Ahmed v Minister for Immigration and Citizenship [2011] HCATrans 35 (14 February 2011)

Last Updated: 16 February 2011

[2011] HCATrans 035

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

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 14 FEBRUARY 2011, AT 9.24 AM

Copyright in the High Court of Australia

HIS HONOUR: This summons filed on 16 September 2010 was heard by me in Sydney on 28 January 2011.

The plaintiff was born in Bangladesh in 1981. He arrived in Australia on 10 September 2003 and is the holder of a Student (Temporary) visa under subclause 572 in Schedule 2 to the Migration Regulations 1994. I shall call this “the first student visa”. This visa was for a period to expire on 23 May 2007. On 24 September 2007 the defendant, the Minister, rejected an application by the plaintiff made on 21 September 2007 seeking a further student visa. I shall call this “the September 2007 application”.

Regulation 572.211 stipulated that the September 2007 application be made within 28 days after the applicant’s first student visa had ceased to be in effect. The Minister refused the application on the ground that before what would have been its expiry date on 23 May 2007 the first student visa had been cancelled. This was by force of section 137J of the Migration Act 1958 (Cth) (“the Act”) on 28 March 2007. The step was taken after the plaintiff had failed to comply with a notice dated 28 February 2007 and sent on that date pursuant to section 20 of the Education Services for Overseas Students Act 2000 (Cth), which I shall call “the Education Services Act”.

The notice was sent by the relevant registered provider of education services to the plaintiff. A notice under section 20 of the Education Services Act must be sent by the education provider “if the student has breached a prescribed condition of a student visa” such as failure to achieve a satisfactory course attendance. There is evidence that previous complaints made by the registered provider of poor course attendance by the plaintiff. The plaintiff denies receipt of any section 20 notice. However, on its terms section 137J operates even if the visa holder never receives the notice. See section 137J(1).

Section 48 of the Act bars a non-citizen whose visa has been cancelled under section 137J from applying for a further student visa and section 46 renders invalid an application for such a visa. Hence, the ground given for the refusal by the Minister on 24 September 2007. However, the plaintiff not only denies the receipt of any section 20 notice, but also contends that no notice was sent by the registered provider. The consequence would be that section 137J did not operate to bar his application.

The plaintiff seeks a judicial determination to that effect so as to advance his case for a favourable exercise of the special power given the Minister under section 351 of the Act. But it should be noted that even if the plaintiff were to establish that no section 20 notice had been sent, an alternative ground for refusing his application would still remain. This would be the bar imposed by regulation 572.211, given the lapse of more than 28 days between what would have been the expiry of the first student visa on 23 May 2007 and the making of the application on 21 September 2007.

In this Court the plaintiff seeks to overcome the lengthy delay between 24 September 2007 and the purported institution of a proceeding in this Court under section 75(v) of the Constitution on 30 April 2010 by obtaining an order under section 486A(2) of the Act. Section 468A takes its present form by operation of Schedule 2, item 6 of the Migration Legislation Amendment Act (No. 1) 2009 (Cth). Section 486A(1), (2) and (5) provide:

(1) An application to the High Court for a remedy to be granted in the exercise of the court’s original jurisdiction in relation to a migration decision must be made to the court within 35 days of the date of the date of the migration decision.

(2) The High Court may, by order, extend that 35 day period as the High Court considers appropriate if:

(a) an application for that order has been made in writing to the High Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b) the High Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

. . .

(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

The 35 day period indicated in section 486A(1) is by force of Schedule 2, item 7 of the 2009 Act treated as having run from the date of the relevant migration decision, here 24 September 2007.

It is accepted by the parties that if this Court makes an order under section 486A(2) in favour of the plaintiff, the balance of his application then appropriately would be remitted by this Court to the Federal Magistrates Court, but it is agreed that only this Court may exercise the power under section 486A(2). If the plaintiff was successful in this Court in obtaining an order under section 486A(2), then upon remitter he would seek certiorari to quash the rejection of the September 2007 application and mandamus requiring the Minister to reconsider that application according to law.

Upon such reconsideration, however, it presently appears that the Minister would be obliged to refuse the September 2007 application. This would be because either the application was rendered incompetent by sections 46, 48 and 137J of the Act or, alternatively, by reason of regulation 572.211, as indicated earlier in these reasons. The plaintiff also would seek, even in the absence of other relief, a declaration that the first student visa was not validly cancelled on 28 March 2007 by operation of 137J of the Act.

The power to grant declaratory relief, as emphasised by Chief Justice Mason, Justices Dawson, Toohey and Gaudron in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581 to 582 is confined, but this is by considerations which mark out the boundaries of judicial power. It could not be said that the declaration should not be made because it would lack utility and produce no foreseeable consequences for the parties (the plaintiff and the Minister) and given the significance that the Minister could be expected to attach to the declaration in the exercise of the special power conferred on the Minister by section 351.

Upon the present state of the evidence in which there has been no cross-examination of the deponents of the affidavits, there is a prospect that the plaintiff could establish that the section 20 notice had not been sent on 28 February 2007. The affidavit of the principal’s executive officer of the particular education provider, identified as IIBIT, sets out the systems by which the section 20 notices were generated by electronic data base means in accordance with the usual practices of the provider.

On 30 October 2007, the plaintiff’s solicitor, who has acted for him since about October 2006, was told by an officer of the Minister’s department during a telephone conversation that IIBIT had issued a section 20 notice which had expired on 28 March 2007. Thereafter, the plaintiff and his brother attended the premises of IIBIT and were given a notice purported to be that given on 28 February 2007. However, as only recently appreciated by the plaintiff’s advisers – see the transcript of 29 September 2010, line 125 –and now affirmed by the deponent on behalf of IIBIT, this document contained references to legislative criteria which only came into effect from 1 July 2007. At the least, this suggests some absence of efficiency in the operation of IIBIT’s systems. Cross-examination of the IIBIT deponent could significantly assist resolution of this factual issue. There is, in addition, a significant public interest in the operation of the section 20 notice system.

The Minister, however, emphasises the significant delay in approaching this Court. In December 2007, after a visit by the plaintiff to the IIBIT premises, he was advised by his solicitor to seek a protection visa, a step not barred to him by section 48, so as to seek access to the ministerial discretion under section 417 of the Act. This is relevantly similar to the discretion under section 351.

After refusal of an appeal to the Refugee Review Tribunal, which I shall call “the RRT”, the application for the protection visa was lodged on 18 January 2008 and refused in April 2008. The delegate’s decision was upheld by the RRT on 1 July 2008. Thereafter, on 9 July 2009, the Minister declined to exercise his powers under section 417.

The plaintiff’s solicitor was absent from Australia in October and November 2009. Upon his return it was decided to institute litigation in the Federal Magistrates Court. This was done but, on the advice of counsel, subsequently discontinued. The application to this Court was made on 30 April 2010. The Minister asserts prejudice by reason of the delay. I give some weight to this but, as matters stand presently, there is no bad faith on the part of the plaintiff. He and his advisers have become enmeshed in the complex system established with respect to student visas by the Act and the Education Services Act. The plaintiff should not be denied an order for an extension of time by reason of pursuit on legal advice of other avenues of redress; see Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah (2001) 206 CLR 57 at 88, 103, 125.

I am satisfied that it is necessary in the interests of the administration of justice to extend until 21 February 2011 the period for filing an application to show cause substantially in the form of the document headed, “Amended application for an order to show cause” which was received by the Sydney Registry on 16 September 2010. That document should be re-engrossed as the initiating application and filed accordingly in this Court.

I remit the proceeding so instituted for hearing by the Federal Magistrates Court of Australia, New South Wales Registry. This proceeding is to continue in the Magistrates Court as if the steps already taken in this Court had been taken in the Magistrates Court. The Registrar of this Court is to forward to the proper officer of the Magistrates Court photocopies of all documents filed in this Court and of the transcripts of proceedings in this Court. The respondent is to pay the costs of the proceeding in this Court. The summons filed 16 September 2010 otherwise is dismissed.

I will now adjourn.

AT 9.37 AM THE MATTER WAS ADJOURNED