Singh v Minister for Immigration and Border Protection

[2018] HCATrans 42

[2018] HCATrans 042

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M179 of 2017

B e t w e e n -

SANDEEP SINGH

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Application for order to show cause

GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON WEDNESDAY, 7 MARCH 2018, AT 10.40 AM

Copyright in the High Court of Australia

MR C.M. McDERMOTT:   Your Honour, I appear for the defendant in this matter.  (instructed by Sparke Helmore)

HIS HONOUR:   Thank you.

MR McDERMOTT:   I cannot see the plaintiff in Court.

HIS HONOUR:   Thank you, Mr McDermott.  Have the matter called outside the Court in Melbourne and in Canberra, please. 

COURT OFFICER:   No appearance in Canberra, your Honour.

COURT OFFICER:   No appearance in Melbourne, your Honour. 

HIS HONOUR:   Thank you.  Mr McDermott, what material should I take into account in this application?

MR McDERMOTT:   Your Honour has the application for an order to show cause of the plaintiff, including his affidavit and his outline of submission and his summons.  There is also an affidavit of my instructor, Oliver David Young, which was affirmed and filed in this Court on 27 February.  That affidavit exhibits a copy of the application for extension of time and leave to appeal in the Federal Court of Australia.

HIS HONOUR:   Yes, thank you.

MR McDERMOTT:   I seek to read that affidavit.  Your Honour, there is then a second affidavit of my instructor, Mr Young, which was filed in the High Court Registry yesterday.  I need to identify an error in relation to that affidavit.  At paragraph 3 in that affidavit it is purported to exhibit:

a copy of email correspondence from the defendant to the plaintiff serving a copy of the defendant’s submissions and affidavit filed with the High Court of Australia –

Your Honour, there is no email correspondence in existence, so that statement should not be read.  What should be before your Honour but is not on affidavit material is a copy of correspondence sent from my instructing solicitor’s office to the plaintiff’s home address which provided the submissions and the first affidavit of Mr Young.  That was dated 27 February.

HIS HONOUR:   Where do I find that?

MR McDERMOTT:   I am hopeful that there is a body in Canberra that is able to hand that up to you, from Sparke Helmore, and that should be in front of the first part of the list of authorities.  I am very hopeful that that is before your Honour.  If not, I might need to provide a copy to the Registry here in Melbourne.

HIS HONOUR:   It is not.  What I propose to do is stand this matter down and I will deal with the fourth matter in the list and come back to you.

MR McDERMOTT:   If the Court pleases.  Thank you, your Honour.

AT 10.43 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 10.53 AM:  

MR McDERMOTT:   Thank you, your Honour.  I apologise for necessitating that break in transmission.  Your Honour, I am hopeful, should now have in Canberra a copy of correspondence from my instructing solicitors dated 27 February to the plaintiff and his address for service.

HIS HONOUR:   Yes. 

MR McDERMOTT:   That correspondence indicates that today’s listing was to occur and it also indicated the defendant’s position in the event that the plaintiff did not appear today.

HIS HONOUR:   Yes.

MR McDERMOTT:   Returning to Mr Young’s second affidavit, your Honour, I do not read paragraph 3 and the exhibit purported to be associated with that paragraph.

HIS HONOUR:   Yes.

MR McDERMOTT:   But I do read the balance of the affidavit, and in particular paragraph 4 and the exhibit, which is an email from a paralegal at Sparke Helmore to my instructing solicitor advising that she had left a voicemail for the plaintiff advising of today’s listing.

HIS HONOUR:   Thank you.

MR McDERMOTT:   The only other matter that your Honour should have before you is of course the correspondence from this Court identifying that today’s listing would occur.

HIS HONOUR:   Yes.  Thank you.  I will admit the letter from Sparke Helmore to the plaintiff of 27 February 2018 into evidence and mark it exhibit 1. 

EXHIBIT:Exhibit 1…..letter from Sparke Helmore to the plaintiff of 27 February 2018

Thank you.  I have looked at your written submissions and I do not need to hear from you further.

MR McDERMOTT:   If the Court pleases.

HIS HONOUR: On 7 December 2017, the plaintiff, a national of India, filed an application for an order to show cause in the original jurisdiction of this Court in which he seeks constitutional writs directed to the Minister for Immigration and Border Protection. The application to show cause was filed outside the time for filing pursuant to section 486A of the Migration Act 1958 (Cth) and rules 25.06.1 and 25.07.2 of the High Court Rules. The plaintiff therefore requires an extension of time under both the Act and the Rules if the matter were to proceed.

The plaintiff filed at the time of filing the application both a summons and an outline of submissions.  I propose to take the plaintiff’s outline of submissions into account as I have also taken into account his affidavit evidence and affidavits filed on behalf of the Minister. 

The plaintiff has not appeared at the hearing before me today.  On the material before me I am satisfied that he has had adequate notice of the hearing.  I proceed then to the merits of the application.

The plaintiff arrived in Australia in June 2010.  On 17 September 2013, he applied for a Skilled (Provisional) (Class VC) visa.  In January 2014, the plaintiff was asked to provide evidence that he fulfilled the criteria to be met for the grant of a visa.  Relevantly, the plaintiff was asked to provide evidence that he had competent English and that his skills had been assessed as suitable for the nominated occupation.  No evidence was received from the plaintiff in response to these requests and a delegate of the Minister refused the application on 13 May 2014.

On 17 December 2014, the Migration Review Tribunal affirmed the delegate’s decision based on findings that the plaintiff did not meet the requirements for the grant of a visa under the relevant provisions of the Act and accompanying regulations. 

By an application filed on 18 December 2015, the plaintiff applied to the Federal Circuit Court under section 477(2) of the Act for an extension of time within which to seek judicial review of the Tribunal’s decision.  The grounds relied on by the plaintiff in the Federal Circuit Court application were as follows:

“(1)     the decision made by the second respondent is not natural;

(2)      procedural fairness;

(3)      my migration agent did not inform me about my hearing in the Administrative Appeals Tribunal and I did not get any chance to prove myself.”

The application was heard and determined by Judge McNab on 31 March 2017.  His Honour dismissed the application on the basis that there was no arguable case that the Tribunal had failed to comply with its procedural fairness obligations in Part 5, Division 5 of the Act.  Judge McNab found that the Tribunal had written to the plaintiff on 21 October 2014 inviting him to give oral evidence and present arguments at the hearing.  The plaintiff’s migration agent completed and returned a response to the hearing invitation signed by the plaintiff which stated that he did not intend to appear at the hearing.

On 1 December 2014, the Tribunal sent a further letter to the plaintiff, inviting him to respond to adverse information it had received to the effect that Trades Recognition Australia did not have any record of his skills assessment application.  The Tribunal did not receive a response to this invitation before it made its decision.  His Honour therefore determined that the Tribunal had given the plaintiff the opportunity to present his case and to respond to matters which were adverse to him.  His Honour also held that there was no arguable basis for the plaintiff to demonstrate that he could meet the requirements for the grant of a visa:  see Singh v Minister for Immigration & Anor [2017] FCCA 947.

The plaintiff then sought to appeal from the decision of the Federal Circuit Court to the Federal Court of Australia.  Justice Pagone dismissed the plaintiff’s application on the ground that the Federal Court had no jurisdiction to hear an appeal from the Federal Circuit Court’s order under section 477(2) refusing to grant an extension of time within which to seek judicial review:  see Singh v Minister for Immigration and Border Protection [2017] FCA 1316.

By the application to show cause now before me, the plaintiff seeks constitutional writs and ancillary relief founded on allegations that the decision of the delegate of the Minister was unlawful. The application also seeks, as would be necessary were it to proceed, as I have already indicated, an order for an extension of time under section 486A of the Act.

The gravamen of the plaintiff’s contention is that the delegate of the Minister acted unlawfully in refusing to grant the visa.  The plaintiff argues that the application was invalid because he did not personally apply for it.  His migration agent did so without his consent, so he submits.  He further contends that the delegate failed to wait for responses from the plaintiff about his visa application. 

The evidence before me is insufficient in its detail to disclose a seriously arguable case that the application was in fact lodged by the plaintiff’s agent without his authority or that the delegate of the Minister failed to afford procedural fairness.  Moreover, the delay in making the application is unexplained.  Those circumstances, or either of them, would be enough to lead me to dismiss the application.

The more serious difficulty with the application, however, is that the argument which the plaintiff seeks to put to this Court is one which could and should have been made in the application for judicial review brought in the Federal Circuit Court.  The argument was not raised by the plaintiff in his application for review in the Tribunal or in his grounds of appeal to the Federal Circuit Court.  No reason has been proffered in his affidavit or in his submissions as to why the claim was not raised on either of those two previous occasions.

The application is governed by the principles I set out in Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 297 ALR 560. Applying those principles, the application to this Court constitutes an abuse of process and should be, on that ground, dismissed. The orders I make are as follows:

1.The application for an order under section 486A(2) of the Migration Act is refused.

2.The application for an order to show cause is dismissed.

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

Thank you, Mr McDermott, I think our business is done.

AT 11.05 AM THE MATTER WAS CONCLUDED