Hossain v Minister for Home Affairs & Ors; Alif Rahman by His Litigation Guardian Emad Hossain v Minister for Home Affairs & Ors; Rahman v Minister for Home Affairs & Ors

[2019] HCATrans 182

[2019] HCATrans 182

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S155 of 2019

B e t w e e n -

EMDAD HOSSAIN

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

Office of the Registry
  Sydney  No S156 of 2019

B e t w e e n -

ALIF RAHMAN BY HIS LITIGATION GUARDIAN EMAD HOSSAIN

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

Office of the Registry
  Sydney  No S157 of 2019

B e t w e e n -

SALMA RAHMAN

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 SEPTEMBER 2019, AT 9.37 AM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   On 28 May 2019 the plaintiff in each of these matters filed an application for a constitutional writ and other relief.  For the reasons that I now publish I would dismiss the applications.  I direct that those reasons be incorporated into the transcript.

The orders are:

1.In each matter the application is dismissed pursuant to rule 25.09.1 of the High Court Rules 2004 (Cth).

2.The plaintiff in Matter No S155 of 2019 pay the costs of the first defendant in Matter No S155 of 2019 and Matter No S156 of 2019.

3.The plaintiff in Matter No S157 of 2019 pay the costs of the first defendant in Matter No S157 of 2019. 

I publish those orders.

The plaintiff in each of these actions applies for an order in the nature of certiorari to quash the orders made in the Federal Court of Australia (“the FCA”) by Besanko J[1]. The plaintiffs are members of the same family and their actions raise common issues. The FCA refused the plaintiffs’ applications for leave to appeal from the decision of the Federal Circuit Court of Australia (“the FCC”) and awarded costs in favour of the Minister for Home Affairs (“the Minister”). The FCC had dismissed each plaintiff’s application for judicial review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) to uphold the decision of a delegate of the Minister to refuse each plaintiff’s application for a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).

[1]Hossain v Minister for Home Affairs [2019] FCA 634.

At the time of the plaintiffs’ visa applications, Class UB contained one subclass, Subclass 602 (Medical Treatment), which may be issued for the purpose of enabling persons to visit or remain in Australia temporarily for medical treatment or related purposes. The criteria for the grant of such a visa are set out in Pt 602 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

On 11 July 2017, a delegate of the Minister decided that none of the plaintiffs met the requirements of cll 602.212(6) and 602.213 of the Regulations. The requirements of cl 602.212(6) (all of which were required to be met) include that an applicant has turned 50 years of age. Clause 602.213 requires relevantly that an applicant hold, at the time the application is made, a substantive temporary visa and that, among other things, criterion 3001 in Sch 3 is met. Criterion 3001 requires that the application be lodged within 28 days of the “relevant day”, that being the last day on which an applicant held a substantive visa.

The Tribunal found that none of the plaintiffs had turned 50 years of age.  The Tribunal also found that the last substantive visa held by any plaintiff had ceased on 10 September 2013; and because his or her application was made on 30 June 2017, criterion 3001 was not met.  These findings were plainly correct.  In these circumstances, the Tribunal had no choice but to uphold the delegate’s refusal of the visa applications.

The plaintiffs now claim that the decision of the FCA was affected by various failures of process; but the plaintiffs identify no arguable basis for challenging the decision of the FCA on the ground of jurisdictional error.  The plaintiffs’ contentions do not disclose any reason to doubt the correctness of the decision of the FCA; but in any event, any error of process on the part of the Tribunal, the FCC, or the FCA, could not be characterised as a jurisdictional error so as to warrant the grant of a writ in the nature of certiorari because any error of process was not material to the refusal of the visa applications, that refusal being inevitable[2].

[2]Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 at 788 [30]‑[31]; 359 ALR 1 at 9 [30]‑[31]; Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 at 263 [44]‑[45]; 363 ALR 599 at 611 [44]‑[45].

The plaintiffs further contend that the Tribunal contravened s 359A of the Act by failing to invite the plaintiffs, in writing, to comment upon, or respond to, information that might in some way specified in that section, have adversely affected the plaintiffs’ prospects of success in their applications. But the plaintiffs’ applications failed, as they were bound to do, because of the plain inability of the plaintiffs to satisfy the criteria for the grant of the visas.

The plaintiffs also seek a declaration that s 33(4B) of the Federal Court of Australia Act 1976 (Cth) is invalid on the ground of inconsistency with Ch III of the Constitution.  The plaintiffs articulate no basis at all to support their contention.  It is without substance, and has consistently been rejected[3]. It is also an insufficient ground to engage the notice requirements of s 78B of the Judiciary Act 1903 (Cth)[4].

[3]See, eg, Plaintiff S208/2018 v Minister for Home Affairs [2019] HCATrans 3; BLS16 v Minister for Home Affairs [2019] HCATrans 115.

[4]Glennan v Commissioner of Taxation (2003) 77 ALJR 1195 at 1197‑1198 [14]; 198 ALR 250 at 253 [14].

The plaintiffs’ applications to this Court must be dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth) because the applications do not disclose an arguable basis for the relief sought.

The plaintiff in Matter No S155 of 2019 is the litigation guardian of the plaintiff in Matter No S156 of 2019.  The plaintiff in S155 of 2019 must pay the Minister’s costs in both of those matters.

The plaintiff in Matter No S157 of 2019 must pay the Minister’s costs in that matter.

AT 9.39 AM THE MATTERS WERE ADJOURNED