Haider v Minister for Immigration and Border Protection & Anor

[2017] HCATrans 32

[2017] HCATrans 032

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M167 of 2016

B e t w e e n -

JAHANZAIB HAIDER

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 16 FEBRUARY 2017, AT 10.16 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 this matter.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you, Mr Knowles.  Call the matter outside, would you please.

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Thank you.  Mr Knowles, anything to add to your written submissions?

MR KNOWLES:   No, there is nothing to add.  The only thing I should say is, your Honour, there has been prepared an affidavit of service of a Tania Lucille Scorgie, dated 9 February 2017.  I believe that that affidavit has been filed with the Court and I just note that that goes to the fact that the written submissions have been served on the plaintiff in this matter, so the plaintiff is aware of the position taken by the first defendant in this particular instance.

HIS HONOUR:   That was the affidavit of – did you say 13 February 2017?

MR KNOWLES:   Sorry, your Honour – pardon me, it is 9 February 2017.  There is another ‑ ‑ ‑

HIS HONOUR:   Yes, thank you, I have that.

MR KNOWLES:   Thank you, your Honour.  The only thing I should otherwise note, your Honour, is that my instructor, Ms Kowalewska, has prepared a short affidavit exhibiting an email sent to the plaintiff’s last known email address which indicates notification of the hearing date and the fact that if there was a failure to appear the Minister would nonetheless still continue to proceed to seek the orders described in the submissions.  If it would assist your Honour, I could provide the Court with a copy of ‑ that affidavit, I should say.

HIS HONOUR:   Yes, please.

MR KNOWLES:   Beyond those affidavits, your Honour, there is nothing that I wish to add to the written submissions which have already been filed and served.

HIS HONOUR:   Thank you.

Upon this matter coming on for hearing there has been no appearance by or on behalf of the plaintiff.  I note, however, that the submissions were served, as is deposed to in the affidavit of service of 9 February 2017 which was filed on 13 February 2017 and that, on 14 February 2017, an email was sent by the first defendant to the plaintiff as is deposed to in the affidavit of Ms Kowalewska of 15 February 2017, leave to file which in Court is granted.  That being so, I propose to proceed in the plaintiff’s absence.

The plaintiff, who is a Pakistani, seeks an order to show cause why mandamus should not go to compel the Administrative Appeals Tribunal, previously the Migration Review Tribunal, to reconsider its decision of 9 February 2015 to affirm the Minister’s delegate’s decision of 30 December 2013 to refuse the plaintiff’s application for a Student (Temporary) (Class TU) visa pursuant to section 65 of the Migration Act 1958 (Cth). The Tribunal found that the plaintiff had spent over two years in this country, beginning on 7 October 2011, for which he was unable to provide evidence of having completed any courses and that he had a study gap between 7 September 2012 and the time of the Tribunal’s decision on 9 February 2015. The Tribunal concluded that given the plaintiff’s lack of academic progress and the study gap it did not appear that he was a genuine applicant for a student visa, but rather was abusing the student visa program in order to maintain residence in Australia.

The plaintiff applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision, but failed to appear on the day listed for hearing. Accordingly, Judge McGuire dismissed the application pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules.

The plaintiff applied to the Federal Court of Australia for an extension of time to seek leave to appeal from the orders of Judge McGuire, but his Honour Justice Logan dismissed the application for extension of time and for leave to appeal because his Honour found that an appeal would not enjoy any prospect of success.  As his Honour observed, although it was evident from the plaintiff’s oral submissions that he was dissatisfied with the Tribunal’s decision, that decision turned very much on the Tribunal’s assessment of the plaintiff’s credibility as to why he wished to remain in Australia and it was, in effect, a value judgment which, on the basis of material before the Tribunal, was reasonably open to be made.

The grounds of the application for order to show cause are:

“(a)[The Federal Court] concluded that I the applicant do not meet the requirements of clause 573.223 and the Court by affirming the decision has also fallen into error.

(b)That on receiving the decision of the Federal Circuit Court I was advised that I should write to the Minister and ask him to exercise his discretion under s 351 of the Migration Act. I made that request and on 26 June 2016, I received a letter dated 24 June 2016 from the Minister refusing my application. I then sought an extension of time in lodging an appeal to the Federal Court and I made this appeal as soon as possible after I found out that my application for a s 351 had been refused. I was only a few weeks out of time. I say this was only a small period of time and it would be in the interests of justice that I be given leave to appeal out of time, as I do believe I have strong grounds of appeal.”

The plaintiff’s application for order to show cause is misconceived.  Given the plaintiff’s failure to appear on the day appointed for hearing, it was appropriate that Judge McGuire dismiss the plaintiff’s application for judicial review and, equally, it was appropriate that Justice Logan refused to extend time to appeal to the Federal Court, as his Honour did on that basis.  Furthermore, as his Honour also observed, an appeal would have been futile.  Nothing which the plaintiff advanced before the Federal Court and nothing of the plaintiff’s grounds of application to this Court reveals an intelligible basis for the relief which is claimed.

As matters stand, there is no reason to doubt the rectitude of the Tribunal’s decision or to delay any longer in giving it effect.  In the result, the application is dismissed with costs.

MR KNOWLES:   If your Honour pleases.

HIS HONOUR:   Thank you, Mr Knowles.

AT 10.24 AM THE MATTER WAS CONCLUDED