Shoeib v Minister for Immigration and Border Protection & Anor

[2015] HCATrans 34

[2015] HCATrans 034

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M125 of 2014

B e t w e e n -

MOHAMMED ABDUL HAI SHOEIB

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 17 FEBRUARY 2015, AT 10.41 AM

Copyright in the High Court of Australia

MR M.A.H. SHOEIB appeared in person.

MR R.C. KNOWLES:   Your Honour, if it pleases the Court, I appear for the first defendant in this matter.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, again, Mr Shoeib, you have been present in Court.  You have heard that I will hear what the Minister says then it will be your turn to tell me what answer you make.  Do you understand all that?

MR SHOEIB:   Yes.

HIS HONOUR:   Thank you very much.  Yes, Mr Knowles.

MR KNOWLES:   Thank you, your Honour.  Again, I refer to the fact that the Minister has filed and served an outline of submissions on 12 February this year, and I understand that the plaintiff has received a copy of the outline.

HIS HONOUR:   Yes.

MR KNOWLES:   In this case, your Honour will have seen that the application appears to take issue with, at least expressly, the Federal Court order that was made by Justice Tracey in which his Honour dismissed the appeal of the plaintiff for non‑attendance, but otherwise it seems to take issue with the initial decision by the Minister in respect of ‑ or the Minister’s delegate, I should say – in respect of the visa application, that being a visa application for a student visa.

For the sake of completeness, the Minister’s submissions also deal with the intermediate steps that occurred in the history of this matter, being the decision of the Migration Review Tribunal and also the decision made by the Federal Circuit Court when the plaintiff sought judicial review of the Tribunal’s decision.

The application for a student visa was refused, essentially because the plaintiff did not comply – was found not to comply with a particular criterion which required that he had complied substantially with conditions applicable to any past visa which he had held, in particular, the last substantive visa which he had held.  In this case, the delegate and the Tribunal found that the plaintiff had failed to comply substantially with a particular condition which applied to a previous student visa, the most recent student visa held by him prior to his application the subject of those decisions.

That particular condition, which is set out in item 8202 of Schedule 8 to the Migration Regulations, required among other things that the plaintiff be enrolled in a relevant course of study at all times.  The delegate and the Tribunal upon review both found that the plaintiff had failed to comply substantially with that condition because he could not show that he was enrolled for a period of some seven months during the life of the previous student visa held by him and, on that basis found that he had – or could not meet the visa criterion which required him to have complied substantially with the conditions applicable to his last student visa.

HIS HONOUR:   Now, as to that, have you looked at the outline of submissions which the plaintiff has filed on 3 December?

MR KNOWLES:   Yes, your Honour.

HIS HONOUR:   In that and elsewhere in the papers the plaintiff refers to matters of his health at various times.

MR KNOWLES:   Yes.

HIS HONOUR:   What do you say I should make of those issues?

MR KNOWLES:   Yes.  What I would say about that, your Honour, is that those matters were matters which the Tribunal was required to have regard to in relation to coming to an assessment as to whether or not the plaintiff met the relevant visa criterion as to substantial compliance with conditions applicable to his last student visa, and the Tribunal did take into account the issue of the plaintiff’s health and had regard to that in coming to its finding on the facts that there had not been substantial compliance with the condition, particularly the condition which related to enrolment in a course of study.  So that was certainly a matter which, having been raised by the plaintiff, was before the Tribunal and needed to be taken into account.

HIS HONOUR:   The Tribunal dealt with those matters I think at really its paragraphs 19 through to I think 22, and probably including also paragraph 24 where the claims are recorded.

MR KNOWLES:   Yes.

HIS HONOUR:   And then where do I find ‑ ‑ ‑

MR KNOWLES:   Yes, your Honour will see that in terms of the findings and reasons the Tribunal then goes on to refer to the evidence before it again in paragraphs 25 and following but, in particular, paragraph 27 refers to a letter from the plaintiff’s migration agent to the Department which set out certain claims, and then evidence in paragraph 28 of the Tribunal’s decision is referred to in the nature of invoices and receipts in respect of medical consultations and the like.  Similarly, at 29 there is a reference to the absence of hospital records in support of a claim concerning an attendance at a hospital and so on.  So there is consideration of all of this evidence.

HIS HONOUR:   Yes.

MR KNOWLES:   At paragraph 32 your Honour will see that the Tribunal gave very little weight to documents from a particular doctor about homeopathic treatment which the plaintiff claimed to have received.  Then at paragraph 33 there is consideration of the plaintiff’s claims about the extent of his condition and his purported inability to walk at times.  Ultimately, that goes on and it is really the core issue that the Tribunal considers in its findings and reasons as to whether or not there is some evidentiary basis to say that there was substantial compliance with the condition that applied to the previous student visa.

The Tribunal came to the view, as your Honour will see at paragraphs 37 and 38 and following, that it was not satisfied that there had been substantial compliance and essentially it accepted that there had been certain medical conditions that the plaintiff had suffered from, but it did not accept that those conditions were so unwell such that he could not remain enrolled in a course or that somehow the medical condition affected his ability to remain enrolled during the seven‑month period which was the subject of a lack of evidence of any enrolment.

HIS HONOUR:   Yes.

MR KNOWLES:   So that was really the finding that was made by the Tribunal.  It was, in my submission, one that was open to the Tribunal on the material before it and it is really a question of fact for the Tribunal to determine.  In terms of the relevant test, that is, what goes to substantial compliance with a visa condition, in my submission, the Tribunal has had regard to all the issues that it ought to have had regard to, particularly those that were raised by the plaintiff in respect of his medical condition and it has arrived at findings of fact which were open to it on the material before it.

HIS HONOUR:   Yes.

MR KNOWLES:   So that was really the substance of the Tribunal’s analysis, and then the plaintiff sought review before the Federal Circuit Court, and as your Honour will have seen, that application for judicial review was dismissed by Judge Riethmuller on 8 July 2014.  There was then an appeal to the Federal Court.  The appeal came on for hearing on

6 November last year.  The plaintiff must have been aware of the hearing date, given that there was a medical certificate submitted to the Federal Court seeking an adjournment of that time and that is the time for the hearing.

The plaintiff did not attend the hearing and Justice Tracey took into account the medical certificate, found that it was not an adequate explanation for the failure to appear, and dismissed the application – sorry, the appeal, I should say, pursuant to section 25(2B) of the Federal Court of Australia Act 1976. I note that Justice Tracey also indicated in reasons for judgment delivered on the same day, that is 6 November last year, that it was open to the plaintiff to apply to the Federal Court to have that order set aside and then to effectively reinstate the appeal if need be, but at the present time that does not appear to have occurred.

That issue goes to the ancillary submission made by the Minister in respect of abuse of process, but as I indicated earlier in the other matter in which I have appeared before your Honour today, the primary submission made by the Minister is that the application insofar as it relates to a decision of the Minister’s delegate or the Tribunal is out of time, the issues that arise in respect of any challenge to that decision do not disclose any proper basis for judicial review.  The matter as it comes before this Court is without merit, in the Minister’s submission and, as such, no extension of time ought to be granted.

HIS HONOUR:   Yes.  Thank you, Mr Knowles.  Yes, Mr Shoeib.

MR SHOEIB:   Thanks for giving me an opportunity to come back again to explain myself.  Let me start by saying that the enrolment I am sitting and I have been going through the courts and everything, it reminds me about the final day of judgment where we all will be sitting on one side and the lord of the worlds will be judging us, so thanks for giving me that example.  It reminds you about your religion.  And thanks for the Minister – representative of the Minister, that he has made my job further easy and he explained everything which I know and he knows, first from the records that we have in our hands. 

When my Federal Circuit Court decision was dismissed I decided to go for Federal Court ‑ Federal Circuit Court Melbourne registrar ‑ sorry, when my FCC was dismissed in FCA, Federal Circuit Court, I immediately decided myself that I am going to go for High Court and when I was here the respected Registrar suggested me, like you can go for both options, like if you want to have a special leave appeal or for a show cause.

So I was a bit confused and I went back to my migration agent and I spoke to him and I was still so confused that I do not know what to do.  And I received quite a few letters from the Minister’s side that you can choose either of those things.  But like on 27 January I wrote to them, like I am going to file a special leave appeal very soon because I was discussing with quite a few lawyers to, you know, have confidence that ‑ which option should I choose.

But on 2 February I received a letter that I have already got a hearing in the High Court on 17th of this – which is today.  So I was a bit confused, like how can I now choose to appeal, special leave appeal, or to go for a show cause hearing in the High Court, so I just came here to ask you for time for applying me for a special leave appeal today.

HIS HONOUR:   That is not an application that I will deal with today.  There are time limits fixed for seeking special leave, and there are some decisions which cannot be the subject of an application for special leave.  Sitting here I cannot give you advice about whether this is or is not a decision that could be the subject of application for special leave.  All I can do is deal with the application I now have.  So I understand what you have told me.  For the moment let us focus on what we have in front of us.

MR SHOEIB:   Okay.  Thank you very much for that.  And recently I was at the Federal Court here, which was 6 November, which I did not attend there because of the illness, and I have submitted a medical certificate from my doctor, like local doctor from St Kilda East.  This has been the case with me since the beginning of this issue, like whatever I submitted from the doctors, the courts and the tribunals have never given any weight to these things, and I could not understand why they ask you in the first place to present any medicals or anything that you want to present, and when you bring those things to the court or to the Tribunal they do not give any weight.  And I could not able to understand how they decide that this is not a proper – this medical certificate does not have any weight to be given to the plaintiff.

As the respected representative said, that it has been six or seven months that I was not studying before applying for this visa.  It was only six months and within those six months there were like two months of holidays and like Christmas season, and I have already explained this to the Tribunal and to the Federal Circuit Court, that it was not in my hand to – it was not in my ability to go to the college and to attend.  But as soon as I got a – not even a letter, a call, from the college that you have to come and see us and I went and I was – they were asking me to pay the fees, which I brought with them – brought with me to pay the fee and they said ‑ when I arrived at the college the attendant on the desk, she said, like your…..has already been cancelled and you cannot even, you know, see any management staff but you have to wait for the immigration to contact you.

And I was really shocked, like before I was suffering with hay fever and also this hay fever ‑ I mean, people might think that hay fever is very small thing for some people, it might be, but as I was asthma patient in my childhood and my mother, she help me to overcome this disease and by 16 or 17 of my age I was…..  But when I came to Australia it was a really different environment and the first year was quite difficult because it was 2008 summer and I could remember like I was sitting in the railway station and my nose started to bleed and I could not understand why this is happening to me, and later on I understood that this was intensive heat, it was around 40, 42 degrees on those days.

Then I started – that was the summer I went through, but the next winter was so harsh on me, like every alternate year I get this hay fever and I go to the doctors.  Before I used to live in Footscray and I did not have any medical certificates from them, but I moved to St Kilda in one year, then from then on I only went to one doctor, which was Mr Blatt, and he has been looking after me for like two or three years, or four years if I am not mistaken, and so he looked after me and the hay fever was so harsh on me, like I could not even breathe and in some intense winter days I could not even breathe and Mr Blatt used to look after me and he used to give me the medicine, but that does not work for me.

And when I was back in India my family doctor was a homeopathic so I contacted him from here and he understood and he has around like a thousand patients, or more than a thousand patients here in Melbourne, so he said, I know what you are talking about and your background is ‑ like you are an asthma patient before so I know what to do.  So he prescribed me some medicine which my friends brought, who were coming from India, and I used it for every year, like every year in winter I used those things and still I have got a few at my home which I use if I get a sinus attack or a hay fever attack regularly.

So that helped me a lot and I thought when the Tribunal asked me to show some evidence I went back to this doctor, Mr Blatt, and also I contacted my family doctor back in India, which my father said he is out of station, it require one or two days’ time to come back and give you a medical certificate, which he did….  I have submitted those medical certificates from the doctor here and from doctor overseas, but again the same question stands, honourable Judge, that why the Tribunal, Minister and the judge in Circuit Court did not give any weight to these things and they said we do not find any evidence that you could not attend the college for this many days.  And that is the only argument I have with them that is in this.

Everything the person have already explained is exactly the same as – I came here like leaving my father, his business and my studies which was – like I was doing my accounting in first year, just to do a course in printing and graphic designing because our business back in India is publishing books and distributing.  So I left my father, his business and my studies to come here and to study that, and in the first year even though the summer went past very quickly, like two or three months was very hard for me when I arrived, and I completed my first course in good merits and I started doing frontline management which my college have advised me to do because it help you in managing your business if you go – when you go back to your home.

I said, okay, and I changed my course, like I used – I have chosen two courses, printing and graphic designing and multimedia, but I quit multimedia and did my frontline management which I completed, around like 75 to 80 per cent of that.  Then some wrong decisions made by myself, like when I saw the country here and how people live here I decided, you know, like if I could stay here and if I get my…..then it will be much better for me, like I will be citizen of this country and the other so I took advice from some of the migration agents which were not, in my case, good enough and they said why do you not change it to a mechanical field, it means that it could help you to get your…..so that was a wrong decision made by me.

Then I went back to this migration agent and I started doing like automotive courses in MITT, Melbourne Institute of Technology.  And I completed my first year then I have to complete further studies, like for six months of course and I applied for this visa and I got this visa, and this was automotive – yes, automotive course.  And this course, I attended like for a few days and then later on I could not go to the college because of the sickness, as I have already explained.

And soon after when I applied for the further visa the Minister has decided not to grant a visa because I have not complied with the previous visa, and that was absolutely right, but the reason I have given to the Tribunal and to the Circuit Court, they have not given any weight to those things and made a decision very quickly, and I do not know, how can a judge can sit in and decide, like this would not be given any weight.  That is what is making me a bit confused, like – so I have decided to come here and to take advice from – not advice, but seeking that here I could get some weight onto those medicals I have submitted before.

HIS HONOUR:   Yes.

MR SHOEIB:   And last thing that – recently I have been to Mr Blatt, Dr Blatt, and he was recording my records so I asked him, like can you give me my records so that if I need it in future I could show it in the court, so he

normally writes it down in his personal notes – I have taken a Xerox if you want to have a look at those.

HIS HONOUR:   Well, show Mr Knowles what you want to show me first.  Show counsel for the Minister what you want to show me.  Yes, is there any reason why I should not see it, Mr Knowles?

MR KNOWLES:   Save for the fact that in the Minister’s submission it is not relevant, but subject to that qualification there is no objection to it being handed up to your Honour.

HIS HONOUR:   Yes, perhaps if you would hand it up then.  Thank you very much.

MR SHOEIB:   Sorry, those are the ‑ ‑ ‑

HIS HONOUR:   Just a moment.  Yes, they will be marked exhibit A - copied medical records relating to plaintiff.

EXHIBIT:     Exhibit A…..Copied medical records relating to plaintiff.

HIS HONOUR:   Yes, do go on.

MR SHOEIB:   Sorry about those – that was doctor’s record which he write down with his own hand so ‑ ‑ ‑

HIS HONOUR:   Yes, I understand that.  Yes.

MR SHOEIB:   At the end, honourable Judge, I only have one request, like I want you to give some time and to understand what I am going through, and like the evidence I have shown in everywhere since the beginning were not any kind of dodgy thing or anything like that.  Everything I – I trusted the system here and still trust the system here and that is the reason why I have always applied – applied my best ability to provide the right evidence and everything, so that in future even if I do not get any justice here I might get justice on the day of judgment, that is what I was thinking.  So that is all I have to say.

HIS HONOUR:   Thank you very much, Mr Shoeib.

MR SHOEIB:   Thank you.

HIS HONOUR:   On 9 July 2012, the plaintiff applied for a Student (Class TU) visa.  On 16 August 2012, a delegate of the Minister refused the application.  Refusal was founded on what were said to be failures to comply with a previously current visa.  More particularly, the refusal was founded on what was said to be a study gap which was insufficiently explained. 

Being dissatisfied with the delegate’s refusal to grant him the visa which he sought, the plaintiff applied to the Migration Review Tribunal for review of the decision not to grant him a Student (Temporary) (Class TU) visa.  On 24 October 2013, the Tribunal affirmed the decision of the delegate.  In its decision the Tribunal gave close attention to the explanations which the plaintiff had given it for the apparent gap in his enrolment in an approved course of study.  In particular, the Tribunal gave close attention to the issues which the plaintiff had said he had had with his health.  The plaintiff described in some detail the illnesses which he had suffered during the relevant period and the various forms of treatment which he had sought and received in order to deal with what he described as very debilitating ill health.

The Tribunal, having considered those matters, reached its conclusion that it was not satisfied that the plaintiff had complied substantially with the conditions of his earlier visa.  The plaintiff does not allege, and so far as I can observe, it is not shown that in determining that issue the Tribunal made any error of law.  Rather, as I have sought to emphasise, the Tribunal gave close attention to the detail of the issues which the plaintiff had raised with it.

The plaintiff then applied to the Federal Circuit Court for judicial review of the decision of the Tribunal.  That court concluded that nothing raised by the plaintiff in his application or in his submissions indicated any judicially reviewable error on the part of the Tribunal and, accordingly, dismissed the plaintiff’s application.

The plaintiff appealed against the orders of the Federal Circuit Court to the Federal Court of Australia.  That appeal was called on for hearing on 6 November 2014 but the plaintiff, did not attend.  The plaintiff had submitted a medical certificate certifying that he was medically unfit for work from 5 November 2014 to 6 November 2014 inclusive.  Justice Tracey of the Federal Court, considering that material, did not accept that the plaintiff was prevented by any medical condition from attending the hearing and determined that the appeal should be dismissed for non‑appearance.

The plaintiff then applied to this Court by application filed on 3 December 2014 for an order to show cause directed to the Minister and to the Federal Court.  The central complaint which the plaintiff made in the course of his oral submissions in this Court was that insufficient attention had been given by the Tribunal and later by the courts to the medical conditions from which he has been suffering at relevant times.

I have looked carefully at the decision of the Federal Circuit Court and the Tribunal and detect no jurisdictional error in either of those decisions.  As for the decision of Justice Tracey dismissing the appeal for want of appearance, it would not be right for this Court to deal with the accuracy of that conclusion through the mechanism of an application for an order to show cause.  At the least, there would be sound discretionary reasons to refuse to grant the relief which the plaintiff would seek against the Federal Court of Australia while procedures provided for by the Rules of the Federal Court of Australia remain unavailed of.

Whether or not those conclusions are reason enough to reject the plaintiff’s application there is, in my opinion, a more fundamental reason to which attention should be drawn.  As I have indicated, examining as best I can both the decision of the Migration Review Tribunal and that of the Federal Circuit Court, I detect in neither decision any arguable case of error.  That being so, the present proceeding, or that proceeding as reformulated in this Court, would enjoy no prospect of success.  Accordingly, the application stands dismissed.  Mr Knowles.

MR KNOWLES:   Yes, your Honour, the Minister would seek the usual order that costs follow the event.

HIS HONOUR:   Mr Shoeib, are you able to answer the claim for costs?

MR SHOEIB:   No.

HIS HONOUR:   Anything you wish to say?

MR SHOEIB:   No.

HIS HONOUR:   No.  With costs.

MR KNOWLES:   If your Honour pleases.

HIS HONOUR:   Very well, adjourn the Court.

AT 11.19 AM THE MATTER WAS CONCLUDED