Kumra v Minister for Immigration and Border Protection & Anor

[2018] HCATrans 41

[2018] HCATrans 041

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M103 of 2017

B e t w e e n -

ASHISH KUMRA

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

Application for order to show cause

GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON WEDNESDAY, 7 MARCH 2018 AT 10.28 AM

Copyright in the High Court of Australia

MR C.M. McDERMOTT:   Your Honour, I appear for the first defendant and there is a submitting appearance for the second defendant.  (instructed by Sparke Helmore)

HIS HONOUR:   Thank you, Mr McDermott.  Mr McDermott, is the plaintiff in Court in Melbourne?

MR McDERMOTT:   I cannot see him, your Honour.

HIS HONOUR:   Have the matter called outside the courtroom in Melbourne and in Canberra, please.

COURT OFFICER:   No appearance, your Honour, in Melbourne.

COURT OFFICER:   No appearance in Canberra, your Honour.

HIS HONOUR:   Thank you.  Mr McDermott, I propose to proceed with the hearing of the application.  I propose to read the plaintiff’s affidavit of 2 August 2017 and I propose to read the affidavits of Oliver Young – I think there is a single affidavit of Oliver Young, is that right?

MR McDERMOTT:   That is correct, your Honour, in this proceeding.

HIS HONOUR:   Of 6 March 2018.  Is there other material that I should take into account?

MR McDERMOTT:   Yes, your Honour, there is and your Honour might be assisted by reference to the Court file because it is not contained in the affidavit of Mr Young.  There should be an email from the plaintiff to the Melbourne Registry of the High Court dated 23 February 2018 at 1.39 pm?

HIS HONOUR:   Thank you.  Yes, I will treat that email as in evidence.

MR McDERMOTT:   Thank you, your Honour.  There is the response from the Deputy Registrar on 26 February at 3.01 pm and there should also be, your Honour, a response – or an email from my instructor, Oliver Young, dated 1 March 2018 at 2.01 pm indicating that the defendant opposed the plaintiff’s request for an adjournment. 

HIS HONOUR:   Yes, thank you.

MR McDERMOTT:   So, that contextualises, I think, the evidence that should be before you about the adjournment request and the indication from the plaintiff that he would attend today.

HIS HONOUR:   Thank you.  I will treat that email chain as in evidence and mark it “Exhibit 1”.

EXHIBIT:Exhibit 1…..Email from the plaintiff to the Melbourne Registry of the High Court dated 23 February 2018 at 1.39 pm; response from the Deputy Registrar on 26 February at 3.01 pm and email from Oliver Young, dated 1 March 2018 at 2.01 pm

MR McDERMOTT:   If the Court pleases.

HIS HONOUR:   All right, I have read your submissions, thank you, and I do not need to hear further from you.

MR McDERMOTT:   If the Court pleases.

HIS HONOUR:   The plaintiff applies by an application for an order to show cause for orders which would have the effect of quashing a decision of a delegate of the Minister for Immigration and Border Protection refusing to grant to the plaintiff a Skilled (Residence) (Class VB) visa, quashing a decision of the Migration Review Tribunal affirming the delegate’s decision, and requiring the Administrative Appeals Tribunal to determine his application for a visa according to law.  The delegate’s decision was made on 5 December 2014.  The Tribunal’s decision was made on 3 June 2015. 

On 29 June 2015, the plaintiff applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.  The sole ground advanced in that application was that the Tribunal erred in finding that the plaintiff had provided a fraudulent document as part of his visa application.  The Federal Circuit Court heard and dismissed the application on 12 September 2016:  see Kumra v Minister for Immigration [2016] FCCA 2632.

The plaintiff then appealed to the Federal Court.  On 11 July 2017, the Federal Court dismissed the appeal:  see Kumra v Minister for Immigration and Border Protection [2017] FCA 778. The plaintiff then filed his application in this Court on 2 August 2017, together with a supporting affidavit, a summons and an outline of submissions. A Deputy Registrar of the Court listed the matter before me this morning, giving notice to the plaintiff.

The material before me indicates that the plaintiff, by an email of 23 February 2018 to the Deputy Registrar, indicated that he wished the matter not to proceed today for the reason which I interpret to be that his mother, who is overseas, is seriously ill and that he needed to be there and would be leaving on 1 March.  The email which was in substance a request for an adjournment did not indicate how long the adjournment was sought for and to a request from the Deputy Registrar to the plaintiff as to how long the adjournment was sought there was no reply.  The Minister, who appears by counsel today, opposes the adjournment.  I am not satisfied on the material before me that there is any substantial basis for it.  I therefore proceed to the merits of the application.

As Justice Moshinsky relates in detail in his Honour’s reasons for dismissing the plaintiff’s appeal to the Federal Court, the plaintiff provided a skills assessment from Trades Recognition Australia in support of his visa application.  The skills assessment relied on a reference letter from Pastry Art Design attesting that the plaintiff had worked for more than 930 hours as a pastry cook.  The delegate dismissed the plaintiff’s visa application on the basis that the skills assessment was a bogus document in that it was obtained because of a false or misleading statement contained in the letter from Pastry Art Design. 

The Tribunal explained in its reasons for decision that a man, who was identified in Justice Moshinsky’s judgment as Mr X, had made admissions to authorities that he had created false work references in return for money, including for Pastry Art Design, and that a second unsigned reference letter bearing the plaintiff’s name had been found at Mr X’s premises.  The Tribunal wrote to the plaintiff, inviting him to respond to that information.  The plaintiff did not respond and the Tribunal proceeded to determine the plaintiff’s application for review on the papers. 

The Tribunal determined that the plaintiff’s application did not satisfy Public Interest Criterion 4020 which required that there be no evidence before the Minister that the applicant for a visa had given or caused to be given to the Minister a bogus document. The Tribunal determined that there were no circumstances justifying waiver of that public interest criterion. Accordingly, the Tribunal determined that the plaintiff’s application did not satisfy clause 886.225 of Schedule 2 to the Migration Regulations 1994 (Cth) and affirmed the decision of the delegate.

On the materials before the Federal Court, which included the record of the Federal Circuit Court, Justice Moshinsky concluded that it did not appear that the plaintiff had provided any evidence to the Tribunal to the effect that he had not provided a fraudulent document.

In his application to this Court the plaintiff reasserts his claim that the Tribunal erred in finding that the plaintiff had provided a fraudulent document as part of his visa application.  As the Minister in written submissions submits, the plaintiff’s application is plainly an abuse of process.  The Federal Circuit Court has already undertaken judicial review of the Tribunal’s decision.  The Federal Court has determined an appeal from the Federal Circuit Court’s decision.  Should the plaintiff wish to challenge the Federal Court’s dismissal of his appeal from the decision of the Federal Circuit Court dismissing his application for judicial review, the proper avenue is for him to file an application for special leave to appeal in this Court.

The application for an order to show cause is dismissed with costs.

AT 10.40 AM THE MATTER WAS CONCLUDED