Dhariwal & Anor v Minister for Immigration and Border Protection & Anor

[2015] HCATrans 307

[2015] HCATrans 307

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M199 of 2015

B e t w e e n -

JAGDEEP KAUR DHARIWAL

First Plaintiff

ISSHU BEHAL

Second Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 24 NOVEMBER 2015, AT 10.40 AM

Copyright in the High Court of Australia

MR R.C. KNOWLES:   Your Honour, I appear for the first defendant.  (instructed by Clayton Utz Lawyers)

SUNIL CHOPRA, affirmed as interpreter.

HER HONOUR:   You are the applicant in this matter?

MS DHARIWAL (through interpreter):   Yes.

HER HONOUR:   Ms Dhariwal, this is your application?

MS DHARIWAL (through interpreter):   Yes.

HER HONOUR:   You have received and read and understood, hopefully, the materials filed by the Minister?

MS DHARIWAL (through interpreter):   Yes.

HER HONOUR:   Thank you.  Are there things that you wish to say to me about your application?

MS DHARIWAL (through interpreter):   Yes.  I want to say that we did not apply for the TR and we are the victims of crime.  And…..Singh of S & S had applied for TR on our behalf and we had given our documents to him for the work visa.  Then we got a letter from the Immigration and we came to know that our TR has been rejected.  Then we applied for MRT.  And for that they did not give us the time to submit the documents, the study documents and they gave the decision.  And here are our study documents.

We just want to say that our case be sent back to the MRT and the time be given to us so that we can submit our documents for that.  We did not have – we were not at fault for this – for TR.  Also, secondly, we came here for the studies.  We did not come here to spoil our future.  Mine and…..future has been spoiled because of the decision of the MRT, therefore which they did not give us the time.  That is all.

HER HONOUR:   Anything else you wish to say to me?

MS DHARIWAL (through interpreter):   I just want to make a request that we should be given time and one chance so that whatever has happened

with us we could rectify it and our case be sent back to MRT so that we can continue our studies so that mine and…..future is not spoilt.

HER HONOUR:   All right.  Mr Knowles is here this morning and he appears for the Minister.  Mr Knowles will now explain to me his view on the matter, and I suspect why he thinks your application should be dismissed.  He will speak slowly and the interpreter will interpret what Mr Knowles is going to say.  I find it useful to write down the things that I would like to say in response as Mr Knowles is speaking and then the interpreter will interpret them for me.  You will tell him and he will tell me what it is you want to say in response to what Mr Knowles says.  Do you have a pen - I will get one given to you.  There is a pad in front of you.  At the end of it you may say anything in response to what Mr Knowles says.  Do you have any questions?

MS DHARIWAL (through interpreter):   No.

HER HONOUR:   Mr Knowles.

MR KNOWLES:   Thank you, your Honour.  Your Honour should have the Minister’s outline of submissions dated 18 November this year as well as an affidavit of my instructor, Mr Hibbard, dated 11 November this year.  Could I take Mr Hibbard’s affidavit as read, your Honour?

HER HONOUR:   Yes.

MR KNOWLES:   Ms Dhariwal is the first plaintiff in this proceeding.  The second plaintiff is her husband.  They are both Indian citizens.  Ms Dhariwal’s husband did not make substantive claims to satisfy the criteria for the grant of a skilled visa.  Instead, he relied on his membership of her family.

THE INTERPRETER:   Sorry, I did not get it.  Can you please speak a bit louder?

MR KNOWLES:   Instead he relied upon his membership of her family.  Ms Dhariwal applied for a skilled visa and that application was refused by a delegate of the Minister.  She then applied to the Migration Review Tribunal, as it then was, and the Tribunal affirmed the delegate’s decision not to grant a skilled visa to Ms Dhariwal. 

The Tribunal’s decision is exhibited to Mr Hibbard’s affidavit at exhibit CEAH‑3 and in that decision at paragraph 9 reference is made by the Tribunal to the relevant criterion in issue. That criterion was set out in clause 485.213 in Schedule 2 to the Migration Regulations 1994. The criterion in that provision required the visa applicant to satisfy Australian study – what was known as the Australian study requirement in the six months immediately before the visa application was made. The term “Australian study requirement” was defined in regulation 1.15F of the regulations and is set out in paragraph 11 of the Tribunal’s decision. Relevantly, it requires a person to satisfy the Minister:

that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses –

that meet certain requirements.  As your Honour will see at paragraph 27 of the Tribunal’s reasons for its decision, it was conceded before the Tribunal that Ms Dhariwal had not:

completed her cookery or hospitality course in Australia.  There is no evidence before the Tribunal to indicate that the applicant completed any other degree, diploma or other trade qualification in the six month period ending immediately before the application –

for the visa was lodged. 

HER HONOUR:   What do we do about the next sentence?

MR KNOWLES: Certainly what that shows, your Honour, is that the Tribunal took into account the evidence that they had been defrauded by their migration agent and had “sympathy for their situation”, but went on to find that it did not have discretion to waive or extend the six month requirement imposed under clause 485.213. Then one finds the Tribunal’s conclusion at paragraphs 28 to 29, your Honour. In essence, irrespective of what was said in relation to the conduct of the migration agent, the visa criterion could not be met and on that basis the Tribunal found that it was obliged to affirm the decision to refuse to grant the skilled visa.

The plaintiffs applied to the Federal Circuit Court for an extension of time in which to seek judicial review of the Tribunal’s decision.  When the matter came before that court for hearing the plaintiffs did not appear and the court dismissed the extension of time application on the basis of that non‑appearance.  The Federal Circuit Court found that there was no explanation for the failure to appear and, in any event, the substantive arguments in support of the application for judicial review were without merit.

The plaintiffs then applied to the Federal Circuit Court to set aside that order and at this time the court refused to set aside the previous order and in doing so found that the substantive arguments advanced in the judicial review application had no prospects of success.  There was then an application to the Federal Court for leave to appeal from this later order of the Federal Circuit Court refusing to set aside the earlier order of that court.

HER HONOUR:   I thought the application was in relation to both the order of Judge Vasta and the order of Judge Burchardt.

MR KNOWLES:   I apologise, your Honour.  I stand corrected in that regard.

HER HONOUR:   Justice Pagone concluded that there was no appeal to the Federal Court.

MR KNOWLES:   That was part of it.  Yes, your Honour.  That is so.  It was not available to seek an appeal on the basis of the extension of time application; that is so.  That is by reason of the section 477(2) – sorry, I will have to check the provision.

HER HONOUR:   Section 476A(3), is it not?

MR KNOWLES:   Section 476A(3), thank you, your Honour, yes.  The outcome was that the Federal Court refused to grant leave to appeal and in doing so found that there was no error that attended the Federal Circuit Court’s decision in respect of the latter order.

In the application before this Court the plaintiffs seek a writ of prohibition preventing the Minister from relying upon the decision of the Tribunal.  They also seek a writ of certiorari quashing that decision and a writ of mandamus remitting the matter to the Administrative Appeals Tribunal for determination according to law.  The relief is all directed to the second respondent, whether it be in its former incarnation as the Migration Review Tribunal ‑ ‑ ‑

THE INTERPRETER:   Sorry, I did not get it, can you please repeat it?

MR KNOWLES:   The relief is all directed to the second defendant – it is described as the second respondent in parts in the application – but the second defendant, which is now the Administrative Appeals Tribunal.  That was the Migration Review Tribunal at the time of making the relevant decision.

As is necessary, given the time that has elapsed, the plaintiffs also seek an extension of time in which to bring the application.  The grounds – there is only a single ground in the application – although it is stated as directed to the Federal Court, that does not tally up with obviously the relief that is necessarily sought. 

The particulars to the ground though are, in essence, that the claims about fraud and incompetence on the part of the migration agent were not taken into account by the court.  The argument relating to the migration agent was taken into account by the Tribunal, the Federal Circuit Court and the Federal Court but, in essence, at each stage it was held that the argument did not bear upon the validity of the decision not to grant a skilled visa to the first plaintiff.

In particular, in the decision of the Federal Court, which is found at exhibit CEAH‑9 to Mr Hibbard’s affidavit, your Honour will see the court’s reasoning at paragraph 6 and 7, and on page 5, Justice Pagone stated at the top of that page:

The application for visas required the applicants to satisfy the Australian study requirement, to have competent English skills within the meaning of the regulation, to have obtained a suitable skills assessment, and to have met the public interest criterion health assessment.  There was no material about any of those matters before Judge Burchardt at the hearing on 16 March 2015, or before Judge Vasta in the application determined on 16 January 2015, or the Migration Review Tribunal in its hearing decided on 21 February 2013.  In those circumstances there is no prospect that the application has any prospects of success or that there is any point in allowing leave to appeal –

I note at this juncture, your Honour, that the matters referred to at the start of the passage I have just quoted are cumulative in terms of the visa criteria stated there.  As your Honour will recall from the Tribunal’s decision, the Tribunal itself only dealt with the Australian study requirement criterion.  That was the basis ‑ although there was evidence relating to an inability to perhaps satisfy other criteria – that was the basis for the Tribunal’s decision.  Returning to the reasons for judgment of the Federal Court, at paragraph 7 Justice Pagone stated that:

The applicants submitted orally at the hearing of their application that their migration agent had wrongfully applied for the incorrect visa and that they were able to satisfy the requirements for a different visa.  This, if established, may justify the grant of a different visa but does not establish error or a basis for this Court to grant the application for leave to appeal.

Your Honour, having regard to those circumstances, it is submitted by the Minister that the proceeding has no reasonable prospects of success and meets the criterion in section 25A of the Judiciary Act 1903.

HER HONOUR:   Just let the interpreter interpret it.

MR KNOWLES:   Yes, thank you, your Honour.  Further, there was clear inability to satisfy the relevant visa criteria.  Those visa criteria were the subject of the relevant decision.  In terms of that decision, the application to this Court is also out of time and in the Minister’s submission no extension of time ought to be granted because of those poor prospects of success and a lack of any adequate explanation for the delayed commencement of the proceeding.

Finally, and in any event, the Minister submits that the application constitutes an abuse of process where the complaints that are advanced have already been litigated in the Federal Circuit Court and the Federal Court.  For those reasons, your Honour, it is submitted by the Minister that no extension of time ought to be granted in which to bring the application, further that the application for an order to show cause should be dismissed and the proceeding should otherwise be dismissed with costs.  Unless there is anything further, your Honour.

HER HONOUR:   Thank you, Mr Knowles.  Ms Dhariwal, you have heard what Mr Knowles has had to say.

MS DHARIWAL (through interpreter):   Yes.

HER HONOUR:   Now this is your opportunity to respond to any of other matters you wish to respond to.

MS DHARIWAL (through interpreter):   Yes.

HER HONOUR:   You take your time.

MS DHARIWAL (through interpreter):   I want to show this document to the study.

HER HONOUR:   Show them first to Mr Knowles.

THE INTERPRETER:   There are two copies here.

HER HONOUR:   Yes, Ms Dhariwal.

MS DHARIWAL (through interpreter):   You are saying all this about my studies, that I do not have the documents which I did not deposit.  The fact of the matter is they did not give us time to submit those.  And the second, they are saying that the hearing that we did not attend, for that they sent us an email on a wrong email address for which the date was changed and we did not know about it.  And when we received the email on my ID, email ID, then we came here the next day, and then they checked all the

documents and the email that they sent was the wrong one because that was my husband’s email ID.  That is why we could not come to that hearing.

Then we had appeal for that hearing to be reheard.  In every document we were said that we did not have the documents, although we had the documents.  What we want to say is we want justice.  We do not want anybody’s sympathy.  If we were not to come to the hearing we would not have come the next day there.  And what they are referring to the MRT, actually MRT did not ask us about anything.  They straightaway gave the decision.  If they had given us time and they had asked for the things, we would have provided them.

And in every hearing we requested that we want to submit the documents of our studies, and even here, when we submitted our application here, we said “Can we submit our study documents here?” and they said “No”.  That is why we have brought the copies with us today.

HER HONOUR:   Anything else, Ms Dhariwal?

MS DHARIWAL (through interpreter):   I think we should get the chance, it is all about my studies, and I have the proof that I have the documents.  We need justice which we did not get earlier.  One, we did not have the guidance though we asked for everywhere, that is why we went to first Migration Review Tribunal, we went to Minister as well and court as well.  And the main thing is that the fraud that…..Singh did with us, although he is a migration agent, he misguided us.  We did not know that as to what he is going to do with us.  This is not our fault.  We did not apply for the TR the husband was wanting so we should be given a chance so that we can apply for the MRT and we can give all documents to them.  That is all, your Honour.

HER HONOUR:   I propose to give my reasons for decision now.  I will speak slowly.  The interpreter will interpret.  Understand?

MS DHARIWAL (through interpreter):   Yes.

HER HONOUR:   On 2 September 2015, the plaintiffs, who are citizens of India ‑ ‑ ‑

THE INTERPRETER:   Sorry, your Honour?

HER HONOUR:   ‑ ‑ ‑ the plaintiffs, who are citizens of India, filed in this Court an application for an order to show cause seeking constitutional writs and related relief.  The plaintiffs are unrepresented.  The application for an order to show cause seeks a writ of prohibition preventing the first defendant from taking any further step in reliance on a decision made on 21 February 2013 by the second defendant, then known as the Migration Review Tribunal (“the Tribunal”), which affirmed a decision of the delegate of the first defendant made on 14 November 2011 not to grant the plaintiffs Skilled (Provisional) (Class VC) visas under the Migration Act 1958 (Cth) (“the Act”).

The application for an order to show cause also seeks writs of certiorari and mandamus in respect of the decision of the Tribunal. The application to show cause was filed outside the time for filing of the application under the Act and the High Court Rules. The plaintiffs require an enlargement of time under section 486A(2) of the Act and rule 4.02 of the High Court Rules.

Before turning to that application for an enlargement of time it is appropriate to set out what has occurred since 14 November 2011.  The first plaintiff filed an affidavit in which the following facts and matters were recorded.  On 1 December 2011, the plaintiffs applied to the Tribunal for a review of the delegate’s decision.  The second‑named plaintiff attended that hearing on 1 February 2013 and the first plaintiff participated by telephone.  On 21 February 2013, the Tribunal affirmed the delegate’s decisions not to grant the plaintiffs skilled visas.

On 10 January 2014, the plaintiffs applied to the Federal Circuit Court for an extension of time to seek review of the decision of the Tribunal.  The grounds of the application to extend time were as follows:

I was given incorrect information from fraud agent.

I am a victim of scam run by fake migration agent.

Due to financial problem I applied for ministerial intervention.  Please see further attachment A –

Attachment A relevantly recorded that:

Nearly finishing my study.  I went to migration agent . . . 

He told me that he arrange work visa for me.  He [applied] visa for me.  I never [applied] by myself any visa and I did not sign on any paper work.  He did every thin[g].  We blame him because he is a migration agent.  He [applied] wrong visa for us he put TR.  We don’t know anything about that.  We receive a letter which is TR refusal letter.  We went to the agent but he is not there then we [apply] MRT.

The substantive review grounds were stated by the plaintiffs to be that they were not happy with the Tribunal decision and that they had exceptional circumstances beyond the application.

The plaintiffs’ application for an extension of time was listed for hearing on 16 January 2015 before the Federal Circuit Court.  The plaintiffs did not attend the hearing and the application was dismissed by Judge Vasta.  On 30 January 2015, the plaintiffs applied to reopen the case on the grounds that the decision made on 16 January 2015 was made without notice to the plaintiffs.  The application was heard by Judge Burchardt on 8 May 2015 and the plaintiffs attended that hearing.

On 8 May 2015, Judge Burchardt refused the application.  In the course of his Honour’s reasons for decision he considered the plaintiffs’ prospects of success on the substantive review application and concluded that they were “quite hopeless”.  Relevantly, his Honour recorded the Tribunal had multiple reasons to reject the first‑named plaintiff’s application for a Skilled (Provisional) (Class VC) visa, including that:

She did not meet the mandatory criterion relating to completion of study.  She did not, on her own version of the events, meet the time of application requirement of competent English.  She had never received a skills recognition assessment.  She had not, unfortunately, even attended to the health examination required.

I will collectively define those criteria as the requirements.  His Honour therefore concluded that for those and other reasons it was not in the interests of justice to extend the time to enable the plaintiffs to bring their application because the application was hopeless and had no prospects of success.

The plaintiffs sought leave to appeal to the Federal Court of Australia. On 21 August 2015, the plaintiffs’ application was dismissed by Justice Pagone of the Federal Court. His Honour concluded that no appeal to the Federal Court could be brought from the decision of Judge Vasta because of section 476A(3)(a) of the Act and that there was no basis to allow the appeal from the orders of Judge Burchardt. The Federal Court found that Judge Burchardt did not err in the statement of principle or in its application to the plaintiffs. Further, Justice Pagone held that at each of the earlier hearings before the Tribunal and the Federal Circuit Court there was no material that the plaintiffs satisfied the requirements.

On 2 September 2015, the plaintiffs filed the application for an order to show cause in this Court. That application faces certain time limits under the Act and the High Court Rules. The Court may extend or enlarge these periods of time if it is satisfied that it is necessary in the interests of the administration of justice to do so – see Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 and section 486A(2) of the Act.

So the question is, is it necessary in the interests of justice to extend the time in this case?  The plaintiffs had a right to apply for judicial review of the Tribunal’s decision but they did not do so within the required timeframe.  The application eventually made was unsuccessful.  The plaintiffs then filed a further application to reopen the case in the Federal Circuit Court and that application was unsuccessful.  The plaintiffs then appealed to the Federal Court of Australia and that application was unsuccessful.  The fact that those applications were unsuccessful does not justify an order extending the time limit for applying for judicial review in this Court – see Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at paragraph 13.

It is then necessary to consider the plaintiffs’ prospects of success on the substantive application in this Court and the plaintiffs’ explanations for the delay in seeking relief in this Court.  First, the prospects of the plaintiffs succeeding in their substantive application in this Court - the plaintiffs identify their substantive ground as follows:

The decision of the Federal Court was made without jurisdiction or is affected by an error of jurisdiction.

Particulars to that ground state as follows:

The [plaintiffs] were acting on incorrect information provided by a fraudulent agent and who because of his incompetence and fraudulent activity applied for the wrong type of visa and this was to the detriment of the [plaintiffs].  The Court should have taken this very important fact into account when making its decision.

In the hearing of an application for an order to show cause the Court may dismiss the application if the Court is not satisfied that the application raises an arguable case for the relief claimed.  I have reviewed the plaintiffs’ complaints, the delegate’s decision and the decisions of the Tribunal, the Federal Circuit Court and the Federal Court.  There is no identifiable error.  The application does not raise an arguable case necessary for the grant of the relief claimed.  The argument sought to be advanced by the plaintiffs in this Court does not have merit.  Indeed, contrary to the terms of the proposed substantive ground, Justice Pagone considered the very matter sought to be raised by the plaintiffs when his Honour said:

The [plaintiffs] submitted orally at the hearing of their application that their migration agent had wrongfully applied for the incorrect visa and that they were able to satisfy the requirements for a different visa.  This, if established, may justify the grant of a different visa but does not establish error or a basis for this Court to grant the application for leave to appeal.

The position in this Court is the same.  The plaintiffs’ challenges to the various decisions do not support the relief claimed.  Further, the plaintiffs have not provided any good reason why the application for an extension of time to apply for the constitutional writs should be granted.  For those reasons, it is not in the interests of the administration of justice to make an order extending the time for the filing of the application to show cause and the orders I make are as follows:

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

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

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

You are excused from the Bar table.  Thank you for attending.

AT 11.47 AM THE MATTER WAS CONCLUDED