Lam v Minister for Immigration and Border Protection

[2019] HCATrans 174

[2019] HCATrans 174

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S141 of 2019

B e t w e e n -

SHU YUEN LAM

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 30 AUGUST 2019, AT 10.20 AM

Copyright in the High Court of Australia

HER HONOUR:   For the reasons that I now publish the application for a constitutional or other writ should be dismissed with costs.  I publish those reasons.

In matter S141 of 2019, the order of the Court is:

1.The plaintiff’s application for a constitutional or other writ filed on 8 May 2019 is dismissed with costs.

I publish that order and direct that the reasons as published be incorporated into the transcript.

On 8 May 2019, the plaintiff filed an application for a constitutional or other writ, supported by an affidavit affirmed by the plaintiff on 8 May 2019, seeking to “quash” a decision by a delegate of the defendant (“the Minister”) dated 3 April 2019 to refuse to grant the plaintiff a Temporary Graduate (Class VC) Temporary Graduate (Graduate Work) (subclass 485) visa (“the second delegate’s decision”).

The defendant filed his response on 26 July 2019.  The plaintiff then filed a reply on 5 August 2019. 

For the reasons that follow, the application for a constitutional or other writ should be dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

Background

On 30 November 2015, the plaintiff applied for a Temporary Graduate (Graduate Work) (subclass 485) visa.  On 8 March 2016, a delegate of the Minister refused the application (“the first delegate’s decision”).  On 15 August 2018, the plaintiff applied for a constitutional or other writ.  On 12 March 2019, Nettle J set aside the first delegate’s decision[1].

[1]Lam v Minister for Immigration and Border Protection [2019] HCATrans 43.

On 3 April 2019, a delegate (being a different delegate to the delegate who made the decision that was quashed by Nettle J) made a decision to refuse to grant the plaintiff the visa (“the second delegate’s decision”). 

Application should be dismissed

As the Minister submitted, each of the first delegate’s decision and the second delegate’s decision was a “Part 5 - reviewable decision” within the meaning of s 338 of the Migration Act 1958 (Cth) and, as such, is subject to merits review by the Administrative Appeals Tribunal (“the Tribunal”) if the plaintiff lodged an application with the Tribunal within the prescribed time limits[2].  In respect of the first delegate’s decision, the plaintiff’s application to the Tribunal was out of time and, thus, this Court was the only forum in which the plaintiff could have validly challenged the first delegate’s decision.

[2]Migration Act, s 347(1)(b); Migration Regulations 1994 (Cth), reg 4.10.

The position with respect to the second delegate’s decision is different.  The plaintiff lodged an application for review of that decision with the Tribunal on 24 April 2019.  The Minister accepts that the application was lodged within the prescribed time limit, and that the application is “valid on its face”, ongoing and yet to be concluded.  The Minister also accepts that if the Tribunal’s decision is unfavourable to the plaintiff, the plaintiff would be able to seek judicial review before the Federal Circuit Court of Australia[3]. 

[3]Migration Act, s 476.

It is not appropriate for this Court to determine the application for a constitutional or other writ.  As Nettle J said in Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate[4]:

[4](2016) 91 ALJR 1 at 8 [22]; 338 ALR 360 at 367 [22].

“Generally speaking, a litigant must exhaust its statutory rights of appeal before this Court will contemplate an application for mandamus or prohibition directed to achieving a result that in substance may be obtained on appeal.  As Gageler J recently observed in Waters v Federal Court of Australia and the Judges Thereof^[[5]], it is inappropriate for the original jurisdiction of this Court to be invoked to challenge a decision amenable to appeal, whether or not that appeal is subject to leave.”

[5][2015] HCATrans 347.

The plaintiff does not, and cannot, identify any fact or matter that might be said to constitute an exceptional circumstance to warrant this Court considering the application without the plaintiff’s statutory rights of review having been exhausted.  Here, the proper course is for the plaintiff to agitate the issues in the Tribunal rather than seek to raise them in this Court.  The plaintiff’s application for a constitutional or other writ filed in this Court is otherwise an abuse of process because the plaintiff is seeking to review that decision in the Tribunal[6].

[6]UBS AG v Tyne (2018) 92 ALJR 968 at 981 [59]; (2018) 360 ALR 184 at 200 [59].

For the same reasons, the plaintiff’s submission, in his written reply, that these proceedings should be stayed, rather than dismissed, is rejected.  A stay of the proceedings would serve no purpose.

For those reasons, the application for a constitutional or other writ should be dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth) with costs.

AT 10.21 AM THE MATTER WAS CONCLUDED