Sohal v Minister for Immigration and Border Protection

[2015] HCATrans 129

[2015] HCATrans 129

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M35 of 2015

B e t w e e n -

SARABJIT SINGH SOHAL

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

A JUSTICE OF THE 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 10.02 AM

Copyright in the High Court of Australia

MR S.S. SOHAL appeared in person.

MR T.B. GOODWIN:   If the Court pleases, I appear on behalf of the first defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Sohal, I have read your affidavit and materials.  Is there anything that you wish to add orally to what you have put in writing?

MR SOHAL:   Yes.  Good morning, respected sirs and memsahibs.  I am sorry I am a bit sick, sir.

HIS HONOUR:   I understand that.  I have seen your medical certificate.

MR SOHAL:   Yes.  I just want to speak about my – the case laid, sir.  The cases when I subjected were a history of my stay in Australia for my studies which had a gap that is – the gap has been, your Honour – it is my history.  I am trying to improve my history regarding that.  In the past months I have already added to that that I have completed a certificate in business.

HIS HONOUR:   Say again, please?

MR SOHAL:   I have completed another course of business and I am still enrolled in Advanced Diploma of Business at the moment, which I am doing.  Sir, I would just like to plead the Court if they can give me another chance because, sir, the history – history is normally – some histories are bad, but if you get the chance to correct your history, sir – I mean, anyone of us here in the Court would have a history we would like to change.  Mistakes do happen and in my case – I mean, I did not actually know that.  I did not realise within myself that I was suffering from deep inside myself.  I was – I did not actually know what I was doing.  It started with a question about my competency – to my records when I was studying the forms, I did computer science, I did even – I have my IELTS which I got seven bands or more and it is not about my competency.

It was the situation.  I was fighting within myself, maybe because I did not actually realise where I was, what I was doing, probably lack of awareness.  I would just like to ask the Court – I just want to erase my - erase all – if I could replace my history which is – I know time gone is time gone, but if one – I am trying to make it up, sir.  I am trying to make it up everything.  I am doing it, I am doing my studies.  I am trying to be a better man.  I am trying to be as everyone else wants to be in life.

HIS HONOUR:   Yes.

MR SOHAL:   It is just the history.  I cannot go back to my history, sir, but I, 100 per cent, am trying to prove that my future can be brighter.  If the Court just listens to my plea, sir.  Thank you, your Honour.

HIS HONOUR:   Thank you, Mr Sohal.  Mr Goodwin.

MR GOODWIN:   If the Court pleases, the Minister filed written submissions on 18 May in this matter.  I rely on those written submissions.  Unless there is anything particularly that would be useful to highlight to your Honour, those are the matters before the Court on behalf of the Minister.

HIS HONOUR:   Thank you, Mr Goodwin.  There is nothing further?

The plaintiff is a citizen of India who came to this country in 2009 as the holder of a student visa.  He was subsequently granted a Student (Temporary) (Class TU) Subclass 572 visa.  On 28 July 2012, he applied for a further Subclass 572 visa.  A delegate of the Minister refused the application because the delegate found that the plaintiff had failed substantially to comply with condition 8202, in that he had not enrolled in a course between 19 August 2011 and 27 July 2012.  That is not disputed.

The plaintiff applied to the Migration Review Tribunal for review of the delegate’s decision.  Before the Tribunal he conceded that he was not enrolled in a course between 19 August 2011 and 27 July 2012, but he claimed that it was due to illness.  He stated that he suffered from a medical condition following an operation, was in India for some three weeks and then returned to Australia where he had suffered further illness.

The plaintiff submitted Indian medical certificates in support of his claim but the Tribunal found that, because the certificates did not identify where and for how long the plaintiff had been ill, it could not place any weight on them.  The Tribunal also rejected the plaintiff’s excuse for failure to supply Australian medical certificates, which was that his Australian doctors refused to supply them without an order of the Tribunal.  The Tribunal noted that the plaintiff had been afforded abundant time in which to assemble any evidence in support of his claim and that he had conspicuously failed to do so. 

In the result, the Tribunal rejected the plaintiff’s explanation for his failure to be enrolled in the relevant period.  It found that he had a poor academic record and a significant period of non‑enrolment and that he was not a genuine student.  He did not meet the requirements of clause 572.223 and he also failed to provide any financial information to satisfy Schedule 5A of the regulations.  On those bases, the Tribunal affirmed the delegate’s decision.

On 4 December 2013, the plaintiff filed an application for judicial review in the Federal Circuit Court but on 10 November 2014, the Federal Circuit Court dismissed the application.  Judge Whelan found that the plaintiff had failed to identify any jurisdictional error in the Tribunal’s decision, the findings of the Tribunal were open on the evidence and that the Tribunal had accorded the plaintiff procedural fairness.

The plaintiff appealed to the Federal Court, but, on 23 February 2015, his Honour Justice Beach dismissed the appeal.  His Honour found that the plaintiff had not identified a jurisdictional error in the Tribunal’s decision and that the applicant was, in effect, impermissibly seeking merits review of the Tribunal’s determination.

This is an application for an extension of time in which to apply for a writ of certiorari to quash the judgment and orders of Justice Beach and a writ of mandamus to compel the Minister to reassess the plaintiff’s application for visa.  The plaintiff’s grounds of application for certiorari and mandamus are:  

“1.If the Court determines that vitiating error has been demonstrated, then the plaintiff is entitled to the declaratory relief from court costs and get 527 visa grant or recommend my case honourable Minister;

2.Delegate behalf of the Minister has misused section 65 of the Act without giving the appellant to comment on his exceptional circumstance beyond his control of unsatisfactory progress previously in Australia during his studies;

3.Nor is mandamus available to compel the exercise of those powers.”

This morning Mr Sohal has appeared and submitted in addition to the matters set out in his written material that although he concedes he has in the past been a poor student and failed to comply with the requirements of the visa that he seeks, he has now mended his ways, has completed one business studies course, is presently enrolled and studying diligently in an advanced diploma of business studies and that, if he were given a further opportunity, he could within the time meet the requirements for the visa that he requires.

The application for extension of time is some 502 days out of time and, apart from it being apparent that the plaintiff chose to exhaust his appeal rights before bringing this proceeding, there really is no explanation for the delay.  More importantly, however, the application does not disclose an arguable ground for the grant of certiorari or mandamus and the plaintiff’s affidavit in support of the application and his oral submissions do not relevantly take the matter any further.  Nor has any sufficient reason otherwise been advanced to doubt the correctness of the Tribunal’s decision, the judgment of the Federal Circuit Court or the judgment and orders of Justice Beach.

Unfortunately, it is beyond my power to do anything about Mr Sohal’s changed circumstances.  If anything is to be done in that respect it can only be done by the Minister. 

It follows that the application for certiorari and mandamus enjoys insufficient prospects of success to warrant an extension of time.  It is ordered, therefore, that the application for extension of time is dismissed.

MR GOODWIN:   Your Honour, the Minister seeks his costs.

HIS HONOUR:   The application is dismissed with costs.  Thank you, Mr Sohal.

AT 10.12 AM THE MATTER WAS CONCLUDED