Mandava v Minister for Immigration and Border Protection

[2015] HCATrans 41

[2015] HCATrans 041

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M126 of 2014

B e t w e e n -

MAHESH MANDAVA

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Application for order to show cause

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 25 FEBRUARY 2015, AT 9.48 AM

Copyright in the High Court of Australia

MR R.C. KNOWLES:   Your Honour, if it pleases the Court, I appear for the first defendant in that matter.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you, Mr Knowles.  Would you call the matter outside please, Madam Registrar?

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Thank you, Madam Registrar.  Yes, Mr Knowles.

MR KNOWLES:   As with the previous matter and this matter as well, the Minister has filed and served submissions.

HIS HONOUR:   Thank you, I have those and also the affidavit in support.

MR KNOWLES:   Thank you, if your Honour pleases.  Essentially, for the reasons set out in the submissions, the Minister seeks that this matter also be dismissed with costs.  I do not know whether your Honour wishes to hear from me further than what is set out in the submissions?

HIS HONOUR:   No, I do not think so, thank you, Mr Knowles.  Be seated.

MR KNOWLES:   Thank you, your Honour.

HIS HONOUR:   This is an amended application for an order to show cause by which the plaintiff seeks an order in the nature of mandamus to compel the Minister for Immigration and Border Protection to grant him a further student visa.  The application arises out of orders of his Honour Justice Murphy of the Federal Court of Australia, of which the effect was to dismiss an appeal by the plaintiff from orders of the Federal Circuit Court of which in turn the effect was to dismiss the plaintiff’s application for judicial review of a decision of the Migration Review Tribunal to confirm a decision of the Minister’s delegate that the plaintiff did not meet the requirements for the grant of a Student (Temporary) (Class TU) visa.

As appears from the Tribunal’s reasons for decision, the Tribunal confirmed the delegate’s decision because it did not appear that the plaintiff satisfied the conditions for the grant of the visa, namely, that he be enrolled in an approved education institution. The Federal Court dismissed the plaintiff’s application to review the Tribunal’s decision because it was apparent that the Tribunal had not made a jurisdictional or, indeed, any error. Justice Murphy dismissed the plaintiff’s appeal from the Federal Court under section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 because the plaintiff failed to appear. His Honour, however, also went on to consider the substance of the matter and found that the appeal was devoid of merit.

It is also necessary to observe that, although when the application to show cause was first filed it sought certiorari to quash Justice Murphy’s judgment, such an order is no longer sought.  All that is now asked for is mandamus to compel the Minister to grant the visa upon the alleged basis that the Minister failed to consider what are said to be the plaintiff’s exceptional circumstances.

Given that the attack on Justice Murphy’s decision is no longer pressed, the amended application to show cause is, in my view, incompetent and an abuse of process.  There is, moreover, no tenable basis for the relief which is sought.  I consider, therefore, that the application should be dismissed upon the grounds of there being no reasonable prospects of success.

The order of the Court is that the application is dismissed with costs.

AT 9.53 AM THE MATTER WAS CONCLUDED