Shetty v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] HCATrans 30

[2020] HCATrans 030

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M100 of 2019

B e t w e e n -

SHRAVAN KUMAR KRISHNA SHETTY

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 18 MARCH 2020, AT 9.38 AM

Copyright in the High Court of Australia

HIS HONOUR:   On 31 July 2019, the plaintiff filed an application for a constitutional writ and other relief.  For the reasons that I now publish, I would dismiss the application.  I direct that those reasons be incorporated into the transcript.

The orders are:

1.The application is dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

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

3.The name of the first defendant be changed to:  Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

I publish those orders.

The plaintiff applies in the original jurisdiction of this Court for constitutional writs in respect of each of:

1. a decision by the Administrative Appeals Tribunal (“the Tribunal”) to affirm a decision of a delegate of the first defendant not to grant the plaintiff a Student (Temporary) (Class TU) visa;

1. a decision by the Federal Circuit Court of Australia (“the Circuit Court”) to dismiss the plaintiff’s application for judicial review of the Tribunal’s decision; and

1. a decision of the second defendant to dismiss an application by the plaintiff for leave to appeal from the decision of the Circuit Court.

The first defendant’s delegate refused to grant the plaintiff a visa because the plaintiff did not satisfy cl 572.224 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). Clause 572.224 required that the applicant satisfy various public interest criteria, including the health criteria in criterion 4005 of Sch 4 to the Regulations. That the plaintiff had failed to satisfy the health criteria for the grant of a visa is clear, and as a result, the refusal of his application for a visa was inevitable. It cannot be said that the Tribunal erred in affirming the delegate’s decision on this basis. Neither the Circuit Court nor the second defendant erred in failing to take a view different to the Tribunal in this regard.

The plaintiff’s application does not disclose an arguable basis for the issue of constitutional writs in relation to any of the impugned decisions.

In any event, the plaintiff’s application to challenge the decision of the Tribunal is out of time[1].  The plaintiff’s application does not seek an extension of time or articulate any basis on which it might be granted.  In any event, the extension of time necessary to enable the application to proceed would be futile.

[1]See s 486A of the Migration Act. See also r 4.02 and r 25.02 of the High Court Rules 2004 (Cth).

Accordingly, pursuant to r 25.09.1 of the High Court Rules 2004 (Cth), the plaintiff’s application is dismissed. The plaintiff must pay the first defendant’s costs of the application. There should also be an order changing the name of the first defendant to: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

AT 9.39 AM THE MATTER WAS CONCLUDED