Haque, In the matter of an application for leave to issue or file [2019] HCATrans 30 (26 February 2019)

Last Updated: 26 February 2019

[2019] HCATrans 030

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S19 of 2019

In the matter of -

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

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 26 FEBRUARY 2019, AT 2.15 PM

Copyright in the High Court of Australia

HIS HONOUR: On 15 January 2019, the applicant filed an ex parte application for leave to issue or file an application for a constitutional or other writ. For the reasons that I now publish I would dismiss the application. I direct that the reasons as published be incorporated into the transcript.

On 12 December 2018 Bell J directed pursuant to r 6.07.2 of the High Court Rules 2004 (Cth) that the Registrar refuse to issue or file a proposed application for a constitutional or other writ without the leave of a Justice of this Court first having been obtained by the applicant. On 15 January 2019, the applicant filed this ex parte application under r 6.07.3 of the High Court Rules for leave to issue or file the application. It is the second application by this applicant for leave to issue or file an application in this Court concerning the same subject matter.

The applicant is a citizen of Bangladesh who came to this country on 27 June 2006 on a student visa. On 12 December 2012, the applicant’s employer lodged electronically with the Department of Immigration and Citizenship (“the Department”) a nomination for an Employer Nomination (Class EN) Subclass 186 visa (“the Employer Nomination visa”) naming the applicant as nominee. In circumstances set out by Nettle J in a separate application by this applicant, the applicant withdrew that application for the Employer Nomination visa^[1].

On 10 December 2013, the applicant lodged an application for a protection visa claiming a fear of persecution if he returned to Bangladesh due to his political affiliations with the Bangladesh Nationalist Party and his conversion to Christianity during his time in Australia. That application was rejected by a delegate of the Minister for Immigration and Border Protection (“the Minister”), whose decision was affirmed by the Refugee Review Tribunal on 23 April 2015. An application to the Federal Circuit Court of Australia for judicial review was dismissed on 2 September 2016 and an application to the Federal Court of Australia for an extension of time to appeal was dismissed on 17 February 2017.

During the process described above, on 4 October 2016 the applicant lodged an application for review by the Administrative Appeals Tribunal (“the Tribunal”) of what the applicant characterised as the failure of the Minister to make a decision in relation to his application for the Employer Nomination visa. On 6 December 2016, the Tribunal held that it had no jurisdiction in the matter because the application had been withdrawn.

On 7 April 2017, the applicant then lodged a further application for review by the Tribunal. On 12 May 2017, the Tribunal held that it had no jurisdiction in the matter because such an application could only be made by an employer, and in any event, the time period for applying for review had expired. An application for an extension of time in which to seek judicial review of the Tribunal’s decision was dismissed by the Federal Circuit Court on 30 October 2017^[2].

The applicant then sought in this Court to impugn the decision of the delegate of the Minister refusing him the Employer Nomination visa by filing an application for an order to show cause. On 23 November 2017, Gageler J made a direction to refuse to issue or file the document without the applicant first obtaining the leave of a Justice of this Court. On 12 December 2017, the applicant filed an ex parte application for leave to issue or file the application for an order to show cause. That application was dismissed by Nettle J on 7 February 2018^[3]. His Honour held as follows:

“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 [a] visa which has been withdrawn. For that reason, among others, the proposed application for an order to show cause would be bound to fail.”

An application for leave to appeal from Nettle J’s decision was dismissed by Keane J and me on 10 May 2018, on the ground that the proposed appeal would have no prospects of success^[4].

The applicant now seeks a declaration and writs of certiorari and mandamus again in relation to the decision of the delegate of the Minister to refuse the Employer Nomination visa and an order under s 486A(2) of the Migration Act 1958 (Cth) extending the time limit within which to challenge the delegate’s decision.

The applicant’s attempt by this application to relitigate a case that has already been disposed of by earlier proceedings in the original jurisdiction of this Court, from which leave to appeal was refused, is an abuse of process. It would be futile to grant the applicant leave to file the application. The application for leave is dismissed.

The orders are:

1. Leave to issue or file the proposed application for a constitutional or other writ refused.

2. Application dismissed.

I publish those orders.

AT 2.15 PM THE MATTER WAS CONCLUDED

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^[1] In the matter of an application by AKM Azmerul Haque for leave to issue or file [2018] HCATrans 9.

^[2] Haque v Minister for Immigration and Border Protection [2017] FCCA 2637.

^[3] In the matter of an application by AKM Azmerul Haque for leave to issue or file [2018] HCATrans 9.

^[4] In the matter of an application by AKM Azmerul Haque for leave to appeal [2018] HCASL 119.