Patel v Minister for Home Affairs & Ors

[2019] HCATrans 37

[2019] HCATrans 037

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S252 of 2018

B e t w e e n -

BHAUMIK JITENDRABHAI PATEL

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL CIRCUIT COURT OF AUSTRALIA

Third Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 1 MARCH 2019, AT 9.34 PM

Copyright in the High Court of Australia

HIS HONOUR:   This application for an order to show cause was heard by me yesterday.  For the reasons that I now publish I would dismiss the application.

The orders are:

1.The application for an order to show cause filed on 19 September 2018 be dismissed.

2.The plaintiff’s application for an order extending time under section 486A(2) of the Migration Act 1958 (Cth) and r. 4.02 of the High Court Rules 2004 (Cth) be refused.

3.The plaintiff pay the first defendant’s costs.

I publish those orders.  I direct that the reasons as published be incorporated into the transcript.

The plaintiff is an Indian citizen. On 29 September 2017, the plaintiff applied for a Student (Temporary) (class TU) (Subclass 500) visa. On 27 November 2017 a delegate of the Minister for Immigration and Border Protection (“the Minister”) refused his application. The delegate refused the application because at the time that the decision was made, the plaintiff had not provided any evidence of financial capacity as required by cl 500.214 of Sch 2 to the Migration Regulations 1994 (Cth).

On 22 December 2017, the plaintiff applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the delegate’s decision.  On 23 January 2018, the Tribunal invited, by letter attached to an email, the plaintiff to comment on the validity of the application since it was out of time.  On 5 March 2018, after a response from the plaintiff, the Tribunal notified the plaintiff of its decision that it did not have jurisdiction to review the delegate’s decision because the application had not been lodged within the 21 day time limit[1].  The plaintiff sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia, alleging that the Tribunal had jurisdiction and that the delegate had made jurisdictional errors, with the effect, he alleged, that the delegate had made no decision at all.  On 23 August 2018, the Federal Circuit Court dismissed the application on the basis that its jurisdiction was not enlivened[2].

[1]Migration Regulations 1994 (Cth), reg 4.10(1)(a).

[2]Patel v Minister for Home Affairs [2018] FCCA 2519 at [28]-[29].

On 19 September 2018, the plaintiff filed this application for an order to show cause in this Court.  The first defendant entered an appearance and the second defendant entered a submitting appearance.  No appearance was entered by the third defendant.  Although this application was filed prior to promulgation of the High Court Amendment (Constitutional Writs and Other Matters) Rules 2018 (Cth), it is to be treated, and was heard yesterday, by reference to the new Pt 25 of the High Court Rules 2004 (Cth): see r 61.01(a). I would dismiss the application for the following reasons.

The plaintiff initially sought writs of certiorari and mandamus in relation to the decision of the delegate refusing the plaintiff’s visa application, as well as writs of certiorari against the Tribunal and the Federal Circuit Court.  The plaintiff’s challenges were prolix and, in parts, very difficult to follow.  Insofar as the plaintiff challenged the decisions of the Tribunal and the Federal Circuit Court, there is a long‑standing principle that ‘a litigant must generally exhaust statutory rights of appeal before this Court will contemplate an application for a constitutional writ directed to achieving a result that in substance may be obtained on appeal”[3].  It is usually inappropriate for the original jurisdiction of this Court to be invoked where the decision under challenge is a decision which is amenable to appeal, whether or not that appeal is subject to leave[4].

[3]Rilak v A Senior Registrar of the Family Court of Australia at Sydney [2018] HCATrans 101 at lines 576-579. See also Waters v Federal Court of Australia and the Judges Thereof [2015] HCATrans 347 at lines 619-621; Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2016) 91 ALJR 1 at 8 [22]; 338 ALR 360 at 367; [2016] HCA 41; Dimitrov v Supreme Court of Victoria (2017) 92 ALJR 12 at 17 [19]; 350 ALR 191 at 196; [2017] HCA 51; Bechara v Bates [2018] HCATrans 164 at lines 359-366.

[4]Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2016) 91 ALJR 1 at 8 [22]; 338 ALR 360 at 367; Dimitrov v Supreme Court of Victoria (2017) 92 ALJR 12 at 17 [19]; 350 ALR 191 at 196.

In oral submissions, counsel for the plaintiff abandoned any relief claimed against the Tribunal or the Federal Circuit Court. He accepted that the application to the Tribunal was made out of time and he conceded that the Tribunal was therefore correct to conclude that it had no jurisdiction to review the delegate’s decision. His focus was entirely upon the decision of the delegate, and the grounds for challenging that decision were succinctly reduced to two. The first, which only became apparent in oral submissions, was to assert that the delegate had committed a jurisdictional error by misconstruing cl 500.214 of Sch 2 to the Migration Regulations.  The second was that the delegate had committed a jurisdictional error by denying procedural fairness to the plaintiff.

The immediate obstacle to the plaintiff’s application is that his challenge to the delegate’s decision was filed more than nine months after the delegate’s decision. Hence, the plaintiff requires an order under s 486A(2) of the Migration Act 1958 (Cth) extending the 35 day time limit in s 486A(1), and an order under r 4.02 of the High Court Rules extending the respective two month and six month time limits in rr 25.02.1 and 25.02.2 for an application for a writ of mandamus and for a writ of certiorari.  In Re Commonwealth of Australia; Ex parte Marks[5], McHugh J said of the periods under the High Court Rules for applying for certiorari and mandamus that they

[5](2000) 75 ALJR 470 at 474 [16]; 177 ALR 491 at 496; [2000] HCA 67. See also Dimitrov v Supreme Court of Victoria (2017) 92 ALJR 12 at 17-18 [20]; 350 ALR 191 at 197.

“give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court.  In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.”

The plaintiff’s reason for his delay in coming to this Court are that he had diligently taken steps to seek relief in the Tribunal and the Federal Circuit Court first.  But the plaintiff must have been aware, at least from the time of the Tribunal’s letter on 23 January 2018 of the possibility that, as he ultimately accepted, the Tribunal had no jurisdiction to review the delegate’s decision.  Yet, another six months elapsed before this application was brought.

The exceptional circumstances that would permit this Court to consider an application of this nature after a delay of nine months are not entirely independent of the merits of the claim. Here, however, the plaintiff’s claim has no prospect of success. The plaintiff’s first ground essentially asserts that the delegate erred by misconstruing cl 500.214 of Sch 2 to the Migration Regulations, which requires an applicant to satisfy the following criteria:

“(1)The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).

(2)While the applicant holds the visa, sufficient funds will be available to meet:

(a)the costs and expenses of the applicant’s intended stay in Australia; and

(b)the costs and expenses of each member of the applicant’s family unit (if any) who will be in Australia.

(3)If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).

Note:For arrangements for the use of a computer program, see section 495A of the Act.

(4)The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).”

The plaintiff’s submission was only that the delegate erred by construing cl 500.214(3) as permitting evidence of financial capacity to be required by a computerised demand in the online system rather than by a written communication from the Minister or his delegate. But the plain words of cl 500.214(3), supported by s 495A of the Migration Act, permit a requirement that evidence of financial capacity, specified in an instrument under subclause (4), be provided, to be imposed by “use of a computer program”. There is no merit in this ground. The plaintiff also abandoned a ground for relief that challenged the delegate’s decision by alleging the invalidity of IMMI 17/012, an instrument made under clause 500.214(4). IMMI 17/012 specified the minimum requirements of financial capacity for which evidence is required to be provided.

The plaintiff’s second ground asserts that the delegate of the Minister denied the plaintiff procedural fairness by proceeding to decide the plaintiff’s application adversely to the plaintiff when the plaintiff had said the following in his online visa application on 29 September 2017, in a section entitled “Supporting Evidence” and instructing “Give details as to why the applicant will not be providing attachments prior to lodging this application”:  “I will attache [sic] after submit[ting] the application”.  The plaintiff also made the following statement in a section entitled “Genuine temporary entrant” and instructing “Give details to support the applicant’s ability to meet the criteria and ensure supporting documents are attached”:  “I will attached [sic] after submit[ting] the application”.

The only information provided by the plaintiff as to financial capacity in his visa application was the statement that “my parents have fund [sic] to support my education” to an approximate value of $26,000.  He did not attach any supporting documents at the time of application nor in the two months following the application.  As the Federal Circuit Court judge observed[6], on the same date that the plaintiff’s application was submitted, a letter had been sent back to the plaintiff by the Department, acknowledging receipt of the application and saying that the

[6]Patel v Minister for Home Affairs [2018] FCCA 2519 at [6].

“Department may make a decision on your application without requesting additional information.  You should provide us with all the information you feel is relevant.”

The delegate did not deny procedural fairness to the plaintiff by failing, in the two months before making his decision, to remind the plaintiff to attach the financial information that was required or by failing to enquire why further attachments had not been submitted.

I conclude, pursuant to r 25.09.3 of the High Court Rules, that the application does not disclose an arguable basis for the relief sought.  An extension of time for the plaintiff to bring the application would be futile.  The application for an order extending the time for compliance with the time limits in the Migration Act and the High Court Rules is refused.

The application is dismissed with costs.

AT 9.35 AM THE MATTER WAS CONCLUDED