Hussain v Minister for Immigration and Border Protection and Ors

[2014] HCATrans 61

[2014] HCATrans 061

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M4 of 2014

B e t w e e n -

MOHAMMED ASHWAQ HUSSAIN

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

MIGRATION REVIEW TRIBUNAL

Second Defendant

JUSTICE MORTIMER FEDERAL COURT

Third Defendant

Directions hearing

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 25 MARCH 2014, AT 9.31 AM

Copyright in the High Court of Australia

MS C.L. SYMONS:   If the Court pleases, I appear on behalf of the first defendant.  (instructed by Clayton Utz Lawyers)

HER HONOUR:   Yes.  There is a submitting appearance for the second defendant.

MS SYMONS:   Yes, there is, your Honour.

HER HONOUR:   No appearance for the third defendant.

MS SYMONS:   That is correct.

HER HONOUR:   Very well.  Yes, Ms Symons.

MS SYMONS:   Your Honour, we are not sure whether the plaintiff in the proceeding is in fact ‑ ‑ ‑

HER HONOUR:   Perhaps we should have the matter called.

MS SYMONS:   Yes.

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Ms Symons, as far as I am aware there has been an indication given to the Court that Mr Hussain intended to appear this morning.

MS SYMONS:   Yes.

HER HONOUR:   It might be appropriate in those circumstances if I stand your matter down, very briefly, have the next matter called and then call the matter back on.

MS SYMONS:   Yes, if the Court pleases.

HER HONOUR:   Just one moment, we might just make an inquiry as to whether or not the plaintiff has now arrived. 

MR M.A. HUSSAIN appeared in person.

HER HONOUR:   Mr Hussain, your matter has been called but we were waiting for you - if you would move, please, to that chair.  I appreciate that you want to make your own submissions this morning.

MR HUSSAIN:   Yes.

HER HONOUR:   Very well.  Ms Symons is appearing for the Minister but you may go first and make whatever submissions you would like to make this morning.  I should indicate to you that I have read the written materials which you have provided to the Court.  Take your time to get ready, Mr Hussain.  Yes, Mr Hussain.

MR HUSSAIN:   The papers which are submitted – last tendered are…..are to dismiss my papers on behalf of that I have been late to the court and the problem was I submitted my visa application the following next day and because that was on the last date and it was because I tried and intended to submit my paperwork but it did not went through.  So the next following day I submitted to the immigration and as well as the court but they did not accept my paperwork.  Now, there was one more problem with me with my passport.  The passport has been expired – I did not check that.  So there was two reasons and they cancelled my visa.  What I am requesting is because I was legally in Melbourne and what – the…..visa was with a student visa.  I was a ‑ ‑ ‑

HER HONOUR:   Now, your complaint is in relation to a Student (Temporary) class visa.

MR HUSSAIN:   Yes.

HER HONOUR:   That complaint has been brought by you before the Federal Magistrates Court and also an appeal was brought to the Federal Court of Australia and heard by Justice Mortimer.

MR HUSSAIN:   Yes.  Yes, because I have instructed them that I need some time at least I can finish my studies here and second thing, I have got my old certificates which I studied legally here and there is not any criminal record of mine in Melbourne from five years.  Third thing because – on behalf of my passport was expired, that is why they cancelled my visa so already I have got a new passport from the passport – Indian embassy.  So I request the authorities give me some time at least I can finish my studies, what I am doing at this stage and yes, that is what I mean to say.

HER HONOUR:   Thank you.

MR HUSSAIN:   I really, really appreciate if I get some time and at least – because I have got all my paperwork ready with me to present in front of your Honour any time if you can say me that everything is legally done by the law.  Yes.

HER HONOUR:   Thank you.  Does that complete what you wish to say?

MR HUSSAIN:   Yes, ma’am.

HER HONOUR:   Thank you.  You may sit down, Mr Hussain.  Yes, Ms Symons.

MS SYMONS:   Thank you, your Honour.  Your Honour, the position of the first defendant is set out in written submissions that I understand should have been filed with the Court late ‑ ‑ ‑

HER HONOUR:   Yes, I have read those.

MS SYMONS:   Thank you, your Honour.  Put simply, your Honour, the first defendant – if I start with the – the position is that the application for an order to show cause is out of time.  The plaintiff requires an enlargement of time in which to make such an application and the position of the first defendant, simply put, is such an enlargement should not be granted or should be refused for the reason simply that this is a matter which has been litigated in two forums below.  It was the subject of an application to show cause in the Federal Magistrates Court, as it then was. 

The ground of that application was put very generally and it required that court to revisit the decision of the Tribunal, this being an application for a student visa, where there is little scope in terms of the decision‑making process and in this case particularly there was a finding by the Tribunal that the plaintiff was unable to satisfy one of the criterion under clause 572.213 which was that he had, in relation to a previous student visa, obtained that visa by satisfying criterion 3 of the regulations – or Schedule 2 of the regulations.

The Tribunal was, in effect, bound by those previous circumstances, bound to find or to uphold the decision of the delegate which was to refuse the plaintiff the student visa.  Now, that decision of the Tribunal was in turn reviewed by the Federal Magistrates Court.  I should note, your Honour, that the plaintiff did not appear on that occasion but the court, in any event, dealt with the application to show cause or substantive hearing on its merit and determined that there was no discernible jurisdictional error in the decision of the Tribunal.

The plaintiff then sought to appeal from that decision to the Federal Court.  The purported appeal was out of time.  The plaintiff sought an enlargement of time, which was dealt with by her Honour Justice Mortimer.  In considering the application for an extension of time, her Honour, in turn, dealt substantively with the purported notice of appeal and in her decision – in effect, again revisited the decision of the Tribunal, found that it was free of error.  Her Honour considered the application of the criterion in the regulations.  She found, as the Federal Magistrates Court had found, that the application of the criterion was without error. 

Her Honour also considered the question of whether or not there had been a denial of procedural fairness to the plaintiff and that came out of the fact that the plaintiff had not appeared before the Tribunal and the Tribunal had exercised its power to proceed to a decision in the absence of the plaintiff at the hearing.  Her Honour found, in those circumstances, that there was not a proper basis upon which to grant the extension of time and her Honour refused that extension of time and, in effect, disposed of the proceedings before her.

Now, the position of the first defendant is that in those circumstances it would not be appropriate to grant the plaintiff, in this proceeding, an extension of time in which to file the application to show cause.  The delay is reasonably substantial.  The application is out of time, both with regard to the provisions of the Migration Act and the Rules of this Court. We have circumstances which invoke the principles of res judicata and issue estoppel. As I have indicated, your Honour, the way in which the proceeding was dealt with below meant that the decision to refuse the visa was dealt with in a wholesale fashion which, in my submission, means that there is nothing left which could be the subject of a future litigation in this Court.

So we say that it soundly engages the principles of res judicata and issue estoppel and, as such, constitutes an abuse of process.  We say that in those circumstances there is no proper basis upon which an enlargement of time should be granted as any application to show cause would inevitably fail in this Court.  That is the position of the first defendant.  We say that in those circumstances and should the application for an extension of time be refused that costs should follow the event.  We say there is nothing exceptional, out of the ordinary in this particular matter which should allow this Court to follow a different course.

So the orders that we seek are that the application for an extension of time to file an application for an order to show cause be refused, that the application and summons filed by the plaintiff be dismissed and that the costs follow the event and the plaintiff pay the costs of the first defendant.

HER HONOUR:   Is it necessary to make all those orders or is it sufficient, for present purposes, to order that the plaintiff’s application for an order to show cause be dismissed with costs?

MS SYMONS:   I would have thought that was sufficient, your Honour.

HER HONOUR:   Yes, it is just there is a slight inconsistency between the two sets of orders proposed.

MS SYMONS:   Yes, and I appreciate that when I said it I realised ‑ ‑ ‑

HER HONOUR:   Yes, very well.  Thank you, Ms Symons.  Yes, Mr Hussain.  Would you like to make further submissions to respond to Ms Symons?

MR HUSSAIN:   Firstly, I am so sorry because I was late today to my hearing because there was no money with me.  So I had to wait to find my friend to get money and buy the ticket.  That is why I was being late for this today.  The second thing ‑ ‑ ‑

HER HONOUR:   Thank you for your apology but you should appreciate the matter did not start until you arrived in Court so there is no problem arising out of you being late.

MR HUSSAIN:   The second thing like – I was a bit concerned about my visa thing because – I do not know what to say but…..with this thing.

HER HONOUR:   Yes, anything further?  You may sit down, Mr Hussain.

On 6 January 2014, the plaintiff, a citizen of India, filed an application for an order to show cause seeking declaratory and related relief in respect of a decision of the Migration Review Tribunal (“the Tribunal”) made on 25 February 2013 affirming the decision of a delegate of the first defendant to refuse to grant the plaintiff a Student (Temporary) (Class TU) visa. 

Although expressed elliptically, the relief sought is directed essentially to constitutional and prerogative writs. The plaintiff made his application more than nine months outside of the 35 day time limit for applications to the High Court imposed by s 486A(1) of the Migration Act 1958 (Cth) (“the Act”). The application was also made outside of the time limits for applications for certiorari and mandamus imposed by rr 25.06.1 and 25.07.2 of the High Court Rules 2004 (Cth) (“the Rules”). The second defendant, the Migration Review Tribunal, has filed an appearance submitting to any order the Court may make, save as to costs.

In an application brought by the Minister for summary dismissal it is acknowledged that this Court has the power to grant an extension of time, both under the Act and the Rules. However, the Minister submits that no extension should be granted where, as in this case, the plaintiff has come to the High Court only after first commencing proceedings seeking to challenge the same Tribunal decision in the Federal Circuit Court and the Federal Court of Australia.

The plaintiff filed an application for an order to show cause in relation to the Tribunal’s decision on 28 March 2013.  On 6 August 2013, Judge Burchardt dismissed the plaintiff’s application.  The plaintiff applied to the Federal Court of Australia for an extension of time within which to bring an appeal from the decision of the Federal Circuit Court.  On 14 November 2013, the Federal Court (Mortimer J) refused the plaintiff’s application for an enlargement of time as needed essentially for the reason that the plaintiff had no prospects of success.  That conclusion was based on her Honour’s finding that the plaintiff had failed to show any relevant jurisdictional error. 

In Re Commonwealth; Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67 McHugh J stated the principles applicable to applications for an enlargement of time. In the case of writs directed at the decisions of public officials or bodies, there is a public interest in an end to litigation about the efficacy of such decisions. Periods within which application may be made for certiorari and mandamus are such that only exceptional circumstances would justify enlarging those times. In deciding whether or not to enlarge time, the Court may take into account any explanation for delay and a plaintiff’s prospects of success in the proceedings.

In oral submissions made by the plaintiff today the plaintiff seeks to reagitate the merits of his application before the Tribunal on the basis that he wants time to complete studies commenced some years ago. The plaintiff’s application in the original jurisdiction of this Court seeks to relitigate matters heard and determined in the courts below. As such, the application would be an abuse of process which would be liable to dismissal pursuant to r 27.09.4(c) of the Rules if it were to proceed.

It would not be in the interests of justice, either generally or in this particular case, to grant an extension of time for the commencement of these proceedings.  The plaintiff has had resort to the judicial power of the Commonwealth and has not succeeded.  There is nothing in the written submissions or oral argument made today to suggest that the plaintiff plans to advance some new or different basis of challenge beyond the grounds already advanced, heard and determined in the Federal Circuit Court and in the Federal Court of Australia.  For these reasons, the appropriate order to be made by the Court is the plaintiff’s application for an order to show cause, filed on 6 January 2014, is dismissed with costs.

AT 9.52 AM THE MATTER WAS CONCLUDED