Plaintiff S49/2019 v Minister for Home Affairs & Ors

[2019] HCATrans 119

[2019] HCATrans 119

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S49 of 2019

B e t w e e n -

PLAINTIFF S49/2019

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 6 JUNE 2019, AT 10.22 AM

Copyright in the High Court of Australia

MR B.K. LIM:   If your Honour pleases, I appear for the first defendant in that matter.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, thank you, Mr Lim.

MR LIM:   I note that the plaintiff is not here but perhaps the matter might be called.

HER HONOUR:   Yes, indeed.  If the plaintiff were called please.

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Yes, thank you.  Yes, Mr Lim.

MR LIM:   I am in your Honour’s hands as to how to proceed.  I can make the following submissions.

HER HONOUR:   Mr Lim, I have had the benefit of reading your response to the application for a constitutional or other writ.  Do you seek to have me proceed and determine the matter?

MR LIM:   I do, your Honour.

HER HONOUR:   Yes.

MR LIM: There is just one matter that I do need to draw to the Court’s attention. It does not have a material bearing on the submissions that I have made or the issues that are in dispute but the version of the Migration Regulations that is extracted in the attachment to the Tribunal’s decision is not the correct version. The differences, as I have said, are not material but I should hand up the correct version of the Regulations and then explain to your Honour the minor differences.

HER HONOUR:   Yes, thank you.  I would be grateful for that, thank you.

MR LIM:   The AAT’s decision is the exhibit marked IHS1 in the plaintiff’s affidavit and the attachment begins at page 5 of 7 of that exhibit.

HER HONOUR:   Yes, I have that.

MR LIM:   The differences are minor.  In the first extracted regulation 602.213 in subclause (2), in effect paragraph (a) should be deleted.

HER HONOUR:   Yes.

MR LIM:   Similarly, in subclause (4), paragraph (a) should be deleted.  And in each of those subclauses what is subparagraph (b) just forms part of the text of the subclause without the subparagraphing.

HER HONOUR:   I see.

MR LIM:   It appears that that amendment was made with application to visa applications made on or after 19 November 2016 by the Migration Amendment (Temporary Activity Visas) Regulation 2016 (Cth).

HER HONOUR:   I see.

MR LIM:   As I have said, those paragraphs do not have any bearing on the issues in this case.

HER HONOUR: That is because the issues in this case concern regulation 602.213(3) and (5) bringing into operation Schedule 3, clause 3001(1).

MR LIM:   That is so.

HER HONOUR:   Yes, thank you.

MR LIM:   Otherwise I rely on my written submissions

HER HONOUR: This is an application for a constitutional writ which was filed on 4 March 2019. The plaintiff claims certiorari to quash orders made by Justice Nicholas in the Federal Court of Australia on 7 February 2019. In the alternative, the plaintiff seeks a declaration that section 33(4)(b) of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”) is invalid.

Allied to the claim for certiorari the plaintiff seeks leave to file an application for special leave to appeal from Justice Nicholas’ orders and that special leave to appeal be granted.  The plaintiff also applies for certiorari to quash the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 31 August 2017 affirming a decision of the Minister for Immigration and Border Protection (“the Minister”) refusing to grant the plaintiff a medical treatment visa.  Injunctive relief is also claimed to prevent the Minister, now the Minister for Home Affairs, from relying on or giving effect to the Tribunal’s decision.

Submitting appearances have been filed by the second and third defendants.  The plaintiff is unrepresented and has not appeared on the hearing of the application.

The plaintiff filed an affidavit, affirmed on 26 February 2019, in support of the relief claimed in the application annexing copies of the impugned decisions.

I pause to inquire, Mr Lim, do I take it the response has been served on the plaintiff?

MR LIM:   It has, your Honour.  On the Court file there should be an affidavit of service and perhaps I should formally read that.  It is an affidavit of Hervee Dejean, affirmed 10 April 2019.  May it please.

HER HONOUR:   I have found it.  Thank you, Mr Lim.

The response to the application was filed on 1 April 2019 and the following day the solicitor having the conduct of the matter on the Minister’s behalf caused a letter to be sent by standard post to the plaintiff enclosing a copy of that response.  The solicitor deposes to the fact that to his knowledge the letter was not returned to sender, nor has the solicitor received any communication from the plaintiff in relation to the response.  No reply to the response has been filed and the plaintiff has not appeared today.  In the response the Minister submits that there is no basis for the relief sought and invites the Court to dismiss the application.

The plaintiff is a citizen of Pakistan.  He arrived in Australia as the holder of a student visa which expired on 24 September 2015.  Some 20 months after that date, on 23 May 2017, the plaintiff lodged an application for a Medical Treatment (Visitor) (Class UB) visa.  At the time of making his visa application the plaintiff held a bridging visa A.

On 24 May 2017, a delegate of the Minister refused to grant the plaintiff the visa because the delegate was not satisfied that the plaintiff met the criteria for the visa set out in Schedules 2 and 3 to the Migration Regulations 1994 (Cth) (“the Regulations”). That decision turned on the following facts. The application was made on 23 May 2017. The plaintiff was in Australia at the time of making the application. The plaintiff’s last substantive visa ceased on 18 September 2015 and the plaintiff was born in 1977.

Under the Regulations, clause 602.213(3) of Schedule 2 was engaged because at the time the application was made the plaintiff was in Australia and did not hold a substantive temporary visa and that the requirements described in subclause 602.212(6) were not met in that one of those requirements is that the visa applicant has attained the age of 50 years. The engagement of subclause (3) made satisfaction of criterion 3001 in Schedule 3 of the Regulations mandatory.[1]

[1] Regulations, clause 602.213(3) and (5).

Criterion 3001(1) required that the application for the visa be validly made within 28 days after the relevant day.  The relevant day was the day on which the plaintiff ceased to hold a substantive visa[2] which was 24 September 2015.

[2] Regulations, clause 3001(2)(c)(i) of Schedule 3.

On 5 June 2017, the plaintiff applied to the Tribunal to review the delegate’s decision.  In a decision dated 31 August 2017 the Tribunal affirmed the delegate’s decision.  The plaintiff conceded before the Tribunal that his last substantive visa ceased on 24 September 2015, that he applied for the medical treatment visa on 23 May 2017 and at the time of his application he had not attained the age of 50 years.  The Tribunal found that the plaintiff did not meet the requirements for the grant of the visa and affirmed the delegate’s decision.

The Tribunal’s decision was dated 31 August 2017 at 3.37 pm.  The Tribunal’s decision is taken to have been made at the time.[3]  It appears that the decision was not communicated to the plaintiff until the following morning.  After the decision had been made but before it had been communicated to the plaintiff, the plaintiff sent an email to the Tribunal with submissions concerning how he would be treated were he to be returned to Pakistan.

[3] Migration Act, section 368(2)(b).

The plaintiff sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia. He contended that the Tribunal erred by failing to take into account his further submissions of 1 September 2017 which were said to provide “compelling reasons to satisfy [the] Schedule 3 criteria of the Regulations”. The Federal Circuit Court held that the Tribunal had no power to consider submissions that were received after it had made its decision[4] and, in any event, no discretion to waive the criteria stated in Schedule 3.

[4] Migration Act, section 368(2)(a).

The Federal Circuit Court noted that the plaintiff did not contest that he did not meet the mandatory criteria for the grant of the visa.  The Federal Circuit Court rejected a ground contending that the Tribunal should have obtained information under section 359A of the Act in relation to the expiry of the plaintiff’s student visa because under subsection (4)(b), the section did not apply to information that an applicant gave for the purpose of the application for review.

The Federal Circuit Court dismissed the application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) holding that the plaintiff had failed to establish an arguable case of jurisdictional error. Such a dismissal is an interlocutory decision for which leave to appeal is required.

The plaintiff applied to the Federal Court of Australia for leave to appeal.  Apart from an unparticularised assertion that the Federal Circuit Court erred in failing to hold that the decisions of the delegate and the Tribunal were tainted by jurisdictional error, the plaintiff’s proposed grounds of appeal contended that the Federal Circuit Court erred in dismissing each of the grounds of review advanced before it.  Justice Nicholas dismissed the application after assessing that none of the proposed grounds had any prospect of success and that no arguable error was disclosed in the primary judge’s reasons for decision.

The first ground on which the plaintiff seeks relief in this Court contends that Justice Nicholas misapprehended or disregarded the nature or limits of the functions or powers of the Federal Court under section 24 of the FCA Act. The second ground contends that “the Court acted partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the limits of its functions and powers”. It is also contended that Justice Nicholas treated the question of leave to appeal as though he were conducting a final hearing on the merits.

Together these complaints are misconceived.  Justice Nicholas declined to grant leave by application of the well‑established principles explained in Décor Corporation Pty Ltd v Dart Industries Inc.[5]  There is no reason to doubt Justice Nicholas’ assessment of the merits of the proposed grounds and, in any event, any error in this respect would be within jurisdiction.  Each of the two remaining grounds that the plaintiff seeks to raise in this Court has likewise been rejected by Justice Nicholas as unarguable.

[5] (1991) 33 FCR 397 at 398-400 per Justices Sheppard, Burchett and Heerey.

Moreover, as the Minister submits, in light of the uncontested facts the decision of the Tribunal was plainly correct.  The Federal Circuit Court was right to hold that no arguable jurisdictional error was disclosed and the Federal Court was correct to refuse leave to appeal from that decision.

It follows that absent any challenge to the uncontested facts there would be no utility in granting the constitutional writ relief sought and no possibility of success in any appeal to this Court were such an appeal available. In the circumstances, the proposed constitutional challenge to the preclusion of an appeal to this Court under the FCA Act does not arise. Not only is there no arguable basis for the claim to certiorari to quash the delegate’s decision but in circumstances in which the plaintiff has sought and failed to obtain the same relief in proceedings before the Federal Circuit Court it would be tantamount to an abuse of process to permit the plaintiff to simply start again in the original jurisdiction of this Court.[6]

[6] Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at 678, paragraphs 13 and 14.

The plaintiff submits that an order for costs should not be made against him in the event that his application is refused because he is a refugee applicant and has medical issues for which he applied to the Department for a medical treatment visa.  The Minister seeks his costs.  The matters raised by the plaintiff do not provide a principled basis to depart from the usual order that costs follow the event.  For these reasons, there will be the following order:  the application is dismissed with costs.

The Court will now adjourn.

AT 10.45 AM THE MATTER WAS CONCLUDED