Zaman; Mustafa; Syeda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] HCATrans 168

[2019] HCATrans 168

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S167 of 2019

B e t w e e n -

RUBINA ZAMAN

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

Office of the Registry
  Sydney  No S168 of 2019

B e t w e e n -

SYED HOSSAIN MUSTAFA

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

Office of the Registry
  Sydney  No S169 of 2019

B e t w e e n -

FARIZA SYEDA BY HER LITIGATION GUARDIAN SYED HOSSAIN MUSTAFA

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 29 AUGUST 2019, AT 9.54 AM

Copyright in the High Court of Australia

____________________

MS R. ZAMAN appeared in person.

MR S.H. MUSTAFA appeared in person.

HER HONOUR:   Ms Zaman, would you be assisted by having an interpreter?

GOLAM MOWLA, affirmed as interpreter.

HER HONOUR:   Thank you, Mr Interpreter.  Do I understand that the gentleman next to you is Syed Hossain Mustafa?

MR MUSTAFA:   That is correct.

HER HONOUR:   Mr Mustafa, you are acting as the litigation guardian for your daughter, Fariza Syeda.  Is that so?

MR MUSTAFA:   Yes.

HER HONOUR:   Very well.

MS N.S. LAING:   I appear for the first defendant in each of the three matters, your Honour.  (instructed by Australian Government Solicitor)

HER HONOUR:   Perhaps before I turn to you, Ms Zaman, I might ask Ms Laing some questions that will assist me to understand the background to this case.

MS ZAMAN:   Okay.

HER HONOUR:   Ms Laing, firstly, as I understand it from the Minister’s response, the Minister contends that these three applications should be dismissed because they do not raise an arguable basis for the relief that is claimed.  Is that so?

MS LAING:   That is so.

HER HONOUR:   Ms Laing, do I take it that the Minister’s written response, which I note was filed on 2 July 2019, has been served on the plaintiffs?

MS LAING:   It has, your Honour.

HER HONOUR:   Are you able to tell me when that was done?

MS LAING:   It was served by courier on 2 July 2019.

HER HONOUR:   Thank you.  That is in each case, is it, Ms Laing?

MS LAING:   That is in each of the cases, your Honour.

HER HONOUR:   I might just inquire - Ms Zaman, I am told by the Minister’s counsel that the Minister’s written submissions were served on you on 2 July.  Do you agree with that?

MS ZAMAN (through interpreter):   Yes, that is true.

HER HONOUR:   Mr Mustafa, do you agree that you were served with the Minister’s written submissions on 2 July of this year.

MR MUSTAFA:   Yes.

HER HONOUR:   Yes.  Ms Zaman, do you understand that the Minister is inviting me to dismiss your application today because the Minister says you have not established any arguable basis on which you could succeed in obtaining the relief that you seek?

MS ZAMAN:   Yes.

HER HONOUR:   Mr Mustafa, do you understand that the Minister is asking me to dismiss your application and your daughter’s application because the Minister says those applications are dependent on the success of your wife’s application and that application has no prospect of succeeding?  Do you understand that.

MR MUSTAFA:   Yes.

HER HONOUR:   Thank you.  If you sit down again for the moment I will ask Ms Laing to assist me with some further matters.  Ms Laing, I confess to being slightly confused about the procedural history.  In some way these linked applications were dealt with by the Administrative Appeals Tribunal, I think as the one application.  Is that so?  When I say the one application, dealt with on the one occasion on the basis that the – and I may have this, let me just check – applications of the husband and the daughter are entirely dependent, for practical purposes, on the success of the wife’s application.  Is that the position?

MS LAING:   They were dealt with in three decisions, but, yes, on the basis that they were dependent on the wife’s application.

HER HONOUR:   Yes, and then what happened was each visa applicant sought judicial review before the Federal Circuit Court.  The wife’s application came before his Honour Judge Driver the day before the applications brought by the husband and the daughter.  That is so?

MS LAING:   That is so, your Honour.

HER HONOUR:   Then the three applications were married up and dealt with jointly by Justice Davies who refused leave to appeal from Judge Driver’s orders in each application.  That is the history, is it?

MS LAING:   It is, your Honour.

HER HONOUR: Now, as I understand it, you very properly raise a matter in relation to Mr Mustafa’s application and the application of the daughter, for whom Mr Mustafa is the litigation guardian, noting that the Tribunal in dealing with Mr Mustafa’s application and with the application of the daughter, did not assess whether either applicant was a support person and you direct attention to clause 602.212(4) of the schedule to the Migration Regulations in that regard?

MS LAING:   Yes, your Honour.

HER HONOUR:   I am just unclear about the significance of that omission in circumstances in which, as I understand it, it is accepted that the husband and daughter’s visa applications were as members of the family unit of the wife and depended for their fate on the fate of her application.  Am I right in that?

MS LAING:   That is correct, your Honour.

HER HONOUR:   So that if the wife’s application failed to meet the criteria in the schedules to the regulations, regardless of whether there was an assessment of the capacity of the husband or the daughter to be a support person, their applications for visas inevitably would fail.  Is that the position?

MS LAING:   That is the position, your Honour.

HER HONOUR:   Yes, I understand.  Thank you, Ms Laing.  I will go back to Ms Zaman now.  Ms Zaman, you understand that the Minister says this is a clear case.  You do not meet the criteria for the grant of the visa that you applied for.  If I can reduce it to its essentials, Ms Zaman, that is because for the visa that you were applying for it was necessary to establish that you were a person aged 50 years or more.  As I understand it, you were born in October 1975 and it is indisputable that you did not meet that particular requirement.

MS ZAMAN (through interpreter):   1977, your Honour

HER HONOUR:   I am sorry.  Even more strongly you accept that you do not meet that particular criterion.  The second criterion, relevantly, required in the case of a person who was not aged 50 that the person had applied for the visa within 28 days of the expiry of their last substantive visa.  Your last substantive visa expired, according to the Minister, in 2008.  You understand?

MS ZAMAN:   Yes, I understand.

HER HONOUR:   So that it is indisputable that you did not meet that criterion.  One of the grounds on which you are claiming relief in this Court is that you asked the Tribunal to postpone its hearing and you placed material before the Tribunal to establish that you were suffering from anxiety, stress and depression.  The Tribunal responded to your request for the postponement by telling you that it had determined to go ahead with the hearing that was listed before it and you argue that the Tribunal was acting legally unreasonably in not giving closer consideration to your circumstances.

The Minister makes two responses to that.  The first is to say that it was not in law unreasonable for the Tribunal to refuse to postpone the hearing, even if you had shown that you were suffering from anxiety and stress and depression.  The second thing the Minister says is even if the Tribunal erred in refusing to postpone the hearing, this Court would not grant you the relief you seek because postponing the hearing could not have made any difference in circumstances in which you simply do not meet the criteria for the grant of the visa.  Is there anything you want to put to me about that proposed ground for the relief that you claim?

THE INTERPRETER:   Your Honour, I said you can speak in English or Bengali, whichever one.

HER HONOUR:   Thank you, Mr Interpreter.  Would it be easier for you to tell me what you want to say sitting down, Ms Zaman?

MS ZAMAN:   No, it is okay.

MS ZAMAN (through interpreter):   I came here – I came here as a student back in 2003.  I completed my studies in 2007 and then I had applied for PR in 2007.  Unfortunately in IELTS exam I was just standing short of point 5, just for point 5 my case was not considered.  That is the reason that portion was closed.  I could not get the PR.  In 2004 my son was born here.  He became an Australian citizen in 2014.  He is now about 15 years, going to school in Year 10.  I was always worried about future of my children and…..actually turned into anxiety and tension.  It is needless to mention I tried to stay here because as a mother I was thinking or looking after – looking for better career of my children.  Meantime, for many reasons I have not visited Bangladesh many times and my children can hardly speak Bangla.

HER HONOUR:   Is there anything else you want to put to me in support of your application?

MS ZAMAN (through interpreter):   When we went to Administrative Appeals Tribunal the judge told ‑ ‑ ‑

THE INTERPRETER:   She means the member of the Tribunal.

MS ZAMAN (through interpreter):   ‑ ‑ ‑ that about the medical visa we applied for.  You know, unfortunate for us, the law was changed after two weeks.

HER HONOUR:   You are referring to the fact that one of the criteria under the regulations was changed after your application.  Is that right?

MS ZAMAN (through interpreter):   Yes.

HER HONOUR:   Yes, thank you, Ms Zaman.  Is that all that you wish to put to me?

MS ZAMAN (through interpreter):   No, I do not have anything further to add, thank you.

HER HONOUR:   Thank you, Ms Zaman.  You can sit down again.  Mr Mustafa, you have heard what your wife has said to me. 

MR MUSTAFA:   Yes.

HER HONOUR:   Do you understand, Mr Mustafa, that the Minister says your application and your daughter’s application entirely depend on the success of your wife’s application.

MR MUSTAFA:   Yes.

HER HONOUR:   Is there anything you wish to put to me on your behalf or on behalf of your daughter?

MR MUSTAFA:   The things that actually – whatever the laws are here is correct but the thing is that there is – we come here because we are thinking that maybe something we can – a humanitarian ground because a humanitarian ground in Australia one of the best countries in the world.  So in that case we get some consideration from this from the court because my son he is an Australian citizen.  We cannot leave him there and they born – both of them born here and if I take my daughter with us she do not know actually anything about the language of Bengali, writing, reading or anything.  So for their future, two Australian‑born people, or kids, for their future I think that humanitarian ground will help us to – that is what I came here to appeal.

HER HONOUR:   I understand, Mr Mustafa, but do you appreciate that the applications that your wife and you bring, and you bring on behalf of your

daughter, are applications that must be dealt with according to law.  It is not the function of this Court to second‑guess decisions that the Minister makes in the exercise of the Minister’s powers.  Do you understand that?

MR MUSTAFA:   Yes.

HER HONOUR:   When you said the law is correct you pointed to a document.  Was that document the Minister’s submissions?

MR MUSTAFA:   Exactly.  The clause – the 50 years and then the thing is that another one is – other visa.  Exactly, yes.

HER HONOUR:   Yes.  Thank you, Mr Mustafa.  Do I take it there is nothing further you wish to put to me?

MR MUSTAFA:   No, it is all right.

HER HONOUR:   Thank you.  I do not need to hear from you further, Ms Laing.

MS LAING:   Your Honour, if I may raise two additional matters that I have been asked to raise today?

HER HONOUR:   Yes.

MS LAING:   The first concerns a change of name on the part of the first defendant.

HER HONOUR:   The first defendant is named as “The Minister for Home Affairs”.  Has there been yet another change?

MS LAING:   There has, your Honour.

HER HONOUR:   The stationery charges must be significant.  What is the name?

MS LAING:   Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

HER HONOUR:   Thank you.

MS LAING:   We would seek an order amending the name of the first defendant in each of the matters to that new name.

HER HONOUR:   Yes.  That order is made.  The first defendant is the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

MS LAING:   Thank you, your Honour.  The second matter concerns the issue of costs.

HER HONOUR:   Yes.

MS LAING:   I believe in the responses the usual order is sought in respect of each of the matters, but I have been asked to make clear that in respect of the minor plaintiff the order would be sought against the litigation guardian.

HER HONOUR:   Yes, thank you.

MS LAING:   Thank you, your Honour.

HER HONOUR: These three related applications for constitutional writs were filed on 4 June 2019. The plaintiff in each application claimed certiorari to quash orders made by Justice Davies in the Federal Court of Australia on 15 May 2019. In the alternative, the plaintiffs seek declarations that section 33(4B) of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”) is invalid. In the further alternative, the plaintiffs seek leave to file applications for special leave to appeal from Justice Davies’ orders and that special leave to appeal be granted.

The plaintiffs also claim certiorari to quash decisions of the Administrative Appeals Tribunal, the second defendant, (“the Tribunal”), made on 7 March 2018 affirming decisions of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister”) refusing to grant them medical treatment visas, and the plaintiffs claim injunctive relief to prevent the Minister from relying on or giving effect to the Tribunal’s decisions.  An extension of time in which to file the applications is sought.

The Minister is the first defendant.  The Tribunal has filed a submitting appearance in each proceeding. 

The plaintiffs are unrepresented.  In submissions filed in response to each application on 2 July 2019, and served on the plaintiffs on that day, the Minister submits that the applications should be dismissed on the ground that they do not disclose an arguable basis for any of the relief that is claimed.

The plaintiff in proceedings S167/2019 (“the first plaintiff”) is the spouse of the plaintiff in proceedings S168/2019 (“the second plaintiff”).  The plaintiff in proceedings S169/2019 (“the third plaintiff”) is the first and second plaintiff’s daughter.  Her application for a constitutional writ was filed by her litigation guardian, the second plaintiff.  The visa claims of the second and third plaintiffs depend on the outcome of the first plaintiff’s application and, as a result, they were heard together by Justice Davies. 

The first plaintiff is a citizen of Bangladesh.  She arrived in Australia on 28 August 2003 as the holder of a student visa.  She was granted a Graduate Skilled visa which expired on 9 January 2008.  On 19 June 2017, the first plaintiff lodged an application for a Medical Treatment (Visitor) (Class UB visa).  A delegate of the Minister refused to grant the visa because the first plaintiff did not meet the criteria for the visa set out in Schedules 2 to 3 to the Migration Regulations 1994 (Cth) (“the Regulations”).

The first plaintiff applied to the Tribunal for review of the delegate’s decision.  On 30 January 2018, the first plaintiff was invited to appear before the Tribunal for a hearing fixed to be held on 7 March 2018.  On 14 February 2018, the first plaintiff wrote to the Tribunal requesting that the hearing be postponed due to her state of anxiety, stress and depression.  She attached certificates from her treating doctor and psychologist, together with her treatment plan, to that request.  On 20 February 2018, the Tribunal advised the first plaintiff that the hearing would proceed on 7 March 2018.  The first plaintiff appeared before the Tribunal at the hearing. 

The Tribunal affirmed the delegate’s decision, having determined that the first plaintiff did not meet the criteria for the grant of a visa. One of the criteria is set out in clause 602.212 of the schedule to the Regulations and requires the visa applicant to meet one of seven alternative sub‑criteria. There was no suggestion that any of the sub‑criteria, except for clause 602.212(6), were relevant to the first plaintiff’s application. Relevantly, clause 602.212(6) requires that an applicant for a medical treatment visa has attained the age of 50 years. The first plaintiff informs the Court that she was born in 1977 and, as the Tribunal found, acting on the understanding that her birthdate was in October 1975, the first plaintiff was incapable of satisfying the age criterion.

In these circumstances it was necessary for the first plaintiff to satisfy criteria 3001, 3003, 3004 and 3005 in Schedule 3 to the Regulations[1].  Relevantly, criterion 3001 required the visa applicant to have made a valid application for a visa within 28 days after the “relevant day”.  The “relevant day” in the first plaintiff’s case is the last day on which she held a substantive visa.  The Tribunal found that the first plaintiff last held a substantive visa on 9 January 2008 and it followed that she did not satisfy criterion 3001. 

[1] Regulations, cl 602.213(5). Amendments were made to this clause by the Migration Legislation Amendment (2017 Measures No 3) Regulations 2017 (Cth), Sch 3, items 3 -4 (“the Amending Regulations”) effective from 1 July 2017. The first plaintiff’s visa application was not affected by the amendments because those amendments only applied in relation to an application for a Class UB visa made on or after 1 July 2017 by reason of regulation 6503 in Sch 13 to the Regulations inserted by Sch 12, item 3 of the Amending Regulations.

The first plaintiff sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia on three grounds: (1) that the Tribunal applied the law incorrectly and the procedure was not fair; (2) that the Tribunal did not consider subclause 602.213(5) had been removed from the Regulations; and (3) that the Tribunal did not consider her hearing date change request.

On 30 January 2019, Judge Driver dismissed the first plaintiff’s application pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). That rule provides that the court may dismiss an application for an order to show cause if it is not satisfied that the application raises an arguable case for the relief claimed. Such a dismissal is an interlocutory decision for which leave is required to appear. Ground one was unparticularised and for that reason did not raise an arguable case of jurisdictional error. In any event, Judge Driver was satisfied that the Tribunal correctly applied the law. In relation to ground two his Honour said that the Tribunal was correct to assess the application on the statutory scheme as it existed at the date the application was lodged, noting that the amendments to clause 602.213(5) only applied to applications made after 1 July 2017. His Honour considered that the third ground did not raise an arguable basis for the relief claimed, including because the first plaintiff was incapable of meeting the statutory criteria for the grant of the visa and it followed that there could be no prejudice arising from any failure to postpone the hearing.

On 31 January 2019, Judge Driver heard applications for judicial review made by the second and third plaintiffs. His Honour noted that the first plaintiff was the active visa applicant, and that the second and third plaintiffs applied as members of her family group. It was not clear why separate visa applications were made and dealt with separately by the Tribunal. In circumstances in which no arguable case of jurisdictional error attended the Tribunal’s determination of the first plaintiff’s application his Honour said it was “virtually inevitable” that the same conclusion applied to the second and third plaintiff’s applications. Each application was dismissed pursuant to rule 44.12 of the Rules.

The plaintiffs applied to the Federal Court of Australia for leave to appeal. The applications were heard together. On 15 May 2019, Justice Davies refused leave and dismissed each application. Her Honour rejected an unparticularised assertion that the Federal Circuit Court erred in not finding that the Tribunal’s decision was attended by jurisdictional error. Her Honour considered that Judge Driver was right to dismiss the challenge to the refusal to adjourn the hearing for the reasons that his Honour gave. Her Honour refused leave to rely on a third ground which had not been raised in the Federal Court in circumstances in which that proposed ground was without substance. Her Honour was plainly right to do so. The proposed ground contended that the Tribunal failed to comply with section 359AA of the Migration Act 1958 (Cth) (“the Act”) by failing to put information to the plaintiffs, namely that the last substantive visa held by the first plaintiff was a UQ‑497 visa which expired on 9 January 2008. As her Honour observed, the information is exempted under section 359A(4)(b) of the Act.

In this Court, the first ground on which the plaintiff claims relief contends that Justice Davies misapprehended or disregarded the nature or limits of the functions or powers of the Federal Court under section 24 of the FCA Act. The ground is misconceived. An appeal required leave under section 24(1A) of the FCA Act. There is no reason to doubt Justice Davies’ assessment of the merits of the proposed grounds of challenge.

The next ground contends that “[t]he Court acted partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the limits of its functions and powers”.  The application does not appear to advance any submission in support of the ground and there is nothing to suggest that Justice Davies exceeded her jurisdiction.

Each of the three remaining grounds that the first plaintiff relies on for the relief she claims in this Court have been rejected by Justice Davies as having no prospects of success.  There is no reason to doubt the correctness of that assessment.  I note that the first plaintiff submits that she provided a medical report to the Tribunal in support of her application to postpone the hearing and her submission that the Tribunal failed to “engage in active intellectual process and failed to apply reasonableness test and failed to adjourn the hearing”.  The rejection of the request to postpone the hearing in the circumstances does not raise an arguable case of legal unreasonableness.  Moreover, the refusal to postpone the hearing, even if attended by legal error, would not be an error going to jurisdiction in circumstances in which any postponement of the hearing could not have resulted in a different outcome[2].  As Justice Davies concluded, Judge Driver correctly rejected this ground in circumstances in which no prejudice was capable of being caused by the refusal.

[2] Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 at 262 – 263 at [38]; 363 ALR 599 at 610.

The challenge to the validity of section 33(4B) of the FCA Act is on constitutional grounds. Although notices under section 78B of the Judiciary Act1903 (Cth) have not been served on the Attorneys‑General of the Commonwealth and the States, the Minister submits, and I accept, that the duty not to proceed is not here engaged. The mere fact that a party asserts a matter arises under the Constitution or involves its interpretation does not make it so. Nor is the duty engaged where the purported constitutional challenge is unarguable, particularly in a case such as the present in which the first plaintiff has advanced no argument in support of the constitutional challenge.

No arguable basis for any of the relief that the first plaintiff claims is identified.

The first plaintiff submits that an order for costs should not be made in favour of the Minister in the event that her application is refused because she “has a small family and has medical issues and previously applied for a protection visas”.  The Minister seeks the usual order for costs.  The matters raised by the first plaintiff do not justify a departure from the usual order that costs follow the event. For these reasons, the application in proceedings S167/2019 is dismissed with costs.

The applications filed by the second and third plaintiffs raise relevantly identical grounds to those raised by the first plaintiff.

I note that in his response in relation to the second plaintiff’s application, the Minister notes that the Tribunal did not assess whether the second plaintiff was a “support person” pursuant to clause 602.212(4) of the schedule to the Regulations. The Minister submits that, nonetheless, the Tribunal was obliged to affirm the decision under review, as the first plaintiff did not hold a Medical Treatment visa in the form required by clause 602.212(4) for the second plaintiff to be granted a visa on that basis.

In relation to the third plaintiff, the Minister again draws attention to the circumstance that the Tribunal did not assess whether the third plaintiff was a “support person”, but makes the same submission respecting the inapplicability of the finding in circumstances in which the first plaintiff did not hold a Medical Treatment visa in the form required by clause 602.212(4). It was accepted by the second and third plaintiffs before Judge Driver and before Justice Davies that they applied as members of the family unit of the first plaintiff. It is not in contest that as the first plaintiff was incapable of satisfying the criteria for the grant of the visa, the second and third plaintiffs’ applications necessarily fail. It follows that Judge Driver was correct to find there was no arguable jurisdictional error, and that Justice Davies was correct to refuse each of the second and third plaintiffs’ applications for leave to appeal. For these reasons, and for the reasons given in relation to the first plaintiff’s application, proceeding S168/2019 is dismissed with costs and proceeding S169/2019 is dismissed and I direct the plaintiff’s litigation guardian pay the Minister’s costs.

Adjourn the Court.

AT 10.46 AM THE MATTERS WERE CONCLUDED