Patel v Minister for Home Affairs & Ors [2019] HCATrans 33 (28 February 2019)

Last Updated: 1 March 2019

[2019] HCATrans 033

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S252 of 2018

B e t w e e n -

BHAUMIK JITENDRABHAI PATEL

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL CIRCUIT COURT OF AUSTRALIA

Third Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON THURSDAY, 28 FEBRUARY 2019, AT 1.59 PM

Copyright in the High Court of Australia
MR A. KUMAR: May it please the Court, I appear for the plaintiff. (instructed by Stephen John Lawyers)

MR G.J. JOHNSON: If the Court please, I appear for the first defendant, Minister. (instructed by Mills Oakley)

HIS HONOUR: Yes, Mr Kumar.

MR KUMAR: Your Honour, the pleading that the plaintiff relies on was the application for an order to show cause which was filed on 19 September 2018.

HIS HONOUR: Yes, I have that, and I have read that and I have read the affidavit in support and I will take the affidavit as having been read.

MR KUMAR: Thank you, your Honour. They are – I have spoken to my friend. The application joins three parties. We do not wish to proceed against the second and third defendants, principally against the delegate’s decision, unless in any other way it affects the decision made by these bodies

HIS HONOUR: Mr Kumar, I think one difficulty that you have is you have a decision of the third defendant, the Federal Circuit Court, that says that the Tribunal has no jurisdiction, and you seek to challenge that conclusion, do you not?

MR KUMAR: I do, your Honour.

HIS HONOUR: Well, would not the usual course of challenging that conclusion be to bring an appeal from the Federal Circuit Court to the Full Court of the Federal Court?

MR KUMAR: That is correct, your Honour. That would be the

HIS HONOUR: But that step has not been taken.

MR KUMAR: No, your Honour. On that basis

HIS HONOUR: Is there any reason why it would not be an abuse of process for this Court effectively to hear this application as basically a leapfrogtype hearing, although in original jurisdiction?

MR KUMAR: That is the reason why, your Honour, we do not join – do not wish to seek relief against the second and third defendants. We just simply proceed on the decision of the first defendant which requires an extension of time, and the plaintiff has set out in his affidavit as to why he is late to this Court. Instead of coming directly to this

HIS HONOUR: So you abandon all of your claims in relation to the second and third defendant. Is that right?

MR KUMAR: That is correct, your Honour.

HIS HONOUR: So you accept then that the second defendant had no jurisdiction?

MR KUMAR: That is correct, your Honour.

HIS HONOUR: All right. How much extension of time do you then require?

MR KUMAR: Your Honour, the delegate’s decision that was made was on – that your Honour will find at pages 54 and 55 - 27 November 2017.

HIS HONOUR: Pages 54 and 55?

MR KUMAR: That is correct, of the affidavit, your Honour. At page 55 your Honour will find the date.

HIS HONOUR: Yes. So you need – in relation to some of the claims, you need slightly more than a year’s extension of time.

MR KUMAR: That is correct, your Honour. That is correct.

HIS HONOUR: All right. Usually there would need to be exceptional reasons for a substantial extension of time, particularly a very substantial extension of time. What are the exceptional reasons and what is the strength of the grounds upon which you seek to impugn the delegate’s decision?

MR KUMAR: Your Honour, the applicant essentially says that he went into – he made another visa application and then by the time that - he was asked to make another visa application. That visa application was rejected. Then he went to the Tribunal. Your Honour, he made representation to the Tribunal and your Honour will find that submission to the Tribunal on – when the Tribunal received the application for review - that is on page 68, your Honour, of the affidavit.

HIS HONOUR: Yes, but you now accept that the Tribunal had no jurisdiction?

MR KUMAR: That is correct, your Honour.

HIS HONOUR: So it is just the delegate’s decision we are concerned with?

MR KUMAR: Yes, your Honour.

HIS HONOUR: Yes.

MR KUMAR: So, while the decision – and the applicant then started in the wrong court. So, while the decision was there, he did not come to this Court. That is his explanation. In terms of strength of the case, your Honour, we say that your Honour will allow the application on the basis of the way the delegate has reached his decision. Your Honour, that delegate decision is at pages 54 and 55.

HIS HONOUR: The grounds on which you seek to impugn the delegate’s decision - grounds 1, 2, 3 and 4 – those four grounds were all raised – or three of those four grounds were raised in the Federal Circuit Court, were they not?

MR KUMAR: Yes, your Honour.

HIS HONOUR: But ground 4 was not raised in the Federal Circuit Court?

MR KUMAR: No, your Honour, and I would not press ground 4 because then the delegate did not apply that instrument. It applied the legislation that is at court book page 55 – sorry, the affidavit at 55, your Honour.

HIS HONOUR: All right. So it is just grounds 1 to 3 that you rely upon?

MR KUMAR: That is correct.

HIS HONOUR: But all of those were grounds that you relied upon in the Federal Circuit Court?

MR KUMAR: Yes, your Honour.

HIS HONOUR: But unsuccessfully?

MR KUMAR: Unsuccessfully in the sense that her Honour came to the view that she did not have jurisdiction, so she did not deal with it on merits.

HIS HONOUR: Yes, I see.

MR KUMAR: So the crux of the decision, your Honour, that affects this plaintiff is the decision I have taken your Honour to on pages 54 to 55. If your Honour goes to beyond the legislation, the second paragraph which starts with “Sub clause 500.214

HIS HONOUR: Yes.

MR KUMAR: the two sentences that follow, those two sentences, the plaintiff accepts that the computer program is one way that the information could be given. What, in my submission, the delegate has done is misconstrued subparagraph (3) of 500.214 which is just above those sentences that I took your Honour to. The sentence starts:

If required to do so by the Minister –

Then it says what could be done - information could be provided in writing or by use of computer. So what we say in relation to ground 1 is the delegate presumed – he has misapplied the particular legislation, your Honour, in my submission, where the requirement clearly was that there be a request by the – required to do so by the Minister before that step is taken. So, in my submission, it is very clear in the legislation that is how the legislation ought to operate.

HIS HONOUR: You accept that at the time the applicant lodged the student visa application, the applicant was required by the online system to provide evidence of financial capacity? Do you accept that, or not?

MR KUMAR: Your Honour, subparagraph (3) in my submission is to be read that the Minister ought to require the applicant to provide that information.

HIS HONOUR: So your submission is that it is not enough for that financial – evidence of financial capacity to be required to be provided by an online or automated process; that there needs to be a specific request for it by the Minister himself?

MR KUMAR: On plain reading of - that is correct, your Honour, that is what my submission is.

HIS HONOUR: So it is clause 500.214(3) that you say, “If required to do so by the Minister”, those words mean that the Minister must make a personal request or a personal statement of requirement?

MR KUMAR: Not a personal – the delegate is working for the Minister. Not a personal – I say that should be construed as anyone working for the Minister like the delegate who will be deciding, like this case, is what the reference to

HIS HONOUR: But what work then do the words “or by use of a computer program available online” do?

MR KUMAR: In my submission, the Minister can specify the mode in which the information could be provided, whether it is in writing or just simply uploading the information, not the way the delegate has read it, your Honour.

HIS HONOUR: I see. But basically the point boils down to the fact that an online requirement - somebody who is told by an online system that financial capacity evidence is required is not being told that or required to do that by the Minister or the Minister’s delegate?

MR KUMAR: That is my submission, your Honour. The delegate

HIS HONOUR: It has to be a particular communication with the name of the Minister or the delegate on it?

MR KUMAR: The usual course, in my submission, your Honour, that the delegate will ask for that information and the information will be provided.

HIS HONOUR: All right.

MR KUMAR: So that is the crux of my submission, your Honour, and subsection (3) is empowered by section 495A is one of the ways of communicating - so that is my submission, your Honour, in relation to the first ground.

HIS HONOUR: All right.

MR KUMAR: In relation to the second ground, essentially is that - saying the information was not provided, but the plaintiff had indicated in the form that he will provide the information. The information that is in my your Honour, two places in the supporting evidence, on page 52 of the affidavit

HIS HONOUR: Yes.

MR KUMAR: in a sense indicating to the delegate that the applicant is able to and will submit the application. But despite that indication, in my submission, what the delegate has done is simply then proceeded to make a determination off the application by refusing the application without ever communicating with the applicant. So, in my submission, apart from the delegate misconstruing that legislation, could well have communicated with the applicant and said, “Well, this information is missing and you have said that you will provide this information. I’m about to make a decision and this information is not there”; give him two days or seven days to provide that information.

So, in my submission, the delegate simply in this case proceeded without communicating with the applicant – sorry, the plaintiff – to make the decision. Determining the – refusing the student visa application, in my submission, your Honour, clearly is a denial of procedural fairness and a very unreasonable outcome for the applicant – the plaintiff, your Honour.

HIS HONOUR: This is not a ground that is concerned with misconstruction of the legislation.

MR KUMAR: No, your Honour, that is

HIS HONOUR: This ground 2 is solely concerned with procedural fairness in what you say was the failure of the delegate to go back to the applicant and ask for the documents.

MR KUMAR: That is correct, your Honour.

HIS HONOUR: Yes, all right.

MR KUMAR: So that goes to ground 2.

HIS HONOUR: So the particulars of ground 2, other than those particulars that relate to procedural unfairness in that respect, can be disregarded.

MR KUMAR: So far as to deal with other bodies, your Honour, it can be, yes.

HIS HONOUR: And that is the same with ground 1. Ground 1 is really just concerned with the proper construction of clause 500.214(3).

MR KUMAR: That is correct, your Honour.

HIS HONOUR: All right. What about ground 3?

MR KUMAR: Well, in light of the legislation, your Honour, we run the SZIAI argument that in this case simply a call to the agent would have resulted in the information being provided, and the information clearly was the financial information, the basis on which the determination is adverse to
the plaintiff. So we say that in this case the delegate fell into jurisdictional error.

HIS HONOUR: Is that any different from ground 2? Ground 2 is concerned with what you say is a failure of procedural fairness because the delegate did not communicate or go back to the plaintiff and ask for the financial documents or why they had not been provided. Ground 3, at least insofar as it asserts a duty to make further inquiries, seems to me to be raising the same point, is it not?

MR KUMAR: Yes, your Honour, it overlaps, I agree with your Honour.

HIS HONOUR: You said it overlaps, but they are the same point, are they not?

MR KUMAR: They are the same point, your Honour.

HIS HONOUR: All right.

MR KUMAR: So, your Honour, that is my submission in relation to ground 3. As I said to your Honour, ground 4 and 5 I do not press.

HIS HONOUR: Yes, I see.

MR KUMAR: Unless your Honour needs any further assistance with any other matters, those are my submissions in relation to the plaintiff’s – the plaintiff’s submission, your Honour.

HIS HONOUR: Yes, thank you, Mr Kumar, you have clarified your case greatly.

MR KUMAR: Thank you, your Honour.

HIS HONOUR: Yes, Mr Johnson.

MR JOHNSON: If the Court please. Your Honour, the compass of my submissions is somewhat narrowed and helpfully so by reference to my friend’s clear concessions in relation to the ambit of the relief sought and the grounds that he presses. So, focusing on the decision of the delegate, the first hurdle that the plaintiff needs to overcome is the fact that he is seeking, or purporting to seek, review of that decision out of time and therefore, as your Honour has already indicated to my friend, needs to establish not only that there is some merit to the challenge sought to be brought, but that there are exceptional or some extraordinary circumstances explaining the delay.

The plaintiff does in his affidavit give some outline of the chronology of events leading up to the making of a show cause application in this Court but, in my submission, that does not amount to circumstances such as to warrant an extension of time for the extent sought in the present proceeding.

That, however, is not the only point put against the extension of time that is sought. The grounds upon which the delegate’s decision is impugned, they are, in my submission, not sufficiently meritorious to warrant an extension of time. Whilst the plaintiff has expressed a challenge to the delegate’s decision in terms of there being jurisdictional error in that decision, it must be borne in mind of course that the applicant had available to him an opportunity to seek review of the delegate’s decision in the Tribunal which he attempted to do, but could not do so within the time limits required under the Migration Act, resulting in the Tribunal finding that it had no jurisdiction to entertain that merits review.

As my friend has indicated, there is no challenge now to the Tribunal’s finding in that respect. Had the plaintiff brought those proceedings within time, then he could have conducted a merits review of the delegate’s decision. But having failed to do so, he is now seeking an extension of time in this Court to raise jurisdictional challenges to that decision.

The grounds themselves that are raised are, as I mentioned a moment ago, without sufficient merit to warrant the extension of time. The Minister’s response to grounds 1, 2 and 3 are set out in the Minister’s written submissions. I will not go over those as I understand your Honour has read them. But in short, with respect to the first ground, the challenge as brought was that the delegate – and I am referring here back to the delegate’s decision at page 55 of the affidavit – misconstrued the applicable regulation, subclause 500.214(3), in making the decision, and the nature of the challenge was that the delegate had misconstrued the regulation by treating a time of decision requirement as a time of application requirement.

Now, to the extent that that argument is still pressed by the plaintiff, my submission is that by reference to the clear words of the delegate’s decision, in particular at point 5 on the page, the sentence commencing “There is no evidence”, the delegate found that:

There is no evidence of any documentation evidencing financial capacity having been submitted or uploaded up to the time the decision on this application was made.

HIS HONOUR: I think ground 1 has mutated into a slightly different ground now. As I understand the submission that is now put, it is that it is not that there was a jurisdictional error in a misconstruction of the provision as one which was concerned with time of application rather than a time of decision criterion, but rather that subclause (3) required some sort of request by the Minister or the delegate of the Minister rather than by a computerised requirement, although there is no suggestion, as I understand it, the computerised requirement was not authorised by the Minister or the Department.

MR JOHNSON: Yes, and when one has regard to the terms of the regulation itself – subclause (3) – the preface of the regulation is that there is a requirement to do so by the Minister and the way that the regulation permits the Minister to impose this requirement is in one of two ways. First is in writing but then, critically, “or” by use of a computer program available online. So, to the extent that there is any question of authorisation, it does not arise squarely in the terms of the regulation; simply what is required is that there is a use of a computer program available online.

Construed that way, in my submission, it defeats any argument, as I think my friend was advancing, which was that there is some need either for the Minister or an officer with delegated power to make an express or written request to an applicant in these circumstances for the provision of information. It is enough that there is a computer program available online which imposes that requirement. So, in my submission, even as now put by my friend this afternoon orally, ground 1, in my respectful submission, does not raise any arguable error in relation to the delegate’s construction of the regulation.

In relation to the second ground of the show cause application which, as my friend has respectfully properly conceded, raises the same point as the third ground, there is a suggestion that the delegate has fallen into error by failing to engage in some form of communication with the plaintiff to seek his provision of information that was required before he could be granted the visa. In my submission, that argument cannot be accepted.

The delegate does not have a duty to make inquiries or indeed to assist applicants with complying with the requirements for the grant of a visa and, to the extent that it might be said that there was no communication from the Minister or the Department to the plaintiff concerning the progress of his application, that cannot be accepted either.

As mentioned in the Minister’s submissions at paragraph 18, the Department sent the plaintiff a letter - and I do not suggest that it was a personalised letter; it appears to have been a letter that is sent to visa applicants such as the plaintiff – provided the plaintiff with a letter stating that:

The Department may make a decision on your application without requesting additional information. You should provide us with all the information you feel is relevant.

That particular extracted part of the letter was referred to in the reasons for judgment of the Federal Circuit Court at paragraph 6, which is at page 125 of the affidavit. So the plaintiff was on notice that he needed to provide the information, but visa applicants need to, in any event, take steps to ensure that they comply with the requirements for the grant of a visa at the applicable points in time as required under the regulations. There was no particular duty on the delegate in this case to take any steps to ensure that the plaintiff complied with the requirements for the visa before a decision was made.

In my submission, and for the reasons set out in the Minister’s written submissions, the application should be dismissed and, unless I can further assist your Honour, those are my submissions.

HIS HONOUR: Thank you, Mr Johnson. Mr Kumar, anything in reply?

MR KUMAR: No, your Honour.

HIS HONOUR: Could I just confirm with you that, as I understand it, the second and third ground were as I put to Mr Johnson, in other words, that you do not press the allegation of error by misconstruction of the time for decision criteria?

MR KUMAR: No, your Honour.

HIS HONOUR: Your submission is just about the procedural fairness in the way your put it orally?

MR KUMAR: Yes, your Honour.

HIS HONOUR: Yes, thank you.

I will reserve my decision and deliver the decision and reasons at 9.30 am tomorrow. The parties do not need to attend. They will be notified of, and provided with a copy of, the decision and the reasons at that time, although of course you are entitled to attend if you wish.

The Court will adjourn until 9.30 am tomorrow.

AT 2.33 PM THE MATTER WAS ADJOURNED