Ahmed v Minister for Immigration and Citizenship [2010] HCATrans 283 (29 October 2010)

Last Updated: 2 November 2010

[2010] HCATrans 283

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 FRIDAY, 29 OCTOBER 2010, AT 9.41 AM

Copyright in the High Court of Australia

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

MR G.R. KENNETT, SC: May it please the Court, I appear for the defendant. (instructed by Sparke Helmore Lawyers)

MR KARP: Your Honour, the reason that I asked for the matter to be relisted was that in the course of drafting submissions I found out that the notice upon which this whole case was based under section 20 of the Education Services for Overseas Students Act - and if your Honour wishes to - - -

HIS HONOUR: Yes, can you explain to me – I have section 20 here – just how it starts the narrative of this case.

MR KARP: What happens is that if a student does not attend the requisite number of classes the education provider is obliged to send a notice under section 20 - - -

HIS HONOUR: “in a form approved by the Secretary”.

MR KARP: In a form approved by the Secretary. If the student does not answer the notice, that is go to an officer of the Department and explain the failure to attend, or the alleged failure to attend, his student visa is cancelled by operation of section 137J of the Migration Act.

HIS HONOUR: Of the Migration Act:

(even if the non-citizen never receives the notice).

MR KARP: Yes.

HIS HONOUR: Under 137J(1).

MR KARP: Yes, that is correct, your Honour. Now, Mr Ahmed claimed that he did not receive the notice. Some time later, I believe in September last year on my instructions, Mr Ahmed went to the education provider and asked for a copy of his notice. That copy is in Mr Bitel’s affidavit of 30 September at exhibit 2 and I think the Minister accepts that that particular notice, which is dated 28 February 2007 - - -

HIS HONOUR: I had better look at that.

MR KARP: I apologise for the state of the evidence, your Honour. The pages are not numbered, but it is Mr Bitel’s affidavit of 30 September this year.

HIS HONOUR: Yes, I have that. Exhibit 2, is it?

MR KARP: Yes, exhibit 2 and it is a few pages back from the front of exhibit 2. It is page 1 of 7 and there is a heading underlined “Certification for the purposes of subclause 8202(3) of Schedule 8 - - -

HIS HONOUR: I have not found it yet. How many pages in is it?

MR KARP: Seven pages in.

HIS HONOUR: Yes.

MR KARP: Now, if your Honour would turn to page - - -

HIS HONOUR: This is an application for a student visa.

MR KARP: No. This is exhibit 2 – I am sorry, seven pages not counting the exhibit sheet, so it might be over one, your Honour – over a further page.

HIS HONOUR: You had better hand it up or we will be here forever.

MR KARP: Thank you, your Honour.

HIS HONOUR: Yes, now what is the point about this letter of 28 February?

MR KARP: Your Honour, it was dated 28 February and if your Honour turns to page 4 of 7 of that document.

HIS HONOUR: Yes.

MR KARP: It cites paragraph 8202(3)(b).

HIS HONOUR: Yes, which was not then in existence.

MR KARP: Exactly, yes. It came into existence on 1 July 2007.

HIS HONOUR: So what then follows? I will hand this back.

MR KARP: What follows is that, in my submission, the notice could not have been sent on that date.

HIS HONOUR: Yes.

MR KARP: And possibly could not have been sent at all, so there is a question as to the validity of the cancellation itself.

HIS HONOUR: Yes.

MR KARP: Now, I understand my friend may be adducing evidence to suggest that there was a letter sent on that day, but I have not seen that evidence yet.

HIS HONOUR: Right. But how would it matter in the face of 137J(1), namely non-receipt does not seem to be critical?

MR KARP: Well, if the letter was not actually sent and, in my submission that letter could not have been sent.

HIS HONOUR: At least it has to have been sent. It may not have been received, that seems to be the point under 137J(1).

MR KARP: Yes. So the substantive issue at this stage has changed from a failure to provide particulars to whether the actual notice was sent. That may change again depending on the Minister’s evidence, if any.

HIS HONOUR: Yes. I think we had better – do you agree with that – not as to the ultimate conclusions, but as to the need to investigate this question?

MR KENNETT: Yes, your Honour. I think what follows from my friend’s discovery about the letter is that this document that is now before the Court is not proof of anything relevant in the case, so there is no proof one way or the other about whether anything was sent to this applicant. What follows from that might be a matter for argument later on, but that is the position - - -

HIS HONOUR: Yes, and rejigging of the timetable, I suspect.

MR KENNETT: Yes.

HIS HONOUR: It looks as if that date of Tuesday, 30 November is unrealistic and it also may be that there are, for all I know, questions that have to be examined orally.

MR KENNETT: That is one possibility, your Honour, yes. My friend has crafted some orders which he will hand up in a moment which would

seek to preserve that hearing date. Now, we are content to go along with that, but one possibility is that there might need to be oral evidence ultimately as to whether something was sent on the particular day or not.

HIS HONOUR: That is what worries me. Yes. Can you hand up your proposal?

MR KARP: Your Honour, I have two versions.

HIS HONOUR: Have you seen this, Mr Kennett? You have.

MR KENNETT: I have, your Honour, yes.

HIS HONOUR: Thank you.

MR KARP: I should say, your Honour, that the question of the extension of time remains.

HIS HONOUR: Yes.

MR KARP: The context of that question may alter.

HIS HONOUR: But we need to know, as it were, what is in the case as to whether it merits an extension, if you see what I mean. Sit down for a minute, I will just read this to myself. What is the difference between the – one provides for a further amended application.

MR KARP: Your Honour, they both do. The one with seven orders provides for a further amended application by 5 November which would give my friend more time to respond in his evidence.

HIS HONOUR: I think that is right.

MR KARP: If he feels he is prejudiced. I have given my friend a draft of what I would expect to be the further amended application and I can hand a copy of that up to your Honour if you wish.

HIS HONOUR: No, not at this stage. It would have to come back to me again before it goes before a Full Court, I am afraid.

MR KARP: Very well, your Honour.

HIS HONOUR: When I know what the state of the affidavit evidence is. Is this then too tight for you, Mr Kennett?

MR KENNETT: It is not a question of it being too tight, your Honour. I take the point that your Honour makes about the case needing to come back before you. That is probably a more significant issue, but can I just say my client has been making some inquiries of the education provider to see whether there are records that can be tendered.

HIS HONOUR: Yes, that is right.

MR KENNETT: We do not, at the moment, know where that is going to end up.

HIS HONOUR: Is the education provider still in operation?

MR KENNETT: Yes. We would anticipate that by the 12th, which is the date my friend proposes for our evidence, we will either have some evidence or, on the other hand, know that we are not going to get any.

HIS HONOUR: Yes.

MR KENNETT: If the position is that we are not going to get any then we may wish to say that we are prejudiced by the late raising at this point because it is three years after the event. That is the reason essentially why there is not a position by consent here. In the shorter version of the orders the only thing that I am not prepared to consent to is the approval for filing a further amended application. We do not know whether there would be some point about prejudice involved in that.

HIS HONOUR: Yes, well I can make that without prejudice, can I not?

MR KENNETT: Yes.

HIS HONOUR: I think the longer form is the appropriate one. Looking at the longer form with seven steps in it, number 6, it should be “Defendant file submissions in reply on or before 24 November”. Number 7 would be “The matter be listed for further directions before me on Thursday, 25 November 2010”. I have another matter in the list that morning as well at 9.30. So the orders then would be - working off the longer of the two documents handed up:

1. The orders made on 12 October 2010 be vacated and in their place the following orders be made.
   
2. The plaintiff, without prejudice to the defendant –
   

So that will preserve your position, Mr Kennett, and it is designed to do that –

The plaintiff file, without prejudice to the defendant, a further amended application for an order to show cause on or before 5 November.

3. The plaintiff file and serve any further affidavits upon which he intends to rely on or before 5 November.
   
4. The defendant file and serve any further affidavits upon which he intends to rely on or before 12 November.
   
5. The plaintiff file any affidavits in reply, together with his additional submissions, on or before 19 November 2010.
   
6. The defendant file submissions in reply on or before 24 November 2010.
   
7. The matter be listed for further directions before me on 25 November 2010 at 9.30 am in Sydney.
   

I make those orders in accordance with that draft which I have initialled, dated and placed with the papers. Is there anything else?

MR KARP: Nothing further, your Honour.

HIS HONOUR: Yes, thank you, gentlemen. Thank you for relisting it. That has been very sensible, I think. I will now adjourn.

AT 9.57 AM THE MATTER WAS ADJOURNED