Mohammed v Minister for Immigration and Border Protection & Anor

[2018] HCATrans 107

[2018] HCATrans 107

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M125 of 2017

B e t w e e n -

AMJAD ALI MOHAMMED

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

Application for order to show cause

BELL J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON THURSDAY, 31 MAY 2018, AT 10.44 AM

Copyright in the High Court of Australia

MR A.A. MOHAMMED appeared in person.

MR R.C. KNOWLES:   Your Honour, if it pleases the Court, I appear for the first defendant.  (instructed by Clayton Utz Lawyers)

HER HONOUR:   Mr Mohammed, you have filed an application for an order to show cause why you should not be granted relief, namely, a writ of mandamus to issue to the Minister for Immigration and Border Protection, a writ of certiorari to bring up the decision of the Federal Court of Australia made on 21 August 2017, and you seek an enlargement of time in which to claim that relief.  That is so?

MR MOHAMMED:   Yes. 

HER HONOUR:   Mr Mohammed, what evidence are you relying on in support of your application?

MR MOHAMMED:   Nothing at the moment. 

HER HONOUR:   All right.  Mr Mohammed, you filed some submissions on 26 February.  Do you rely on those submissions?

MR MOHAMMED:   Yes.

HER HONOUR:   You also filed, I think, Mr Mohammed, copies of the Federal Court’s decision, the Federal Circuit Court’s decision, the decision of the Administrative Appeals Tribunal, and the original decision made by the Minister’s delegate.  Those were, I think, attached to an affidavit that you affirmed on 8 September 2017.

MR MOHAMMED:   Yes.

HER HONOUR:   Do I take it, Mr Mohammed, you rely on the contents of that affidavit?

MR MOHAMMED:   Yes.

HER HONOUR:   Is there any objection to any part of the affidavit, Mr Knowles?

MR KNOWLES:   No, your Honour.

HER HONOUR:   Very well.  Mr Mohammed, have you received a copy of the submissions that the Minister filed on 24 May 2018?

MR MOHAMMED:   Yes.

HER HONOUR:   Do you understand, Mr Mohammed, that the Minister is asking for the Court to dismiss your application today for the reason that the Minister submits that the bringing of this proceeding is an abuse of process and, alternatively, he says, that you do not identify any arguable basis for this Court granting you the relief that you claim.  Do you understand that?

MR MOHAMMED:   Yes.

HER HONOUR:   Is there anything you wish to put to me concerning why the Court should entertain your claim?

MR MOHAMMED:   I am not asking for…..  The decision has already come, so I cannot say anything.  Always the decision is negative.  I thought maybe this decision I try my best to get the result in a positive way, but it never comes.

HER HONOUR:   Yes.

MR MOHAMMED:   Thank you. 

HER HONOUR:   Did you say, Mr Mohammed, that you are not seeking an adjournment?

MR MOHAMMED:   Sorry?

HER HONOUR:   I am not sure that I heard the first thing that you said to me.  Did you say that you were not seeking an adjournment?

MR MOHAMMED:   No.

HER HONOUR:   That leaves matters unclear.  What did you say about the question of an adjournment, Mr Mohammed?  I simply did not hear you.

MR MOHAMMED:   What question - can you ask again, please?

HER HONOUR:   I think you said that you were not seeking an adjournment, but I am not sure that I heard you correctly.  What did you say?

MR MOHAMMED:   Yeah, I said I do not know what I am going to hear.  I said I will just hear today hearing, so I say.

HER HONOUR:   Yes, very well.  There is nothing else you wish to put to me?

MR MOHAMMED:   No, thank you.

HER HONOUR:   Thank you, Mr Mohammed.  Yes, Mr Knowles.

MR KNOWLES:   Thank you, your Honour.  Your Honour, apart from the documents that the Court has identified and, obviously, the application and summons by which the matter was instituted, your Honour should also have in this matter an affidavit of my instructor, Ms Isabelle Minnett, dated 16 May 2018.

HER HONOUR:   Yes, I have that.

MR KNOWLES:   May I take that as read, your Honour?

HER HONOUR:   Yes.  I will just inquire - Mr Mohammed, have you seen the affidavit of Isabelle Minnett?  It was filed in the Court on 17 May 2018, and annexed to it are documents concerning your application for the visa.

MR MOHAMMED:   Yes.

HER HONOUR:   You have seen that?

MR MOHAMMED:   Yes.

HER HONOUR:   Do you have any objection to any part of that affidavit?

MR MOHAMMED:   No, thank you.

HER HONOUR:   Yes, thank you.  Yes, you may take it as read, Mr Knowles.

MR KNOWLES:   Thank you, your Honour.  Aside from that affidavit, your Honour should have the aforementioned outline of submissions for the Minister, dated 24 May 2018.

HER HONOUR:   Yes.

MR KNOWLES:   Having regard to the terms of the materials before the Court and the matters raised today by Mr Mohammed, I did not, subject to any particular request for me to do so by the Court, propose to make any further submissions orally, and intended simply to rely on what is set out in the first defendant’s written outline of submissions.

HER HONOUR:   Yes, thank you, Mr Knowles.

MR KNOWLES:   Thank you, your Honour.

HER HONOUR:   I take it, Mr Mohammed, that there is nothing further that you wish to put to me in light of Mr Knowles’ submission.

MR MOHAMMED:   No.

HER HONOUR:   Yes, thank you, Mr Mohammed.

On 8 September 2017, the plaintiff filed an application for an order to show cause claiming mandamus directed to the Minister for Immigration and Border Protection, the first defendant (“the Minister”), and certiorari directed to bring up the decision of the Federal Court of Australia made on 21 August 2017 together with an enlargement of time in which to apply for mandamus.  The second defendant has filed a submitting appearance.  The plaintiff appears today in person.

The Minister in written submissions that were filed on 24 May 2018 submits that the proceeding is an abuse of process, in the alternative that the plaintiff has not articulated an arguable basis for the relief he claims and the Minister seeks the dismissal of the proceeding with costs.

The evidence is that the plaintiff is a citizen of India. On 1 September 2015, the plaintiff applied for a Student (Temporary) (Class TU) visa Subclass 573 (Vocational Education and Training Sector). On 29 October 2015, a delegate of the Minister made a decision not to grant the plaintiff a student visa. The delegate determined that the plaintiff did not meet the “genuine temporary entry criteria” under clause 572.332 of Schedule 2 to the Migration Regulations 1994 (Cth).

On 10 November 2015, the plaintiff applied to the Administrative Appeals Tribunal for a review of the delegate’s decision.  On 8 June 2016, the plaintiff appeared before the Tribunal to give evidence and present arguments.  On 10 June 2016, the Tribunal affirmed the delegate’s decision finding that the plaintiff does not meet the criteria for the grant of the student visa. 

On 23 June 2016, the plaintiff applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.  The application came before Judge Riley on 28 April 2017.  The only grounds that Judge Riley discerned from the form of the application were unparticularised assertions that the interpreter had not interpreted the plaintiff’s evidence accurately and that the plaintiff had not felt comfortable giving evidence by telephone.  Her Honour found there was no substance to either complaint.  Her Honour found no jurisdictional error attending the Tribunal’s conduct of the review or its determination.  The application was dismissed.

On 9 May 2017, the plaintiff appealed to the Federal Court of Australia from the orders of the Federal Circuit Court. On 21 August 2017, the appeal was dismissed. Justice Davies identified as one possible ground of appeal the allegation that the Tribunal’s consideration was “totally against S53 and S69 under Minister Guidelines of Genuine Temporary Entry”. Her Honour took the reference to S53 to be to Ministerial Direction No 53 which required the Tribunal to take into account certain matters. The relevance of section 69 of the Migration Act 1958 (Cth) was not apparent. Her Honour found no error in the decision of the Federal Circuit Court and the appeal was dismissed.

On 8 September 2017, the plaintiff commenced the present proceeding in the original jurisdiction of this Court. The grounds on which the relief is claimed are unclear but appear to raise the matters agitated before Justice Davies respecting the asserted misuse by the delegate of “the power under S69 or S53”.

To the extent that the application seeks to impugn the delegate’s decision, that decision has been superseded by that of the Tribunal.  The Tribunal’s decision was the subject of judicial review by the Federal Circuit Court, which review was taken on appeal unsuccessfully.  No application for special leave to appeal from the decision of the Federal Court has been brought.  In the circumstances it would be subversive of the interests of the administration of justice to entertain an application in the original jurisdiction which seeks to avoid the strictures associated with the obtaining of a grant of special leave to appeal.  In the circumstances I accept the Minister’s primary submission that the proceeding is an abuse of the process of the Court.  For these reasons the application is dismissed with costs.

AT 11.02 AM THE MATTER WAS CONCLUDED