Singh v Minister for Immigration and Border Protection & Anor

[2015] HCATrans 126

[2015] HCATrans 126

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M21 of 2015

B e t w e e n -

HARPAL SINGH

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

Application for order to show cause

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 21 MAY 2015, AT 9.29 AM

Copyright in the High Court of Australia

MR H. SINGH appeared in person.

MR R.C. KNOWLES:   Your Honour, if it pleases the Court, I appear for the first defendant.  (instructed by Clayton Utz Lawyers)

HIS HONOUR:   Mr Singh, I have read your papers.  I see the nature of your application.  Is there anything that you wish to say in addition to what you have concluded in your documents?

MR SINGH:   Yes, I want to say something.

HIS HONOUR:   Now is the time, Mr Singh.

MR SINGH:   Thank you.  Actually, when I was - came in Australia I did not know I was stuck in the future immigration rule regulations.  So in this country I finished my study on a little bit delay and that is why I could not – I stuck in that…..of immigration.  I am ready to go back my country but my future is dark there.  But whatever is my debit regarding to Australian Government so I got to pay all like tax money and hearing…..fees, everything.  So for these things I needed time to pay and I want to stay here a bit in Australia, more like a six month.  I want to clear everything with what I have to pay Australian Government and Taxation Office.  So I humbly request to Judge please give me a little bit extension to stay in Australia.  After that I will go back my country.  That is it.  Thank you.

HIS HONOUR:   Thank you, Mr Singh.  Mr Knowles.

MR KNOWLES:   Thank you, your Honour.  Can I ask whether your Honour has received and had an opportunity to consider the first defendant’s written outline of submissions?

HIS HONOUR:   I have, thank you very much.  Is there anything you want to add to it?

MR KNOWLES:   There is one thing that I should make clear.  It is an oversight on my part.  This case, insofar as there was a Federal Court decision, was not one in which the ability to apply for special leave was available to the plaintiff.  I just make that clear.  That is contrary to what might otherwise be suggested in subparagraph 21(a) but, save for that point, that does not alter the ultimate position that is set out in those submissions on behalf of the first defendant.  Beyond that, there is nothing that I wish to add to the written submissions, your Honours.

HIS HONOUR:   Thank you very much, Mr Knowles.

This is an application to show cause why certiorari should not go to quash the judgment and orders of her Honour Justice Gordon of 16 February 2015 refusing an extension of time for the plaintiff to appeal from the orders of the Federal Circuit Court constituted by Judge Hartnett dismissing an application for judicial review of a determination of the Migration Review Tribunal to affirm a decision of the delegate of the Minister to refuse the plaintiff a Skilled (Provisional) (Class VC) Subclass 485 visa.

The visa was refused because the plaintiff did not meet the mandatory requirement imposed by regulation 1.15C of the Migration Regulations 1994 (Cth) that he demonstrate competent English by satisfying the Minister that he had achieved an IELTS score of at least 6 for each of the four test components of speaking, reading, writing and listening or that he held a passport of the type specified by the Minister. There is no dispute that the plaintiff did not, and does not, meet those requirements.

Judge Hartnett dismissed the plaintiff’s application for judicial review of the Tribunal’s determination because the plaintiff did not identify any proper grounds of review.  Her Honour found that the Tribunal’s determination was not affected by jurisdictional error and that the plaintiff had been afforded procedural fairness.  Her Honour Justice Gordon refused an extension of time in which to appeal from the orders of Judge Hartnett because the plaintiff could not identify any appealable error in the finding that the plaintiff did not meet the competent English requirement and because her Honour found that Judge Hartnett’s decision was not infected by any legal, factual or discretionary error.

Although it was not a ground of appeal, Justice Gordon noticed that the Tribunal had erred in the identification of the applicable legislative instrument in which was specified the test for competent English and that the Federal Circuit Court had erred by adopting the Tribunal’s analysis of the relevant instrument.  The applicable legislative instrument was IMMI 12/018, whereas the Tribunal and the Federal Circuit Court had proceeded on the basis that the applicable legislative instrument was IMMI 09/073.  But, as her Honour Justice Gordon then went on to explain, the error was not a jurisdictional error because, despite referring to the wrong instrument, the Tribunal had asked itself the correct question.

The requirement that the applicant for visa have competent English was the same under each instrument, which is to say that the applicant was required to have obtained the requisite score in either an IELTS test or an Occupational English test.  The substance of the law as applied was therefore correct.  In the result, as her Honour Justice Gordon, concluded, an appeal was bound to fail.

There is no reason to doubt the correctness of Justice Gordon’s judgment.  An appeal from Judge Hartnett’s judgment would have been futile.  It was appropriate for that reason that the application for extension of time be refused.

Mr Singh has appeared on his own behalf this morning and added to the submissions which he has put forward in writing that he does not dispute that he must leave this country.  He seeks some time in which to assemble some money with which to satisfy obligations apparently owing to the Commonwealth and to others in relation to proceedings thus far.  I regret to say I do not have the power to accord him that extra time.  The power to do so lies with others.  In the result, the application to show cause is dismissed.

MR KNOWLES:   Your Honour, the first defendant would seek the usual order that costs follow the event.

HIS HONOUR:   Mr Singh, it is ordinarily the case in proceedings of this kind that the losing party must pay what is called the winning party’s costs.  Is there anything you wish to say against that?

MR SINGH:   At the moment I am not able to pay.  If I get the time – a little bit more – I will pay by the hard work because I am not belong to each family in India.  So I am not able to come back again here because when I came from India I got that debit from the bank and then I came in in this country.

HIS HONOUR:   I see.  What I shall do, I shall order costs in favour of the Commonwealth.  It will take some time, no doubt, before they are taxed and it will be up to the Commonwealth whether they seek to recover them from you, Mr Singh.

The orders of the Court are:

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

2.The plaintiff shall pay the first defendant’s costs in the proceedings.

MR KNOWLES:   If your Honour please.

HIS HONOUR:   Thank you very much, Mr Singh.

AT 9.38 AM THE MATTER WAS CONCLUDED