Ellahi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] HCATrans 99

[2022] HCATrans 099

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S32 of 2022

B e t w e e n -

HAMMAD ELLAHI

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Defendant

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON MONDAY, 23 MAY 2022, AT 9.30 AM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.

MR D.H. GODWIN appears for the plaintiff.  (instructed by Parish Legal and Migration Services)

MS R.S. FRANCOIS appears for the defendant.  (instructed by Sparke Helmore Lawyers)

HIS HONOUR:   I should say I have read the plaintiff’s application for a constitutional writ, including, in particular, the statement of reasons why the matter should not be remitted to another court and the response of the Minister and the reply of the plaintiff.  I have also read the affidavit of the plaintiff filed on 11 March 2022 and the affidavit of Katherine Louise Evans filed on 13 April 2022.  I have also read the one‑page defendant’s outline of argument dated 20 May 2022.  Mr Godwin, I take it you have no further material?

MR GODWIN:   I just have some brief oral submissions, your Honour, but no written submissions.

HIS HONOUR:   Very well.  The first order of business, I suppose, is the question of remitter of the claim for a declaration and I am proceeding on the footing that an extension of time is not necessary for that matter to proceed.  Is that assumption correct, so far as you are concerned, Mr Godwin?

MR GODWIN:   I had not turned my mind to that, I am afraid, your Honour.

HIS HONOUR:   That sounds like a yes to me.

MR GODWIN:   Yes.

HIS HONOUR:   Ms Francois, do you have any different view?

MS FRANCOIS:   No.  Delay would only be a discretionary basis for not hearing ‑ ‑ ‑

HIS HONOUR:   Yes.

MS FRANCOIS:   It is not a basis to say there is a jurisdiction ‑ ‑ ‑

HIS HONOUR:   It is not a condition precedent.  Mr Godwin, so far as the plaintiff is concerned, I do not apprehend that it is contended that he would suffer any prejudice in the sense that he would be adversely affected by the matter being remitted – in the sense that he would be adversely affected by the resolution of the alternative claim in the Federal Court of Australia or the Circuit Court, rather than in this Court, as a matter of process.  Is that correct?

MR GODWIN:   Your Honour, the only problem for the plaintiff is that he is on a bridging visa that does not allow him to work and gives him no study rights.  So, if the matter can be dealt with in one place at one time as expeditiously as possible, but if the matter is broken into two pieces then that will not occur.

HIS HONOUR:   Okay.  Certainly, everybody is interested in the most expeditious resolution of the matter.  Insofar as there are questions of fact to be resolved it is distinctly adverse to the desirable goal of an expeditious determination of the matter to have it in this Court as opposed to a court that is in a position to deal with the questions of fact that would seem to arise. 

In that regard, Mr Godwin, insofar as your contention is that the Federal Circuit and Family Court do not have jurisdiction to enable the matter to be remitted, I notice that Ms Francois’ outline in paragraph 5 refers to the possibility of remitter to the Federal Court on the footing that it has jurisdiction under s 39B(1A)(c) of the Judiciary Act 1903 (Cth). That does seem to me, subject to what you wish to say, correct in the sense that there is no carve‑out of the Federal Court’s jurisdiction in relation to your claim for a declaration because your claim for a declaration is not a challenge to any decision. It is just a claim that your client’s application is invalid. So, the various limitations on the jurisdiction of the Federal Court which relate to decisions and challenges to decisions of the Executive Government do not apply. What do you say to that?

MR GODWIN:   Your Honour, the difficulty we see with that is that in s 476B this Court cannot remit a matter or any part of a matter that relates to a migration decision. So, although the declaration is not itself in relation to a migration decision, it is part of a matter that relates to a migration decision and that ‑ ‑ ‑

HIS HONOUR:   If that were the obstacle, then Ms Francois would say that s 141 of the Federal Circuit and Family Court Act would probably enable the matter to proceed in that court.  I have to say I would think that it is rather difficult to make the case – or to make the contention that the Migration Act provision cuts back the general conferral of jurisdiction on the Federal Court under s 39B(1A)(c) given that your client’s application is a condition of the whole process. It is the beginning of the process and your case, on the alternative application, is that that process was never engaged because the application was tainted by fraud. What do you say to that?

MR GODWIN:   Your Honour, the only difficulty is that the authorities on what a matter is would mean that even though it is an alternative case it still arises out of a common transaction or facts, or a ‑ ‑ ‑

HIS HONOUR:   No, no, there is no common transaction or facts at all until you have a valid application, an effective application.  Your case, on the alternative case, is there was not one.

MR GODWIN:   Your Honour, I am content to accept what your Honour says in relation to the scope of the matter in this issue.  If that is right then 476B(1) and (3) would not provide an obstacle if that analysis is correct.

HIS HONOUR:   Yes.  Is there anything further that you want to say by way of submission in relation to your opposition to the application?  I should say that, as you appreciate, I hope, I am looking very much at remitter to the Federal Court rather than to the Federal Circuit and Family Court.

MR GODWIN:   Yes.  Just in relation to that, we say that it cannot be remitted to the Federal Circuit and Family Court because the declaration is not directed at a migration decision and it is not directed against an officer of the Commonwealth and it is not reliant on jurisdictional error.

HIS HONOUR:   No, I think they are all points that – whether or not they are right they are sufficient to suggest that the convenient and most uncontroversial course is to remit to the Federal Court.

MR GODWIN:   If it please the Court.

HIS HONOUR:   Ms Francois, you have heard the interchange.  My view is that while there is something to be said for the argument you put in the first four paragraphs of your outline of 20 May, the safer – the least controversial course is to take up the suggestion in paragraph 5.

MS FRANCOIS:   Yes, thank you, your Honour.

HIS HONOUR:   Is there anything further you want to say, Ms Francois?

MS FRANCOIS:   No, your Honour.

HIS HONOUR:   All right.  I will give some brief reasons for the decision I am about to make.

The plaintiff seeks an extension of time for the making of an application for relief in respect of a decision of a delegate of the defendant refusing an application by the plaintiff for a student visa. The plaintiff seeks relief pursuant to s 75(v) of the Constitution by way of writs of certiorari and mandamus in order that his application for a student visa should be determined according to law.  Alternatively, the plaintiff seeks a declaration that his application for a student visa was invalid.  An extension of time is not necessary to enable that claim, that is to say the claim for a declaration to proceed.

The plaintiff contends, in support of his claim for the constitutional writs, that the delegate’s decision to refuse to grant him a student visa was stultified by the fraud of the agent, Ms Khalil, engaged by him to apply for the visa on his behalf.  Alternatively, the plaintiff contends that aspects of Ms Khalil’s fraudulent conduct invalidated his application for a student visa.  It is this contention that supports his claim for a declaration.

The defendant contends that, insofar as the plaintiff’s application seeks declaratory relief, it should be remitted to the Federal Circuit and Family Court of Australia (Division 2) (“the Circuit Court”), or the Federal Court of Australia, and that the plaintiff’s application to this Court otherwise be stayed pending the outcome of the remitted proceeding.

The defendant does not accept the plaintiff’s account of the circumstances of Ms Khalil’s alleged fraud.  The defendant makes the point that the plaintiff bears the onus of proving that he has been the innocent victim of the fraud that is said to have affected the validity of his visa application[1].  In order to discharge that onus, it is incumbent on the plaintiff to establish that he was not complicit in the fraud or indifferent as to whether Ms Khalil used dishonest or unlawful means to seek to obtain the visa[2].

[1] Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1 at 21 [78].

[2] Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398 at 409 [48].

The defendant seeks to challenge the plaintiff’s account of his dealings with Ms Khalil.  To that end, the defendant has indicated that if the plaintiff’s proceedings remain in this Court, the defendant will seek to cross‑examine the plaintiff, and for that purpose, will seek the issue of subpoenas to the plaintiff and others to produce documents that relate to the circumstances of his application for a student visa and the visa he previously held. 

The inconvenience involved in this Court determining issues of fact by trial should be avoided where possible.  It is not suggested by the plaintiff that he would be prejudiced by the resolution of issues of fact upon remitter, rather than in this Court.  It is said, rather, that it is to be preferred that matters ought be dealt with at once.  That is no doubt a sensible position to take and a course that commends itself to all the parties and to the Court.  It is, however, most desirable that issues of fact as between the parties relating to these matters should be resolved without involving this Court in the determination of those matters of fact upon disputed evidence and cross‑examination.  That outcome may be achieved by remitting the plaintiff’s claims for a declaration to the Federal Court and staying the balance of the application in this Court until that claim is determined.

It is reasonable to expect that the issues of fact relating to the claim for a declaration of invalidity will be resolved for the purposes of all the plaintiff’s claims.  If the plaintiff’s claim for a declaration is successful there may indeed be no need to proceed with the plaintiff’s other claims because he will be at liberty to make a fresh application for a visa and if the plaintiff’s claim for a declaration is not successful the factual basis of his claim will, one would expect, have been determined so that his claims to the issue of the constitutional writs may proceed to the extent that it is possible without the need for this Court to engage in processes of fact finding.

The plaintiff opposes the remittal of his claim for a declaration on the basis that he does not challenge the decision of the delegate that the visa application was valid. The plaintiff makes two points: first, that the declaration he seeks is sought as ancillary relief to the delegate’s decision to refuse the visa; and, secondly, that the claim for declaratory relief cannot be remitted to the Circuit Court as there is no “migration decision” being challenged in respect of jurisdiction under s 476(1) of the Migration Act 1958 (Cth). The part of the matter involving a claim for a declaration about the validity of the visa application is not within the Circuit Court’s jurisdiction, it is said, in consequence of which s 476B(2) of the Act prevents this Court ordering its remittal.

The plaintiff’s first point must be rejected. The declaration sought by the plaintiff is not merely ancillary to his claim for the constitutional writs: it is truly alternative relief, both as a matter of form and a matter of substance. If the declaration were granted, the plaintiff would be in a position of not having made an application and not having had that application refused by the delegate. In that event, s 48 of the Migration Act 1958 (Cth) would not be an obstacle to a fresh application by him for a student visa. The claim for a declaration as to the invalidity of the application for a visa is, on no view, a claim about a “migration decision” by any decision‑maker. The plaintiff’s claim is that his application for such a decision was invalid.

It is not necessary to determine whether the plaintiff’s second point is correct. The application for the declaration may be remitted to the Federal Court which has jurisdiction under s 39B(1A)(c) of the Judiciary Act 1903 (Cth), which provides that the original jurisdiction of the Federal Court of Australia includes “jurisdiction in any matter . . . arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter”.

So far as the plaintiff’s claim for a declaration that his application for a visa was invalid, the limitations on the jurisdiction of the Federal Court in s 476 of the Migration Act have no operation.  Accordingly, I order that the plaintiff’s application for declaratory relief should be remitted to the Federal Court of Australia.  The plaintiff’s application to this Court should otherwise be stayed pending the outcome of the remitted proceeding.

Is there any reason why the costs of and incidental to today’s hearing should not be reserved?  Mr Godwin?

MR GODWIN:   No, your Honour.

HIS HONOUR:   Ms Francois?

MS FRANCOIS:   No, your Honour.

HIS HONOUR:   Very well.  The costs of and incidental to today’s hearing should be reserved.  Is there anything else?

MR GODWIN:   Not from the plaintiff’s point of view.

MS FRANCOIS:   Not from the defendant.  Thank you, your Honour.

HIS HONOUR:   Very well.  The Court will now adjourn.

AT 9.47 AM THE MATTER WAS ADJOURNED