Kaur v Minister for Immigration and Border Protection & Anor

[2017] HCATrans 26

[2017] HCATrans 026

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M108 of 2016

B e t w e e n -

BALJINDER KAUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

Summons

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 15 FEBRUARY 2017, AT 9.29 AM

Copyright in the High Court of Australia

MR N.M WOOD:   Your Honour, I appear on behalf of the first defendant.  (instructed by Sparke Helmore)

HER HONOUR:   Can I have the matter called outside, please?  Have you had any contact from the plaintiff?

MR WOOD:   No, I do not believe so, your Honour.  I am informed that Registry have been trying to contact the plaintiff this morning, unsuccessfully.

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Thank you.  Mr Wood.

MR WOOD:   Your Honour, in the circumstances of the plaintiff’s non‑appearance I submit that the Court ought to dismiss both the summons and the underlying application for an order to show cause. The High Court Rules make specific provision for dealing with dismissal of a summons in the circumstance of non‑attendance. That is in rule 13.03.02 where the Court is expressly empowered to dismiss an interlocutory application, of which the summons is one, where the applicant fails to attend.

I have not identified an express rule dealing with dismissal of the underlying application in those circumstances but, your Honour, there is certainly precedent of this Court dismissing a proceeding as a whole, in effect, for want of prosecution in circumstances where the moving party does not appear at the hearing.  An example of that, your Honour, is a decision of the Court in Coventry v Charter Pacific Corporation.  I think that case has been included amongst a bundle that has been provided to your associate.

HER HONOUR:   Do you want me to have a look at it?

MR WOOD:   If it assists, your Honour, paragraph 16, tab 9, supports the proposition I have just mentioned.  That matter was an appeal, but, nevertheless, the circumstances are otherwise analogous.

HER HONOUR:   Which passage – do you want to take me to any particular part or do you just want me to ‑ ‑ ‑

MR WOOD:   Paragraph 16, your Honour, records the fact that the plaintiff had been notified of the appeal and the date fixed for oral argument, but at line 5 of paragraph 16 it notes, in the joint judgment:

when the appeal was called on for hearing there was no appearance for the –

relevant parties.  Provision was made for submissions in writing but that did not occur:

The appeal . . . should stand dismissed for want of prosecution.

By analogy I would submit that is the appropriate disposition in this case.  I understand that the Court itself advised the plaintiff of today’s hearing date.  In addition to that, by a letter on 9 February 2017 sent by express post to the plaintiff’s address, the Minister served his written submissions on the plaintiff and reminded the plaintiff of the date and time of this hearing date.  I am happy to hand up a copy of that letter to the Court if that would assist.

HER HONOUR:   Thank you.

MR WOOD:   Unless there are any further matters, your Honour, that is my submission.

HER HONOUR:   Thank you, Mr Wood.

The plaintiff filed an application for an order to show cause in this Court on 24 August 2016.  The application seeks a writ of certiorari to quash a decision of the second defendant, the Federal Court of Australia (“the Federal Court”), and mandamus directed at the first defendant (“the Minister”) to “reassess” her visa application and, if necessary, an enlargement of time to seek mandamus.

The plaintiff did not appear, but yesterday, the Court was provided with a copy of a medical certificate on behalf of the plaintiff.  The medical certificate did not specify the medical condition that she suffers from and it was inadequate.  The covering email indicated that she was able to “give evidence” by phone and provided her mobile number.  Despite attempts by the Court to contact her, the mobile phone was not answered.  Moreover, I am satisfied that the plaintiff has had notice of the hearing, both by service of the first defendant’s submissions, by letter dated 9 February 2017 sent by express post, as well as from the Court.

What I propose to do is to consider the facts and then turn to consider each aspect of the plaintiff’s application for an order to show cause. The first defendant submitted that the Court had power to hear the summons, under rule 13.03.3 of the High Court Rules 2004 (Cth) (“the High Court Rules”) and, further, although there was no express rule, had power to dismiss the substantive matter for want of prosecution by reference to the reasons for decision in Coventry v Charter Pacific Corporation Ltd (2005) 227 CLR 234 at 241 [16]; [2005] HCA 67. I proceed on those bases.

On 8 March 2012, the plaintiff applied for a Student (Temporary) (Class TU) visa (“the visa”).

Following a request from the Department for Immigration and Border Protection (“the Department”) for evidence that the plaintiff had funds of some AU$49,500, the plaintiff’s visa application attached two documents – a term deposit advice and a term deposit confirmation letter.  Integrity checks by the Department revealed that the term deposit recorded in the term deposit advice was fully drawn and the term deposit confirmation letter was fraudulent.  The plaintiff was invited to comment on this information.  The plaintiff provided three responses over a period of approximately 15 months; that, among other things, the bank had made an error due to her father’s common name, the confirmation letter had been prepared by the assistant bank manager and was not fraudulent, the bank had given the wrong documents to her father, her father did not check the documents properly and it was all a misunderstanding.

On 20 December 2013, a delegate of the Minister refused the application under section 65 of the Migration Act 1958 (Cth) (“the Migration Act”) on the basis that the delegate was not satisfied that the plaintiff satisfied the criterion in clause 572.224 of Schedule 2 to the Migration Regulations 1994 (Cth). In particular, the delegate was not satisfied that the plaintiff met Public Interest Criterion 4020 (“PIC 4020”) because she had provided a bogus document to the Department.

The plaintiff applied to the Migration Review Tribunal (“the Tribunal”) for review of the delegate’s decision.  On 2 March 2015, the Tribunal affirmed the delegate’s decision.

On 24 March 2015, the plaintiff applied to the Federal Circuit Court of Australia (“the Federal Circuit Court”) seeking judicial review of the Tribunal’s decision.  The Minister sought dismissal of those proceedings pursuant to rule 44.12 of the Federal Circuit Rules 2001 (Cth).  The Federal Circuit Court held a show cause hearing on 12 April 2016 and dismissed the plaintiff’s application pursuant to rule 44.12(1)(a) of the Federal Circuit Rules 2001 (Cth).

On 6 May 2016, the plaintiff applied to the Federal Court for an extension of time and leave to appeal from the Federal Circuit Court.  On 1 August 2016, that application for leave to appeal was refused by Justice Tracey on the basis that the plaintiff had not “identified any appealable error on the part of the Federal Circuit Court” and that her “grounds of appeal and supporting oral argument did no more than reargue the merits of her case”.

As I have said, on 24 August 2016, the plaintiff applied to this Court for an order to show cause. 

The application for an order to show cause seeks:

(1)a writ of mandamus to compel the Minister to “exercise powers to reassess [the visa] application of [the plaintiff] to complete her education in Australia and also waive [PIC 4020] to apply for [a] further visa in the future”;

(2)a writ of certiorari in relation to the decision made by Tracey J in the Federal Court on 1 August 2016 refusing an application for leave to appeal from the decision of the Federal Circuit Court made on 12 April 2016; and

(3)an enlargement of time to seek a writ of mandamus.

The grounds on which the plaintiff sought relief are in the following terms:

“1)If the Court determines that vitiating error has been demonstrated, then [the plaintiff] is entitled to the declaratory relief from court costs and [the visa] grant back to complete [her] education.

2)Delegate behalf of the Minister has misused s 116(1)(b) of the [the Migration Act] without giving [the plaintiff] to comment on his exceptional circumstance beyond his control to finish studies in Australia [the plaintiff] is barred for three year under [PIC 4020] without her involvement.

3)Nor is mandamus available to compel the exercise of those powers”.

In support of that application, the plaintiff submitted:

“1. … My Student visa has been refused is not authorized by [the Migration Act] sub-s 116(1)(b), on their proper construction; without accepting my exceptional circumstances beyond my control as I haven't made my funds for Immigration but I have submitted the funds organized by my parents.

2.Immigration should have given chance of showing the funds one more time that parent would have submitted second time properly with care, just for broker mistake father and me became victims.”

The difficulty for the plaintiff is that the application fails at the first hurdle. 

The plaintiff has not identified any basis for this Court to issue a writ of certiorari in relation to the decision of the Federal Court.  There is no identified error in the decision of the Federal Court and none can be identified. 

Further, as occurred in the Federal Court, the plaintiff’s statement of grounds in this Court does no more than seek to reargue the merits.  That is impermissible:  see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6. This Court’s jurisdiction goes no further than declaring and enforcing the law that sets the limits and governs the power of the decision‑maker – this Court cannot simply cure administrative injustice or error: see Wu Shan Liang (1996) 185 CLR 259 at 272; see also Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35‑36; [1990] HCA 21 and Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901 at 914 [81]; [2016] HCA 29.

The plaintiff’s application for an order to show cause insofar as it seeks an order for mandamus faces time limits: see section 486A(1) of the Migration Act and rule 25.07.2 of the High Court Rules. The Court, of course, 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 The Commonwealth; Ex parte Marks (2000) 75 ALJR 470; 177 ALR 491; [2000] HCA 67 and section 486A(2) of the Migration Act.

In this matter, it is not in the interests of the administration of justice to grant the plaintiff an extension to seek an order for mandamus. The application does not raise an arguable case necessary for the grant of the relief claimed. Moreover, the application does not identify any current duty that the Minister has to consider or determine the plaintiff’s visa application that might be enforceable by a writ of mandamus. The Minister discharged his duty under section 47 of the Migration Act to consider the plaintiff’s visa application when his delegate decided, under section 65(1)(b) of that Act, to refuse to grant the visa. There is nothing to “reassess”.

Second, the plaintiff’s explanation for the delay in seeking relief in this Court is unsatisfactory.  The plaintiff had a right to apply for judicial review of the decision of the Tribunal.  That application was unsuccessful.  The plaintiff then applied for leave to appeal to the Federal Court.  That application was also 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 678 [13]; 297 ALR 560 at 563; [2013] HCA 22.

Having regard to those matters, 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 insofar as it seeks a writ of mandamus. 

Rule 25.03.3(a) of the High Court Rules provides that, on the hearing of an application for an order to show cause, the Court may dismiss the application. As I have sought to identify, the application does not raise an arguable case necessary for the grant of the relief claimed.

The plaintiff’s application for an extension of time under section 486A(2) of the Migration Act is refused.  The plaintiff’s application for an order to show cause filed on 24 August 2016 is otherwise dismissed with costs.

The orders I make are as follows:

1.The plaintiff’s application for an extension of time under section 486A(2) of the Migration Act is refused.

2.The plaintiff’s application for an order to show cause is otherwise dismissed.

3.The plaintiff is to pay the Minister’s costs of the proceedings.

Anything else, Mr Wood?

MR WOOD:   No, your Honour, thank you.

HER HONOUR:   Thank you.  You are excused.

AT 9.45 AM THE MATTER WAS CONCLUDED