Sarkar v Minister for Home Affairs & Ors

[2019] HCATrans 4

[2019] HCATrans 004

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S230 of 2018

B e t w e e n -

ABUL KHAYER SARKAR

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

Application for order to show cause

BELL ACJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 31 JANUARY 2019, AT 3.20 PM

Copyright in the High Court of Australia

MR A. MARKUS:   If your Honour pleases, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you, Mr Markus.  Mr Markus, the Registry has received an email communication from the plaintiff, which states relevantly, “I will not be able to attend my hearing, so I am sorry for inconvenient.”  Were you aware of that?

MR MARKUS:   Not until just before your Honour came onto the Bench.

HER HONOUR:   I see.  Mr Interpreter, could I ask you to wait for a moment.  We will have Mr Sarkar called outside the Court.

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Yes.  Mr Interpreter, thank you for your attendance.  It appears that the plaintiff will not be attending today, and you are excused.  But I do thank you for your assistance.

THE INTERPRETER:   Thank you.

HER HONOUR:   Well, Mr Markus, I should indicate that the email communication is dated 24 January 2019, and was transmitted at 11.12 am to the Deputy Registrar of the Sydney Registry.  It was in response to an email communication advising of today’s hearing date and notifying Mr Sarkar that a Bengali interpreter had been booked to assist at the hearing.

MR MARKUS:   I see.  Well, your Honour, I note that rule 25.09.3(a) of the High Court Rules provides that:

Without limiting rule 28.01, on hearing an application the Court or a Justice may, if the plaintiff fails to attend the hearing, dismiss the application on that ground or make any other appropriate order-

That is one way your Honour could proceed.  In my respectful submission, however, it is probably more desirable to proceed under paragraph (b) of the same rule which provides that if the application does not disclose an arguable basis for the relief sought, or is an abuse of the process of the Court, dismiss the application on that ground.

HER HONOUR:   Yes.

MR MARKUS:   Your Honour would have noted that this proceeding, which is also in the nature of an application for an order to show cause, is almost entirely identical in its nature anyway.  Not necessarily the fine

detail, but the relief sought and the grounds relied upon are eerily familiar, after the previous matter that your Honour dealt with.

HER HONOUR:   I had noted that, Mr Markus, and I have had the benefit again of the comprehensive and helpful submissions that the Minister has filed in the matter.  Do it take it those submissions were served on Mr Sarkar?

MR MARKUS:   Yes, your Honour.  If your Honour wishes, I can hand up a copy of an email and a letter.  I should just say that the submissions were served under cover of a letter dated 6 December 2018.  But the letter and the submissions were forwarded by email on the same day to the email address of the plaintiff.  I can hand this up if your Honour wishes to ‑ ‑ ‑

HER HONOUR:   I see.  There is no need for that.

MR MARKUS:   Yes.  Thank you, your Honour.

HER HONOUR:   Thank you, Mr Markus.  I do not think I need to hear further.

MR MARKUS:   Thank you.

HER HONOUR: This is an application for an order to show cause which was filed on 30 August 2018. The plaintiff claims certiorari to quash orders made by Justice North in the Federal Court of Australia on 10 August 2018. In the alternative, the plaintiff seeks a declaration that section 33(4B) of the Federal Court of Australia Act1976 (“the FCA Act”) is invalid. Allied to the latter claim for relief the plaintiff seeks leave to file an application for special leave to appeal from Justice North’s orders and that special leave be granted.

The plaintiff also claims certiorari to quash the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 April 2017 affirming the decision of the delegate of the Minister for Immigration and Border Protection (“the Minister”) refusing to grant the plaintiff a student visa.  And the plaintiff seeks injunctive relief to prevent the Minister, now the Minister for Home Affairs, from relying on or giving effect to the Tribunal’s decision.  The Tribunal has filed a submitting appearance.

The plaintiff is unrepresented and has not appeared on the hearing.  On 24 January 2019, the plaintiff notified the Registry by email that “I will not be able to attend my hearing so I am sorry for inconvenient”.  There is no explanation of the plaintiff’s inability to attend Court and the Minister submits, and I accept, that the appropriate course is to proceed with the hearing and to determine the Minister’s submission which is that the application should be dismissed because it does not articulate an arguable basis for any of the relief claimed, and in certain respects it is an abuse of the process of the Court.

The background may be shortly stated. The plaintiff is a citizen of Bangladesh who arrived in Australia in 2007. In October 2013, the plaintiff lodged an application for a student visa. In support of his application the plaintiff provided certain financial documents. Public interest criterion 4020(1) set out in Schedule 4 to the Migration Act 1958 applies to the grant of the visa for which the plaintiff applied. Satisfaction of this criterion requires that:

There is no evidence before the Minister that the applicant has given, or caused to be given . . . a bogus document or information that is false or misleading in a material particular in relation to:

(a)      the application[1]

[1] Migration Regulations 1994 Schedule 2, clause 572.224 and PIC 4020(1).

In May 2014, the Department of Immigration and Border Security invited the plaintiff to comment on adverse information, namely, that the financial documents that he had furnished in connection with his application were fraudulent.  The plaintiff responded to the invitation denying that he had provided bogus or misleading documents and providing further evidence of his financial position.

On 14 June 2014, the delegate refused to grant the plaintiff the visa on the basis that the plaintiff did not meet Public Interest Criterion 4020 and the delegate was not satisfied that there were “compelling or compassionate circumstances that affect the interests of Australia” such as would justify waiver of the criterion.

On 4 July 2014, the plaintiff applied to the Tribunal to review the delegate’s decision.  Evidence before the Tribunal included a letter from the plaintiff’s employer stating that the plaintiff’s departure from Australia would affect the business “tremendously”.

On 4 February 2016, the Tribunal affirmed the delegate’s decision.  That decision was set aside for jurisdictional error by the Federal Circuit Court of Australia and the matter was remitted to a differently constituted Tribunal.

On 18 April 2017, the reconstituted Tribunal affirmed the delegate’s decision.  The Tribunal found that there was evidence before the Minister that the plaintiff had given, or caused to be given, to the Department a bogus document in relation to his visa application and that any temporary impact that his departure from Australia may have on his employer’s business did not rise to the level of a compelling circumstance.

Judge Driver dismissed an application for judicial review of the Tribunal’s determination under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001, holding that the plaintiff’s case did not demonstrate an arguable case of jurisdictional error.  Such a dismissal is an interlocutory decision for which leave to appeal is required.

Justice North in the Federal Court of Australia dismissed the plaintiff’s application for leave to appeal, holding that each of his proposed grounds of appeal was bound to fail.

The first ground on which the plaintiff seeks relief in this Court contends that Justice North misapprehended or disregarded the nature or limits of the functions or powers of the Federal Court under section 24 of the Federal Court of Australia Act in that his Honour treated the determination of leave to appeal as though he was conducting a final hearing on the merits.

The ground is misconceived.  Justice North declined to grant leave, applying the well‑established principles collected in Decor Corporation Pty Ltd v Dart Industries Inc.[2]  There is no reason to doubt Justice North’s assessment of the merits of the proposed grounds and, in any event, error in this respect would be within jurisdiction.

[2] (1991) 33 FCR 397 at 398 to 400.

The plaintiff also seeks to raise in this Court a ground which was rejected as unarguable.  To permit the plaintiff after his unsuccessful application for judicial review before the Federal Circuit Court to simply start again in the original jurisdiction of this Court would be tantamount to an abuse of process.[3]

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

The application does not articulate any ground in support of the claim for declaratory relief in respect of section 33(4B) of the FCA Act, nor is there any submission directed to that claim for relief and, in the circumstances, it is unnecessary to say anything further about the claim. For these reasons, there will be the following order: application dismissed with costs.

Thank you for your assistance, Mr Markus.

MR MARKUS:   If the Court pleases.

HER HONOUR:   Would you adjourn the Court.

AT 3.35 PM THE MATTER WAS CONCLUDED