Ahmed v Minister for Immigration and Citizenship [2010] HCATrans 262 (12 October 2010)

Last Updated: 15 October 2010

[2010] HCATrans 262

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S111 of 2010

B e t w e e n -

KHANDAKAR SAKIB AHMED

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Directions

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 12 OCTOBER 2010, AT 9.38 AM

Copyright in the High Court of Australia

MR L.J. KARP: May it please, your Honour, I appear for the plaintiff. (instructed by Parish Patience Immigration Lawyers)

MR S.B. LLOYD, SC: If it please, your Honour, I appear with MR G.R. KENNETT, SC. (instructed by Sparke Helmore)

HIS HONOUR: Now, can I just ask you this, Mr Lloyd, looking at your written submissions, paragraph 4, I think you are saying that the application made by Mr Karp under the new 486A inserted by Act No 10 of 2009, that that could be remitted to the Magistrates Court.

MR LLOYD: It could be in the sense that it is not sort of, as it were, stuck in this – it is not a primary decision that cannot be remitted.

HIS HONOUR: No.

MR LLOYD: We would argue against that.

HIS HONOUR: But assume that that were then successful and that Mr Karp got his order under 486A, what happens then to the substantive application for section 75(v) relief?

MR LLOYD: So if your Honour made the order under 486A(2) - - -

HIS HONOUR: No, suppose it went off to the Magistrates Court and he gets his order under 486A that only opens the door to him.

MR LLOYD: Yes.

HIS HONOUR: He wants relief under 75(v).

MR LLOYD: That is so.

HIS HONOUR: Now, can the Magistrates Court attend to that or does that have to come back here?

MR LLOYD: No, no, that could be attended to because the Magistrates Court has the same jurisdiction in respect of migration decisions as this Court under section 476.

HIS HONOUR: All right, yes. The other thing I wanted to ask you is this decision you refer to of Chen [2005] FCA 229; 142 FCR 257, is that a Full Court decision?

MR LLOYD: No. It is a decision of Justice Lander sitting alone, although it was adopted by a Full Court in a case called Brar.

HIS HONOUR: What is the citation of that? Do you have that?

MR LLOYD: Yes, I may have copies if it is of assistance. It is Minister for Immigration and Citizenship v Brar [2009] FCAFC 53; (2009) 175 FCR 432 and the relevant references are paragraphs 22 and 23 of Justice Stone’s judgment and his Honour Justice Greenwood at 29 and Justice Besanko agreed with the reasoning at 49. Their Honours both add additional things but - - -

HIS HONOUR: Right.

MR LLOYD: We have a media neutral version, if that is of assistance to your Honour.

HIS HONOUR: No, I can get the report if I need to. Thank you.

MR LLOYD: The other thing I was going to say, your Honour, is that we have an affidavit which just – there is something in our submissions which is inaccurate because I was unaware of it at the time. I think I, in essence, said that the plaintiff did nothing from January until they had brought these proceedings in April, but in fact they brought these – in substance, exact same proceedings in the Federal Magistrates Court in February, then discontinued them in March, then brought them in this Court and then brought them again in the Federal Magistrates Court only to remove that part of the ground in the Federal Magistrates Court, presumably to avoid abuse of process. So it has been to the Federal Magistrates Court in the past and we have an affidavit setting that out.

HIS HONOUR: Is that controversial, Mr Karp?

MR KARP: No, your Honour. I found that out last night.

HIS HONOUR: All right. Well, hang on to the affidavit for the moment. Who is the deponent?

MR LLOYD: My instructing solicitor, Mr White.

HIS HONOUR: So I have your summons, Mr Karp, filed on 16 September and in support the affidavit of your instructing solicitor sworn 29 April, filed on 30 April.

MR KARP: That is correct, your Honour. There is also another affidavit made on 30 September.

HIS HONOUR: By the same deponent?

MR KARP: Yes.

HIS HONOUR: Yes, that is right. Thank you. I have looked at the papers, gentlemen, and I want to indicate my tentative views as to what should happen, then I will stand it in the list and you can consider what I have said. It seems to me that the operation of the new section 486A, which is an important provision and a provision directed to this Court, its interpretation in the first instance should be by this Court. Secondly, as to the substantive section 75(v) application it looks as if the decision in Chen and the subsequent Full Court decision would bind the federal magistrate and if the reasoning in those Federal Court authorities is to be reconsidered it really has to be done here, so the net result, I think, is that both matters should stay here.

What I would propose at the moment is to try and establish a timetable to have the matter ready for hearing on a reference into the Full Court on Tuesday, 30 November 2010 or some later date that may be fixed, but at the moment, Tuesday, 30 November 2010. I have discussed that listing with the Chief Justice and we can fit it in on that day as things stand at the moment.

Now, the short minutes that I propose at the moment I will indicate to you:

1. Direct argument before the Full Court on Tuesday, 30 November 2010 or such later date as the Court may fix, the questions:
   

(a) whether the plaintiff should have relief to the effect that is sought in paragraphs 1 to 5, 9 and 10 of the summons filed on 16 September 2010 and, if so –

(b) whether the plaintiff should have in the first instance and as final relief, relief to the effect of that sought in the amended application for an order to show cause.

2. The defendant file and serve any further affidavits on or before 29 October 2010.
   

That would include today’s affidavit, Mr Lloyd –

The plaintiff do so on or before 12 November 2010 and any affidavits in reply be filed on or before 19 November 2010.

3. The written submissions filed to date be used before the Full Court supplemented as the parties see fit by the plaintiff on or

before 29 October 2010 and by the defendant on or before 12 November 2010.

4. Costs of today be costs in the cause.
   

You will need to check those paragraph numbers, gentlemen, in proposed order 1. I will stand it in the list and I will come back to it in due course. It would be a half-day matter for three Justices, I would think.

AT 9.49 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 10.02 AM:

MR LLOYD: For my client’s part, your Honour, a couple of things. One is I just wanted to draw your Honour’s attention to a matter which does not get any mention in our written submissions because I only became aware of it yesterday, but I just want your Honour to at least be aware of the issue before referring it to the Court. The principal relief, the substantive relief they seek is a mandamus to consider a visa application made in September 2007.

HIS HONOUR: That is right.

MR LLOYD: At the time they made that application it was acknowledged and I quote “that the applicant fails to meet reg 572.211. He would then prepare to appeal to the MRT and on to the Minister under section 351”. So the application was made in circumstances where it was known that the plaintiff could not succeed on the application. All he wanted to do was get to the Minister’s discretion. The Minister has a power after someone loses at the Tribunal to grant any visa.

HIS HONOUR: That is under 417, is it?

MR LLOYD: Under 351. There is also an equivalent power under 417. Having failed – I mean when the delegate took the view that that visa application was invalid rather than challenging at that time what the plaintiff did was put in a protection visa application saying “I am not actually a refugee but I want to get to the Minister’s discretion under section 417”. So he runs through that whole process of the protection visa application to get to the Minister’s discretion. The Minister actually personally considered that request and rejected it. At any particular point in time, now having gone to the RRT, the applicant can make another request to the Minister if he so wishes and the Minister has that power.

So the sole purpose of making the student visa application was to access the Minister’s discretion and that discretion is already accessible so the Court, in issuing a mandamus, would be to compel the Minister to consider an application, which even the plaintiff accepts he will not meet the criteria for. We will ultimately be putting a discretionary argument that that would be a reason for refusing relief. I just had not raised it in the written submissions. I wanted your Honour to appreciate that.

HIS HONOUR: No, I understand that. Have you discussed this with Mr Karp?

MR LLOYD: I apprehend that what Mr Karp’s answer to that is is that he is also seeking a declaration that the original cancellation, the automatic cancellation, was invalid so he was never cancelled. That has no impact upon the point I just made, save that he says that when he makes a submission to the Minister the Minister would then make it on the basis, not that his visa had been cancelled in March 2007, but that it had simply expired in May 2007 and that might conceivably improve his chances.

We say that that means the primary purpose of the relief would be the declaratory relief and we would say it is not really declaring any extant right because on any view the visa is gone. It is just declaring something for the purposes that it might possibly affect the Minister’s consideration of something.

The only other thing we would say is that the date proposed by the Court of 30 November, while not suitable for me, I could do the next three days, but is suitable for Mr Kennett so that would be - - -

HIS HONOUR: We would be happy to see Mr Kennett.

MR LLOYD: Indeed. So we would say that because of that sort of futility-type argument, that would be a ground for dismissing the matter, but beyond that and beyond the fact that we would say there has already been a long delay, the matter has been in and out of the FMC twice, that those are other reasons why your Honour would just dismiss the matter.

There was one other matter. In a sense, one question is what the purpose of all this litigation is because now that he cannot get a protection visa because he has run that course and lost and does not claim that he is a refugee anyway, and he cannot get a student visa because he is not eligible,

the only thing he can do is get to the Minister’s discretion which he can do in any event. He has applied for a bridging visa and, in fact, been granted a bridging visa on the basis of this current litigation and there is an appeal by the Minister in relation to that matter because one of the criteria for a bridging visa is that you have applied for judicial review of a migration decision.

The view which is going to be advanced by the Minister in the Full Federal Court earlier than the date your Honour has specified is that an application under 486A(2) is not an application for judicial review of a migration decision. It is an application for leave to bring an application for judicial review of a migration decision. So therefore it does not support a bridging visa.

So your Honour said that this Court should be the one that first looks at the construction of 486A(2). I just wanted your Honour to know that it will be in a court before then and also, just so your Honour knows, the form of 486A(2) is – although I accept it affects this constitutional Court differently to other courts – in exactly the same form now as the time limits in the other courts. Other than bringing those matters to your Honour’s attention I did not have anything further.

HIS HONOUR: Yes, Mr Karp.

MR KARP: Your Honour, Mr Lloyd puts the position correctly. The plaintiff’s position before the federal magistrate when the same thing was argued by my friend’s colleagues was that if the plaintiff’s visa was found not to have been cancelled or to have been cancelled invalidly then he would be in a better position to make an application under section 351 to the Minister. That, in my submission, is a substantive advantage for him and may or may not be a reason for a discretionary refusal of relief from this Court. However, in my submission, the matter should go to the Full Court to have that issue determined along with the other issues.

HIS HONOUR: What is the timing significance with the intervening Full Court hearing?

MR KARP: That is on 15 November, your Honour, and it raises the issue, as I recall it, of whether an application – the application filed in this Court – is an application for judicial review to bring into play the bridging visa requirements or simply an application for an extension of time. His Honour Federal Magistrate Smith decided earlier this year that it was both.

HIS HONOUR: The Minister has appealed that.

MR KARP: The Minister has appealed that.

HIS HONOUR: If the Minister were to succeed in the Full Federal Court, where would that leave the utility of your application in this Court?

MR KARP: It would be unchanged, your Honour. The proceedings in the Full Federal Court would simply be on the question of whether he is entitled to a bridging visa or whether the decision made regarding the bridging visa was valid.

HIS HONOUR: You want your declaration here to assist your situation under section 351?

MR KARP: Yes.

HIS HONOUR: That, you say, is independent or not dependent upon the bridging visa situation.

MR KARP: That is correct, your Honour, yes. Thank you, your Honour.

HIS HONOUR: All right. Now, do those paragraph numbers seem correct?

MR LLOYD: Yes, your Honour.

HIS HONOUR: I make the following orders:

1. Direct argument before the Full Court on Tuesday, 30 November 2010, or such later date as the Court may fix, on the questions whether:
   

(a) the plaintiff should have relief to the effect of that sought in paragraphs 1 to 5, 9 and 10 of the summons filed on 16 September 2010 and, if so -

(b) whether the plaintiff should have in the first instance and as final relief, relief to the effect of that sought in the amended application for an order to show cause.

2. The defendant file and serve any further affidavits on or before 29 October 2010, the plaintiff do so on or before 12 November 2010 and any affidavits in reply be filed on or before 19 November 2010.
   
3. Written submissions filed to date be used before the Full Court as supplemented by further written submissions as the parties see fit and filed by the plaintiff on or before 29 October 2010 and by the defendant on or before 12 November 2010.
   
4. Costs of today be costs in the cause.
   

MR LLOYD: May it please the Court.

AT 10.13 AM THE MATTER WAS ADJOURNED