Abdel-Hady v Minister for Immigration and Border Protection [2019] HCATrans 77 (12 April 2019)

Last Updated: 15 April 2019

[2019] HCATrans 077

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S293 of 2018

B e t w e e n -

SAFWAT ABDELHADY

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

Application for special leave to appeal

GAGELER J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 APRIL 2019, AT 10.25 AM

Copyright in the High Court of Australia
MR J. WILLIAMS: May it please the Court, I appear for the applicant. (instructed by Harper James Law Group)

MR C.L. LENEHAN: Your Honours, I appear with MS K.N. PHAM for the respondent. (instructed by Australian Government Solicitor)

GAGELER J: Thank you.

MR WILLIAMS: Your Honours, the applicant moves on the amended application for special leave from the whole judgment by the Federal Court of Australia in AbdelHady v Minister for Immigration and Border Protection [2018] FCAFC 164 delivered on 28 September 2018.

Your Honours, there are three fundamental questions before this Court today. The first is whether the applicant should be granted an extension of time to file and serve the amended application for special leave filed on 1 February 2019. The second question is whether the applicant should be granted leave to rely on a newly proposed ground 3, which was not articulated before the court below.

The third question, and arguably the most important question which will decide the first two propositions that I have just placed before the Court, is whether the decision by the decision by the Minister to cancel the applicant’s partner visa on 22 August 2017 pursuant to section 501(2) of the Migration Act was affected by jurisdictional error. Your Honours, the first two propositions are well known, the principles are well known to this Court.

GAGELER J: You really just have to deal with the third, I think.

MR WILLIAMS: Yes, that is what I intend to do, your Honour.

GAGELER J: If you lose on that then you lose on the other two.

MR WILLIAMS: That is correct, your Honours, yes, well and truly understood. Your Honours, with regard to that third question, the applicant contends that the decision by the Minister to cancel the applicant’s partner visa pursuant to section 501(2) of the Migration Act was affected by jurisdictional error, as it was based on the same set of offences, and where there had been no change to the applicant’s substantial criminal record pursuant to section 501(6)(a), as defined by subsection (7)(c) of the Migration Act.

GAGELER J: How do you get to this jurisdictional error? Is it an estoppel?

MR WILLIAMS: Well, most certainly, your Honour. But it is almost a form of double jeopardy, if you like. There has been no change to the substantial criminal record. In essence, your Honour, the Minister gives with one hand and then wants to take with the other. So the first decision by the delegate was to grant the partner visa.

GAGELER J: No, we understand the facts.

MR WILLIAMS: Yes.

GAGELER J: We want you to articulate your legal proposition. What is the jurisdictional error?

MR WILLIAMS: Well, the jurisdictional error is that there was no power for the Minister to intervene and cancel on a secondary basis.

GAGELER J: Why is there no power?

MR WILLIAMS: There would be a form of estoppel there, your Honour. There would be almost a kind of a similar version to a double jeopardy proposition in the migration space.

EDELMAN J: Even though section 501(2) is a different provision concerned with different matters from section 502(1)?

MR WILLIAMS: They are indeed, your Honour. There is a different power, and the question is whether the Minister can exercise a new power under section 501(2), given the delegate to the Minister has already considered that substantial criminal record and granted a partner visa.

EDELMAN J: Would you say, then, there would be the same estoppel that would operate in relation to section 501A(2)?

MR WILLIAMS: That is right, your Honour. Yes, indeed.

GORDON J: Do you? I thought your proposition was that 501A(2) was dealing with a change of mind, and that imposed a higher burden whereas 501(2) was dealing with new facts. Is that not your argument?

MR WILLIAMS: That is the argument, yes. Sorry, I may have misunderstood the first proposition, and I apologise for any confusion there. In short and in summary, the applicant contends that the Minister cannot grant a partner visa – or the delegate, pursuant to section 501, after considering the same substantial criminal record, and given that there has been no further change.

So granting the partner visa on the one hand by the delegate when there is no change to the substantial criminal record, and then cancelling some time later on the same grounds is giving with one hand and taking with the other. It would be patently unfair; it is not the intention of the Migration Act. But, more importantly, it would mire visa applicants in a form of double jeopardy where a decision is made historically on one basis to grant a visa, despite the substantial criminal record, and then to revoke it at some later stage on the same criminal record where there has been no fundamental change to that record.

EDELMAN J: Do you accept that the reasons of the Minister fulfilled all the requirements of section 501A(2)?

MR WILLIAMS: Do we accept that it

EDELMAN J: Yes.

MR WILLIAMS: No, we do not. It did not reach the substantial criminal record. There was no basis there given

GORDON J: Well, it imposes a higher threshold, does it not, of national interest, under 501A(2)?

MR WILLIAMS: That is right. If the applicant is correct that the correct procedure was for the Minister to reconsider and set aside the decision by the delegate, then there would be a need for the Minister to consider the national interest under that subsection, 501CA.

EDELMAN J: You say that that was not considered in paragraphs 94 to 96?

MR WILLIAMS: Most certainly, yes.

EDELMAN J: All right.

MR WILLIAMS: Your Honours, the cases that are before you are Brown, Parker and Chetcuti, I think is how it is pronounced. Your Honours, with respect to Chetcuti, that was decided by Justice Rares. Justice Rares accepted that the power to cancel a visa under one provision cannot be fettered by a prior decision under a different cancellation ground. We say that is plainly wrong and should not be followed.

The authority in Brown, which the applicant relies on, supports the applicant’s argument that the power conferred by section 502 could only be reexercised in circumstances where there were new facts that provide a basis for the Minister to reasonably suspect that a person does not satisfy
the character test. The applicant concedes that in Brown that there was a reexercising of that power.

We concede that the first decision was the granting of the partner visa under 501(1), and then there was a cancellation in the second decision. So they are slightly different and they can be distinguished, but we say the principle is the same. There must be some form of new trigger, new form of criminal behaviour which meets that test of substantial criminal behaviour and indeed, that did not occur in this case.

There was no triggering of the substantial criminal behaviour test to form the basis of a cancellation under section 501(2) and, indeed, the applicant agrees with the submission by my friend that the matter in Parker is not a suitable vehicle to resolve any of the controversies in this matter. If I can be of any further assistance.

GAGELER J: Thank you. Mr Lenehan, we do not need to call on you.

MR LENEHAN: Thank you, your Honour.

GAGELER J: The argument that the Minister lacked power to cancel the applicant’s visa under section 501(2) of the Migration Act 1958 (Cth) is insufficiently arguable to warrant the grant of special leave to appeal to this Court. The application for an extension of time is allowed, but the summons to amend is dismissed. The application for special leave to appeal is accordingly dismissed with costs.

MR LENEHAN: May it please the Court.

MR WILLIAMS: May it please the Court.

AT 10.34 AM THE MATTER WAS CONCLUDED