Haque, In the matter of an application for leave to issue or file [2018] HCATrans 9 (7 February 2018)

Last Updated: 8 February 2018

[2018] HCATrans 009

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S286 of 2017

In the matter of -

an application by AKM AZMERUL HAQUE for leave to issue or file

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 FEBRUARY 2018, AT 4.26 PM

Copyright in the High Court of Australia

HIS HONOUR: For the reasons that I now publish, I dismiss this application. I instruct that the reasons as published be incorporated into the transcript.

This is an application pursuant to r 6.07.3 of the High Court Rules 2004 (Cth) for leave to file an application for an order to show cause why: (i) certiorari should not go to quash a decision made by a delegate of the Minister for Immigration and Border Protection (“the Minister”) to refuse a nomination for an Employer Nomination (Class EN) Subclass 186 visa; and (ii) mandamus should not go to the Minister to compel him to consider and determine according to law the applicant’s application for an Employer Nomination (Class EN) Subclass 186 visa.

The matter has a long history. The applicant is a citizen of Bangladesh who came to this country on 27 June 2006 on a student visa. After two years of post-graduate study, he graduated from the University of Ballarat with a Master’s degree in Professional Accounting and from CQ University with a Graduate Certificate of Management. Thereafter, he obtained a position with The Finance Group Parramatta as a general accountant, apparently making him potentially eligible for permanent residency[1] under the Employer Nomination Scheme.

On 12 December 2012, Jabella Group Pty Ltd (“Jabella”), which appears to have been the proprietor of The Finance Group and therefore the applicant’s employer, lodged electronically with the Department of Immigration and Citizenship (“the Department”) a nomination under the Employer Nomination Scheme naming the applicant as nominee (“the Nomination”). On the same day, the Department sent by email to Jabella a letter acknowledging receipt of the Nomination and advising in effect that it would be processed in due course.

On 4 June 2013, Sandeep Sidhu, an officer of the Department, sent by email to Jabella a further letter in which he stated that he had begun to process the Nomination and that, in order to complete its processing, he required a volume of additional information and documents which he identified in the letter. The letter stated that the additional information and documents were required within 28 days.

On 28 June 2013, Jabella requested an extension of time to provide the additional information and documents. The Department granted an extension to 26 July 2013. Jabella did not, however, provide the additional information and documents by that date or, as will appear, at all.

On 8 October 2013, Mr Sidhu sent by email to Jabella a further letter advising that the Nomination had been refused. The letter was accompanied by a Decision Record which stated in effect that the Nomination had been rejected because of the failure to provide the additional information and documents requested in the letter of 4 June 2013. The letter advised that no further assessment of the Nomination could be undertaken by the Department but that Jabella was entitled to apply to the Migration Review Tribunal for review of the decision to reject it.

On 1 November 2013, Jason Baker of Jabella emailed Mr Sidhu stating that he was very concerned by the contents of Mr Sidhu’s email and could not understand why the Nomination was refused, because: “The information requested by you was provided a few months ago”.

There followed an exchange of emails seemingly designed to establish that Mr Baker was authorised to speak on behalf of Jabella in relation to the matter. Then, on 4 November 2013, Mr Sidhu sent Mr Baker an email to the effect that Mr Sidhu had searched for an email of additional information and documents which Mr Baker had stated he sent to Mr Sidhu on 25 July 2013 and was unable to locate it in his inbox. Mr Sidhu added that:

“I have now forwarded [the matter] to our IT department to locate if [the Department] received [your] email on 25/7/2013. Once received a response [sic], I’ll give you an update.

Based upon the response, we will decide whether there is need to open the nomination application.”

Later on the same day, Mr Sidhu sent a further email to Mr Baker as follows:

“I have been advised by the IT section that Logs of [the Department] mail relays show no record of the [alleged email of 25 July 2013] being received by the Department. ...

Hence, the decision on nomination application still stands.”

On 8 November 2013, the applicant sent the following email to Mr Sidhu:

“As per our discussion today, I have spoken to my employer today about nomination application issues. He has advised he will reply to your email By [sic] Monday with relevant documents to proof [sic] his special circumstances.

Please also advice [sic] us about [the Migration Review Tribunal] application, if we need to take that option how you will issue a new letter with 21 days to submit [the Migration Review Tribunal] application for nomination. We strongly believe immigration will accept this special circumstance of my employer.”

Mr Sidhu responded by email the same day:

“I can not provide you any information in regards to the nomination application since you are not an authorised contact for the nomination application.

However, in general if a decision has been made correctly and the notification has been sent at the preferred contacts, the notification has been taken to be received by the applicant within the prescribed timeframe as per the specified method of communication. In such situations a notification can not be re-issued because the date of decision will not be changed.

I will respond to your nominator if I receive any communication from him.”

On 19 November 2013, the applicant sent the following email to Mr Sidhu:

“I have tried to contact you yesterday to close the issue of my application [for an Employer Nomination (Class EN) Subclass 186 visa]. Please advice [sic] me if I like to withdraw the application and claim the fees back what I will have to do.

If decision for my nomination application remaining same that means above will be my only option to select.

If you please contact me to advice [sic] it will be very helpful.”

Mr Sidhu responded by email the same day, thus:

“Thank you very much for contacting me. If you wish to withdraw your visa application, you need to provide me a signed letter by clearly indicating details of your visa application such as File Reference No., TRN, name, date of birth and your intention to withdraw visa application.”

Later again the same day, the applicant sent a letter to Mr Sidhu containing the specified details and stating as follows:

“In response to the last correspondence for the above application I would like to submit a written advice to withdraw my application. Due to delay in submitting documents for Nomination, my nomination application has been refused. My visa application is due to [sic] refused because of above reason. As a result I will have to submit a new visa application in different subclass within short period of time.

I would like to request you to consider my situation and allow me to apply for refund of my application fees. Please also advice [sic] any further requirements for request to refund of application fees.”

Later still on the same day, Mr Sidhu wrote to the applicant acknowledging receipt of the withdrawal of his application and stating that in view of its withdrawal no further processing would be undertaken. The letter further advised that if at any time in the future the applicant wished to make a new application he would need to meet the criteria which apply at that time.

On 10 December 2013, the applicant lodged an application for a protection visa in which he claimed that he feared being persecuted if he returned to Bangladesh because of his political affiliations with the Bangladesh Nationalist Party and because of his conversion to Christianity during his time in Australia.

The applicant has not since made any further application for an Employer Nomination (Class EN) Subclass 186 visa, preferring instead, as it seems, to take his chances on being granted a protection visa. In the event, however, his application for a protection visa was rejected by a delegate of the Minister and the delegate’s decision to refuse the application was affirmed by the Refugee Review Tribunal on 23 April 2015.

On 18 November 2015, the applicant applied to the Federal Circuit Court of Australia for an extension of time in which to file an application for judicial review of the Refugee Review Tribunal’s decision (the application being at that stage 175 days out of time), and, on 25 May 2016, Judge Smith granted the extension and set the matter down for hearing on 5 July 2016. But following the hearing, on 2 September 2016, Judge Smith dismissed the application for judicial review as groundless[2].

On 7 October 2016, the applicant filed an application for an extension of time in which to appeal to the Federal Court of Australia against Judge Smith’s orders (the time for filing an appeal having expired on 23 September 2016), but, on 17 February 2017, Griffiths J dismissed the application[3]. In extensive written reasons published the same day, his Honour analysed each of the applicant’s proposed grounds of appeal and found all of them to be untenable.

On 6 March 2017, the applicant lodged with the Administrative Appeals Tribunal an application for review of the delegate’s decision to refuse him a protection visa. On 23 March 2017, the Administrative Appeals Tribunal held that it had no jurisdiction in the matter because the delegate’s decision had previously been reviewed by the Refugee Review Tribunal. The applicant subsequently applied to challenge the decision of the Administrative Appeals Tribunal in the Federal Circuit Court of Australia. On 22 November 2017, Judge Street dismissed the application, describing it as ‘patently vexatious’[4].

Meanwhile on 4 October 2016, the applicant had lodged an application for review by the Administrative Appeals Tribunal of what the applicant characterised in effect as the failure of the Minister to make a decision in relation to his application for an Employer Nomination (Class EN) Subclass 186 visa. But on 6 December 2016, the Administrative Appeals Tribunal held that it had no jurisdiction in the matter because the application had been withdrawn.

Undeterred, on 7 April 2017, the applicant lodged a further application for review by the Administrative Appeals Tribunal of what the applicant characterised in effect as the Minister’s refusal of his application for an Employer Nomination (Class EN) Subclass 186 visa. But on 12 May 2017, the Administrative Appeals Tribunal held that it had no jurisdiction in the matter because such an application could only be made by an employer, with the result that the applicant had no standing, and, in any event, the time period for making the application for review had expired.

Finally, on 30 October 2017, Judge Street dismissed an application by the applicant for an extension of time in which to seek judicial review of the Administrative Appeals Tribunal’s decision[5]. His Honour considered the grounds of application for judicial review to be ‘almost unintelligible’[6].

Section 486A of the Migration Act 1958 (Cth) provides that an application to this 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 within 35 days of the date of the migration decision but that this Court can extend time if satisfied, relevantly, that it is necessary in the interests of the administration of justice to make such order. In this case, it would plainly not be in the interests of justice to do so. Quite apart from the extraordinary delay of more than four years since the applicant withdrew the application for an Employer Nomination (Class EN) Subclass 186 visa, there is no obligation on the Minister to consider, still less accede to, an application for visa which has been withdrawn. For that reason, among others, the proposed application for an order to show cause would be bound to fail.

In the circumstances, it would be futile to grant the applicant leave to file an application for an order to show cause. The application for leave to file the proceeding is dismissed.

AT 4.26 PM THE MATTER WAS CONCLUDED

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[1] Migration Act 1958 (Cth), s 30(1); Migration Regulations 1994 (Cth), Sched 1, item 1114B.

[2] CLA15 v Minister for Immigration and Border Protection [2016] FCCA 2252.

[3] CLA15 v Minister for Immigration and Border Protection [2017] FCA 116.

[4] CLA15 v Minister for Immigration and Border Protection [2017] FCCA 2873 at [14].

[5] Haque v Minister for Immigration and Border Protection [2017] FCCA 2637.

[6] Haque v Minister for Immigration and Border Protection [2017] FCCA 2637 at [10].