for the observance of procedural fairness.

Accordingly, the plaintiff’s application has no prospects of success.  I am satisfied that the maintenance of this proceeding is vexatious.  I order that the plaintiff’s application for an order to show cause dated 30 August 2012 be dismissed with costs.

MR KNOWLES:   If your Honour pleases.

HER HONOUR:   Adjourn the Court for the establishment of the video link to Adelaide.

AT 10.00 AM THE MATTER WAS CONCLUDED