Bandi v Minister for Immigration and Border Protection & Anor

[2015] HCATrans 53

[2015] HCATrans 053

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A28 of 2014

B e t w e e n -

SUZUKI BANDI

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 12 MARCH 2015, AT 9.30 AM

Copyright in the High Court of Australia

MR P.H. D’ASSUMPCAO:   May it please the Court, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr D’Assumpcao.  Perhaps we might have the matter called outside, please, Madam Registrar, just to make sure.

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Thank you.  Mr D’Assumpcao, I have read the papers and your outline of submissions for which I thank you.  Is there anything that you wish to add or which you think I ought to know in addition to what is there already?

MR D’ASSUMPCAO:   Nothing to add if your Honour is satisfied with the matters which the Minister has set out.  Given that the plaintiff is not here today, I could not identify in the limited time available a precise rule which would permit your Honour to dismiss the proceeding, if your Honour is so minded, in the absence of a party, but I would submit that the Court has an inherent power to protect its own processes and this is an application which obviously the plaintiff needs to prosecute and he ought to have been aware of today’s hearing, and the appropriate order, in my respectful submission, is that the application for an order to show cause be dismissed with costs.  If the Court pleases.

HIS HONOUR:   This is an application for an order to show cause.  The plaintiff, however, has not appeared to prosecute the application, despite the fact that he has been notified by the Registry of the time and place of hearing.  I propose, therefore, to deal with the application in his absence.  In substance, the plaintiff seeks three orders.  First, a writ of mandamus to issue to the Minister for Immigration and Border Protection, although it is not clear what the plaintiff would have the Minister compelled to do.  Secondly, a writ of certiorari to quash a decision of the Federal Court made on 27 November 2014.  Thirdly, a mandamus to compel the Minister to exercise his power under section 351 of the Migration Act to substitute a decision more favourable to the plaintiff for the decision of the Migration Review Tribunal made on 28 November 2014.

In brief substance, the facts of the matter are as follows.  On 17 October 2011, the plaintiff was granted a Student (Temporary) (Class TU) Subclass 572 Vocational and Training Sector visa.  On 29 October 2012, the Minister’s delegate determined to cancel the visa under section 116(3) of the Migration Act on the ground that the applicant had breached condition 8202(3) of the visa, namely, that he remain enrolled in a registered course of study.

On 28 January 2014, the Tribunal affirmed the delegate’s decision. In its reasons for decision, the Tribunal identified the issue before it as whether the applicant as the holder of a student visa had breached condition 8202 of Schedule 8 to the Migration Regulations 1994 in that he had ceased to be enrolled in a registered course of study.

The Tribunal found, and indeed on the papers it appears no longer to be disputed, that the applicant had indeed breached the condition.  Instead of attending to the registered course of hospitality management in which he had been enrolled, he had absented himself in order to work as a chef in an Indian restaurant and his education provider after repeated warnings had, therefore, expelled him from the course.

The Tribunal rejected the applicant’s explanation for the breach of condition, namely, that he had been assured by his education provider that working in the restaurant would count as part of the registered course work.  It does not now appear to be disputed on the papers that there was, indeed, any substance in his explanation.  The Tribunal accepted that cancellation of the visa would be productive of hardship for the plaintiff but determined that the hardship was outweighed by the gravity of the breach of condition.  On that basis, as I have said, the Tribunal affirmed the delegate’s decision.

On 7 March 2014, the applicant filed an application in the Federal Circuit Court seeking judicial review of the Tribunal’s decision.  The application was, however, filed late and it was necessary, therefore, for the plaintiff to seek an order extending time.  On 26 June 2014, the Federal Court published its decision in which it refused – do come in.

MR S. BANDI appeared in person.

HIS HONOUR:   Are you Mr Bandi?

MR BANDI:   Yes, sir.

HIS HONOUR:   You are late, why?

MR BANDI:   Sir…..no parking…..

HIS HONOUR:   Well, this is a court, not a department store, Mr Bandi.  We have begun in your absence.

MR BANDI:   …..

HIS HONOUR:   Very well.  I withdraw what I have said already.  Mr Bandi, I have read the papers.  I have read the affidavit that you most recently filed and each of the three decisions below, namely, the decision of the delegate, the decision of the Review Tribunal and the decision of the Federal Circuit Court, and I have also looked at the reasons for judgment of Mr Justice Besanko when he rejected your appeal as incompetent, and I have read also the outline of submission that has been filed on behalf of the Minister in this Court.

As at present advised, I incline to the view that your application ought fail, but I remain open to persuasion and therefore to listen to anything in addition to what you have already put in writing which you may wish to say to me now.  Do you understand?  Is there something that you wish to add?

MR BANDI:   …..I just followed…..problem…..management, sir.

HIS HONOUR:   Are you saying to me that you followed the teacher’s direction in working for the restaurant rather than attending at the management course?

MR BANDI:   Attending classes and following ‑ the teacher told me to take that training and I am doing that myself.

HIS HONOUR:   Mr Bandi, what you are seeking from this Court is relief by way of prerogative or constitutional writ to quash the decision of Mr Justice Besanko and also to compel the Minister, I suppose, to make a decision favourable to you.  Because this is an application for prerogative or constitutional writ, it is not a matter of me deciding the merits whether it is fair enough or not that you should be allowed to stay.  I have no power to do so, even if I wished to.  The question is whether you have demonstrated or it is demonstrated that there has been a particular kind of error of law which would warrant the grant of prerogative relief. 

Now, I have before me the reasons for decision of the Review Tribunal in which the Tribunal found that your explanation for not attending at the management course was unacceptable, they did not believe you, they rejected your evidence in light of the evidence that the education provider, your teachers, had warned you repeatedly that if you continued to absent yourself you would be expelled. 

MR BANDI:   It is not true, sir.  The college management ‑ ‑ ‑

HIS HONOUR:   Well, it may not be true but the fact of the matter is that decision was made and made for the reasons set out in the reasons published by the Tribunal.  You then sought judicial review of that decision, as you were entitled to do, by the Federal Circuit Court, but you were late in seeking that relief.  You therefore had to seek an extension of time, do you recall that?

MR BANDI:   …..

HIS HONOUR:   Do you recall having to seek an extension of time?

MR BANDI:   I was late for that application because a man told me that I got some more time.

HIS HONOUR:   That is all right.  The Federal Court refused you an extension of time because they found there was no error in what the Tribunal had done and therefore it was pointless to extend time.  You then sought to appeal from the decision of the Federal Circuit Court to the Federal Court but your appeal was incompetent because the Act says you may not appeal from such a decision to the Federal Court.

Now, if you are going to get anywhere here you have got to show that there was what is called a jurisdictional error, either in the decision of the Federal Circuit Court or in the decision of the Review Tribunal.  On the papers, having listened to what you have said and having read what you have written, I cannot see any jurisdictional error.  You may disagree with the decision, but on the papers the decision has been reached properly in accordance with proper processes of law after the Tribunal listened to your evidence and rejected it because they preferred the evidence of the education provider.  You have got to show that they went wrong as a matter of law in coming to that conclusion, not just that you disagree with it, but they went about it in the wrong or in an improper way.

MR BANDI:   Sir, the only evidence I got is ‑ ‑ ‑

HIS HONOUR:   You must speak more clearly; I cannot hear you, please.

MR BANDI:   Only evidence I got is my teacher said, but teacher is not working any more at the same college now.

HIS HONOUR:   I am sorry, would you repeat that please.

MR BANDI:   Only evidence is my teacher only, sir.  I ask my teacher, he said he will be back in two months and he just moved from here to Sydney college, sir.

HIS HONOUR:   Do you understand that the Tribunal rejected that evidence?  They did not believe you.

MR BANDI:   …..a college mistake, sir, it is not my mistake.  I followed what the teacher told me to do.

HIS HONOUR:   Very well.  So, Mr Bandi, the basis of your claim here today is that, what, the Tribunal was wrong to reject your evidence that you were told by your teacher that working in the restaurant would count as part of the course?

MR BANDI:   What, sir?

HIS HONOUR:   Is the basis on which you make your application to me today that the Tribunal was wrong to not believe your evidence that you were told by your teacher that working in the restaurant would count as part of the course?

MR BANDI:   The Tribunal – they just took the documents from the college and they just – college gave the wrong documents to the MRT, sir – the Tribunal.

HIS HONOUR:   So therefore you say that the Tribunal was wrong to accept the teacher’s evidence?

MR BANDI:   They…..the teacher’s evidence.

HIS HONOUR:   I am sorry, to accept the teacher’s documents.

MR BANDI:   A teacher…..evidence for me.  I tried to bring the teacher but they did not – they did not told me to bring the teacher to MRT.

HIS HONOUR:   Are you saying that the Tribunal told you to call the teacher to give evidence?

MR BANDI:   No, sir.  They did not told me to bring the teacher to the Tribunal.

HIS HONOUR:   They told you what?  I am sorry, Mr Bandi, they told you what?

MR BANDI:   The Tribunal – when I am having my Tribunal hearing they did not told me to bring teacher to the hearing for evidence.

HIS HONOUR:   I see.

MR BANDI:   They just took the college documents and they did, sir.

HIS HONOUR:   So your complaint is that the Tribunal did not warn you of the need to call the teacher?

MR BANDI:   They did not told me to bring teacher.

HIS HONOUR:   Yes, thank you.  Is there anything else that you would like to say, Mr Bandi?

MR BANDI:   Whatever the college is showing is wrong, sir.  I just followed what teacher told me to do, sir.

HIS HONOUR:   I understand that.  Anything else that you wish to say?

MR BANDI:   Only that the teacher is my evidence, sir, nothing else is there.

HIS HONOUR:   Thank you.  You may have a seat.  I need not call on you, Mr D’Assumpcao.

MR D’ASSUMPCAO:   Thank you, your Honour.

HIS HONOUR:   This is an application for an order to show cause.  In substance, the plaintiff seeks three orders.  First, a writ of mandamus to issue to the Minister for Immigration and Border Protection; it is not clear what the applicant would have the Minister compelled to do.  Secondly, a writ of certiorari to quash a decision of the Federal Court made on 27 November 2014.  Thirdly, mandamus to compel the Minister to exercise his power under section 351 of the Migration Act to substitute a decision more favourable to the applicant for the decision of the Migration Review Tribunal made on 28 January 2014.

In brief, the facts of the matter are as follows.  On 17 October 2011, the plaintiff was granted a Student (Temporary) (Class TU) Subclass 572 Vocational and Training Sector visa.  On 29 October 2012, the delegate of the Minister for Immigration and Border Protection determined to cancel the visa under section 116(3) of the Migration Act on the ground that the plaintiff had breached condition 8202(3) of the visa, namely, that he remain enrolled in a registered course of study.

On 28 January 2014, the Migration Review Tribunal affirmed the delegate’s decision. In the reasons for decision of the Migration Review Tribunal, the Tribunal identified the issue before it as being whether the applicant as the holder of a student visa had breached condition 8202 of Schedule 8 to the Migration Regulations 1994 in that he had ceased to be enrolled in a registered course of study.

The Tribunal found that the applicant had breached the condition because, instead of attending to the registered course of hospitality management in which he had been enrolled, he had absented himself in order to work in an Indian restaurant and his education provider, after repeated warnings, had, therefore, expelled him from the course.

The Tribunal rejected the plaintiff’s explanation for the breach, that he had been assured by his teacher that working in the restaurant would count as part of the course.  The Tribunal was satisfied from the documentary evidence which was in evidence that the education provider had issued repeated warnings to the plaintiff concerning his failure to attend to the course and, despite those warnings, the plaintiff had continued to absent himself from studies.

The Tribunal considered and accepted that cancellation of the plaintiff’s visa would cause him hardship, but the Tribunal concluded that such degree of hardship was outweighed by the gravity of the plaintiff’s breach of condition in repeatedly failing to attend to the warnings of his teacher.  On that basis, as I say, the Tribunal affirmed the delegate’s decision.

On 7 March 2014, the plaintiff filed an application in the Federal Circuit Court seeking judicial review of the Tribunal’s decision.  The application was, however, filed out of time and it was necessary for the plaintiff to seek an order extending time for the filing of the application.

On 26 June 2014, the Federal Circuit Court made an order under section 477(2) refusing to extend time.  In coming to that decision, the Federal Circuit Court undertook a detailed consideration of whether the Tribunal had committed any reviewable error of law and determined that it had not.

On that basis, the Federal Circuit Court found that the application for judicial review was hopeless and, therefore, it was pointless to extend time for its filing.

From that judgment the plaintiff appealed to the Federal Court, but on 27 November 2014 Justice Besanko dismissed the appeal as incompetent, as it surely was, under section 476A(3).

In his oral submissions this morning, the plaintiff has put his application to this Court on the bases that the Tribunal did not warn him of the need to call his teacher to give evidence in support of the plaintiff’s claim that the plaintiff had been repeatedly assured by his teacher that working in the Indian restaurant would count as part of the registered course of study, and the Tribunal erred in rejecting the plaintiff’s evidence that the plaintiff followed exactly what the college told him to do.

As I have endeavoured to explain to the plaintiff in the course of argument, this is an application for prerogative or constitutional writ in which it is necessary for the plaintiff to demonstrate jurisdictional error in one or other of the tribunals whose decisions he seeks to be reviewed.  It is not sufficient for him to contest, or even necessary to demonstrate, that the findings of the Review Tribunal were incorrect.  It is necessary for him to show the Tribunal has committed some error of law or procedure of such gravity that it should be regarded as a jurisdictional error warranting the grant of prerogative relief.  That, in my view, he has plainly failed to do.

In the result, it is clear that the application for relief must be dismissed.

The application for mandamus to go to the Minister is incompetent because the Minister’s decision has been affirmed by the Migration Review Tribunal.  If it were of any utility, I would allow the plaintiff to amend his application to seek that mandamus go to the Review Tribunal, but that would be inutile because, as the Federal Circuit Court determined, there is no reason to doubt that the Tribunal properly discharged its functions according to law.

The application for certiorari to go to the Federal Court is incompetent, not least but not only for the reason that the applicant’s appeal to the Federal Court was barred by section 476A(3).

The application for mandamus to go to the Minister to compel him to substitute a decision more favourable to the plaintiff than the decision of the Tribunal is, I am afraid, hopeless, because by reason of section 351(7) the Minister is not under a duty to exercise the power conferred on him by the section.  See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at 461 [48] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ, 474 [100] per Gaudron and Kirby JJ.

In the result, the application is dismissed.  The Court will now adjourn sine die.

AT 9.56 AM THE MATTER WAS CONCLUDED