Syed v Minister for Immigration and Border Protection & Anor

[2018] HCATrans 106

[2018] HCATrans 106

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M115 of 2017

B e t w e e n -

ZAKI HASAN RAZVI SYED

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL COURT AUSTRALIA

Second Defendant

Application for order to show cause

BELL J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON THURSDAY, 31 MAY 2018, AT 10.27 AM

Copyright in the High Court of Australia

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

HER HONOUR:   Yes, thank you, Mr Knowles.  Is there an appearance for the plaintiff in the matter?

MR KNOWLES:   Not that I can see, your Honour.

HER HONOUR:   If the matter could be called, please.

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Thank you.  Yes, Mr Knowles.

MR KNOWLES:   Yes, thank you, your Honour.  Your Honour should have before the Court the plaintiff’s application for an order to show cause together with the accompanying summons, affidavit of the plaintiff and outline of submissions of the plaintiff.  In terms of the materials from the first defendant, your Honour should have an outline of submissions dated 24 May this year as well as an affidavit of my instructor, Mr Jarrod Blusztein, dated 17 May this year.  May I take that affidavit as read, your Honour?

HER HONOUR:   Yes, you may.  Just before that, Mr Knowles, do you also ‑ there seems to be an affidavit from your instructor sworn today.  Is that ‑ ‑ ‑

MR KNOWLES:   Yes, your Honour.  I understand there is an affidavit perhaps sworn – is it yesterday’s date, 30 May?

HER HONOUR:   I am sorry, you are quite right, it is, it is yesterday’s date.

MR KNOWLES:   Yes, thank you, your Honour.  That is an affidavit of service that deals with service on the plaintiff of the defendant’s materials - the first defendant’s materials - being the outline of submissions and affidavit of my instructor.

HER HONOUR:   Do I get from this affidavit that the plaintiff has been served with notice of today’s date for hearing of his application?

MR KNOWLES:   I am not sure that your Honour gets that from that affidavit but so far as I understand it the plaintiff has been made aware of the hearing date, in particular by the listing notice or correspondence sent from the High Court to him.

HER HONOUR:   I think the position as I understand it, based on the Registry’s file, is that a letter advising of the hearing date was sent by express post on 3 May 2018 and that that letter has not been returned.  It appears staff of this Court’s Registry have attempted to make telephone contact with the plaintiff on the number recorded on the application but that that has been unsuccessful.  Mr Knowles, do you have any further information in that regard?

MR KNOWLES:   Not in respect of the hearing date being notified to the plaintiff, your Honour - I am unable to assist in that regard.  I do not believe there has been any communication specifically between my instructors and the plaintiff on that topic but in respect of the first defendant’s intention to seek summary dismissal today, that has been conveyed by virtue of service of the outline of written submissions as well as earlier correspondence from my instructors to the plaintiff and this correspondence is exhibited to the first affidavit of my instructor, that is, the affidavit dated 17 May this year at exhibit JRB‑6 and that is found at pages 68 and following in the paginated bundle that is the affidavit.  It is right towards the end of the bundle, your Honour.

HER HONOUR:   You refer to a letter of – am I right – are you making reference to a letter of 7 December 2017 which, depending on the pagination, which seems to be slightly eccentric, but this does seem to be at page 69?

MR KNOWLES:   That is right, your Honour.  I am referring to that letter.  I only referred to page 68 because that is the email by which it was sent.  It was also, as one will see from the affidavit itself, sent by post as well.

HER HONOUR:   Yes, very well, Mr Knowles.  Yes.

MR KNOWLES:   In those circumstances, it is submitted that the Court should find or infer that the plaintiff has been made aware of the hearing date but despite that has not attended, has also been made aware of the Minister’s intention to seek summary dismissal of the matter at this hearing and has not attended.  Unless there is anything further that your Honour wishes me specifically to address, in those circumstances the Minister would simply seek to rely on the outline of submissions thus far in support of the Court making orders for the summary determination of the matter pursuant to rule 25.03.3(a) of the High Court Rules or alternatively section 25A of the Judiciary Act 1903.

HER HONOUR:   Thank you, Mr Knowles.

MR KNOWLES:   Thank you, your Honour.

HER HONOUR:   On 29 August 2017, the plaintiff filed an application for an order to show cause claiming mandamus directed to the first defendant (“the Minister”) and certiorari to remove the decision of the Federal Court of Australia delivered on 3 August 2017 and, to the extent necessary, an enlargement of time in which to apply for mandamus.  The second defendant has filed a submitting appearance. 

The plaintiff is unrepresented and has not appeared on the hearing.  I am satisfied that the plaintiff has been notified of the Minister’s intention to move for summary dismissal of the application.  In written submissions filed on 24 May 2018 and served on the plaintiff, the Minister signified his intention to oppose the extension of time sought and to contend that the proceeding be dismissed as an abuse of process, alternatively because the application does not disclose an arguable basis for the relief that is claimed.

The evidence establishes that the plaintiff is a citizen of India.  On 7 March 2013 the plaintiff entered Australia as the holder of a Student (Temporary) (Class TU) visa Subclass 573 (Higher Education Sector).  On 21 January 2015 a delegate of the Minister made a decision to cancel the plaintiff’s student visa.  The following day the plaintiff applied for a review of that determination before the Migration Review Tribunal. 

On 6 May 2015, the Tribunal affirmed the delegate’s decision to cancel the plaintiff’s student visa. The Tribunal found that the plaintiff had not complied with a condition of his visa because he had ceased to be enrolled in or to be the subject of a current offer of enrolment in a relevant course of study contrary to the requirements of the Migration Regulations 1994 (Cth)[1].  The Tribunal was satisfied, taking into account the plaintiff’s circumstances, it was appropriate that the discretionary power to cancel the visa be exercised. 

[1]  Cl 573.223; 573.231 and 573.611 of Sch 2; cl 8516 of Sch 8.

On 25 May 2015, the plaintiff applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s determination.

Mr Knowles, can you assist me, I have just misplaced the Federal Circuit Court’s decision.  Where do I find that?

MR KNOWLES:   Yes, your Honour, that is found at exhibit 3 to the plaintiff’s affidavit.

HER HONOUR:   Yes, thank you. 

On 6 April 2017, the Federal Circuit Court dismissed the plaintiff’s application upon a view that no arguable case was disclosed.  On 20 April 2017, the plaintiff applied to the Federal Court of Australia for leave to appeal from the orders of the Federal Circuit Court.  The Federal Court was not satisfied that the judgment below was attended by sufficient doubt to warrant its reconsideration or that the refusal of leave to appeal would occasion substantial injustice.  The application was dismissed.  No appeal to this Court lies from a judgment of the Federal Court in the exercise of its appellate jurisdiction refusing an application for leave to appeal[2].

[2]  Federal Court of Australia Act 1976 (Cth), ss 33(4B) and 25(2).

On 29 August 2017, the plaintiff commenced the present proceeding in the original jurisdiction of this Court.  The grounds on which the relief is claimed are unclear.  In written submissions the plaintiff states “there is no procedural fairness of judicial review at Tribunal and even while delegate cancelling the visa”.  I note that among the grounds before the Federal Circuit Court in the plaintiff’s application was reference to procedural fairness but that Judge Wilson was unable to discern the basis of the complaint.  Nothing said by the plaintiff at the hearing in the Federal Court took the matter any further.

To the extent that the plaintiff seeks to challenge the delegate’s decision, that decision has been superseded by that of the Tribunal.  The plaintiff invoked the jurisdiction of the Federal Circuit Court to review the Tribunal’s decision for jurisdictional error.  To permit the plaintiff to bring the same challenge in the original jurisdiction of this Court is apt to be subversive of the administration of justice.  I am, moreover, satisfied, for the reasons advanced by the Minister, that there is no arguable basis identified for the relief claimed.  In the circumstances, the application is dismissed with costs.

AT 10.44 AM THE MATTER WAS CONCLUDED