Salum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCATrans 51 (30 March 2021)

Last Updated: 7 April 2021

[2021] HCATrans 051

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M114 of 2020

B e t w e e n -

SALEHE SOZI SALUM

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Defendant

Application for a constitutional writ

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 30 MARCH 2021, AT 9.29 AM

Copyright in the High Court of Australia

HER HONOUR: The plaintiff seeks a constitutional writ in respect of a decision made by the delegate of the defendant, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, on 12 October 2015 to refuse to grant the plaintiff a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.

For the reasons that I now publish, I would direct pursuant to r 25.09.1 of the High Court Rules 2004 (Cth) that the application be dismissed without listing it for hearing. The application does not disclose an arguable basis for the relief sought. I would also direct the plaintiff’s application for an order under r 4.02 of the High Court Rules 2004 (Cth) enlarging the time period for filing an application for a writ of mandamus or certiorari in r 25.02.2 be dismissed. The plaintiff has not demonstrated any exceptional circumstances warranting an enlargement of time.

I publish those reasons.

In matter number M114 of 2020, the orders of the Court are:

1. The plaintiff’s application for a constitutional writ is dismissed.

2. The plaintiff’s application for an extension of time under s 486A(2) of the Migration Act 1958 (Cth) and an order under r 4.02 of the High Court Rules 2004 (Cth) enlarging the time in which to file an application seeking a writ of certiorari or mandamus under r 25.02.2 of the High Court Rules 2004 (Cth) is dismissed.

3. The plaintiff is to pay the defendant’s costs of the application.

I publish those orders. I direct that the reasons as published be incorporated into the transcript.

The plaintiff seeks a constitutional writ in respect of a decision made by a delegate of the defendant, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the delegate”), on 12 October 2015 to refuse to grant the plaintiff a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa (“the visas”).

Each party has filed extensive written submissions in this matter and for that reason, and because of the nature of the application, I have concluded that it is appropriate to be dealt with on the papers. Accordingly, I direct pursuant to r 25.09.1 of the High Court Rules 2004 (Cth) that the application be dismissed without listing it for hearing because the application does not disclose an arguable basis for the relief sought.

The facts are primarily drawn from the plaintiff’s affidavit filed in support of the application and the exhibits to that affidavit. On 10 April 2015, the plaintiff applied for the visas on the grounds of being in a de facto relationship with an Australian citizen. On 11 June 2015, the plaintiff’s sponsor for the visas withdrew her sponsorship because the relationship between the sponsor and the plaintiff had ceased.

On 13 July 2015, in response to a letter from the delegate asking the plaintiff to provide certain documentation if he wished to proceed with the application for the visas despite the breakdown of the relationship, the plaintiff’s representative conceded that the relationship had ceased but advised that because there was a child of the relationship, the plaintiff may still be eligible for the grant of the visas. The plaintiff’s representative sought, and was granted, an extension of time to provide further evidence until 31 July 2015, then 31 August 2015 and then 28 September 2015. Apart from the child’s birth certificate provided with the correspondence of 13 July 2015, no further evidence was received by the delegate.

On 12 October 2015, the delegate refused to grant the plaintiff the visas. The delegate found that the plaintiff was no longer the de facto partner of the sponsor and therefore failed to meet cl 820.221(1)(a) of Sch 2 to the Migration Regulations 1994 (Cth). There being no evidence of shared custody, access and maintenance obligations in relation to the child of the relationship, the delegate also found that the plaintiff had failed to meet cl 820.221(3), which relevantly provides that an applicant meets the requirements of the sub-clause if the relationship between an applicant and sponsor has ceased, but the applicant has custody or joint custody of, or access to, at least one child of the relationship. As the sponsor was not deceased, the delegate also found the plaintiff did not meet the criteria in cl 820.221(2).

Following the delegate’s refusal to grant the plaintiff the visas, the plaintiff was taken into immigration detention, where he has remained since 11 November 2015.

On 29 January 2016, the plaintiff purported to seek review of the delegate’s decision in the Administrative Appeals Tribunal (“the Tribunal”). On 17 March 2016, the Tribunal found it had no jurisdiction to review the delegate’s decision. The application was filed outside the prescribed time and was not accompanied by the prescribed fee.

On 15 November 2019, an officer of the Australian Border Force notified the plaintiff that he was to be removed from Australia pursuant to s 198(6) of the Migration Act 1958 (Cth) on 27 November 2019. On 29 November 2019, the plaintiff filed an application in the Federal Court of Australia for an extension of time in which to lodge an application for review of the delegate’s decision. On 5 December 2019, the plaintiff filed an interlocutory application in the Federal Court, seeking to restrain the defendant from removing the plaintiff from Australia until his application for an extension of time had been determined. On 9 December 2019, O’Bryan J dismissed the plaintiff’s interlocutory application on the basis that the defendant had advised the Court that the plaintiff’s removal was no longer sought^[1]. The plaintiff’s application filed in the Federal Court for an extension of time in which to lodge an application for review of the delegate’s decision was dismissed by O’Bryan J on 7 February 2020^[2]. The application was incompetent^[3].

On 5 November 2020, the plaintiff filed the present application seeking an extension of time for the making of an application for a writ of certiorari and the issue of a writ of certiorari quashing the delegate’s decision.

The plaintiff requires an extension of time under s 486A(2) of the Migration Act and an order under r 4.02 of the High Court Rules enlarging the time in which to commence the proceeding under r 25.02.2. The Minister opposes the extension and the enlargement.

The application cannot be remitted^[4]. As the Minister submitted, to grant the extension under s 486A(2), the plaintiff, among other things, must specify in his written application to this Court why he considers it is “necessary in the interests of the administration of justice” and the Court must be so satisfied. The factors relevant to the exercise of the Court’s discretion to grant an extension are well established^[5].

The application for an extension is refused. The plaintiff’s application is approximately five years too late. That delay is considerable and is not adequately explained. Although the plaintiff provided sworn evidence that he was told by Legal Aid in Victoria that he should have challenged the delegate’s decision in this Court, the plaintiff has not explained why he took no steps to challenge the delegate’s decision following his unsuccessful application for review of the delegate’s decision in March 2016 until filing the application for an extension of time in the Federal Court in November 2019. The reason given for the delay appears to be that the plaintiff was under investigation by immigration officials in relation to his true identity. This explanation is unsatisfactory.

It is then necessary to address the merit, or lack of merit, in the plaintiff’s application for judicial review. As McHugh J said in Re Commonwealth; Ex parte Marks^[6], the case would need to be exceptional before the time for commencing proceedings was enlarged by many months.

The application for a constitutional writ specifies two grounds: first, that the delegate’s decision was legally unreasonable and, secondly, that the plaintiff was denied procedural fairness because the delegate failed to provide the plaintiff with further time to provide evidence in support of his application. Both grounds lack any merit. The plaintiff does not identify any error in the delegate’s decision capable of being characterised as unreasonable and none is identifiable. Moreover, the plaintiff has not explained why the delegate’s decision was unreasonable. Similarly, the submission that the plaintiff was denied procedural fairness fails on the facts. The plaintiff’s own affidavit records that he was provided with two extensions of time to provide evidence in support of his application and he failed to do so. As the Minister submitted, in those circumstances, the delegate was authorised to determine the visa applications without taking any further step to seek to obtain information^[7]. Finally, none of the four reasons the plaintiff identifies as justifying him being given a “second chance” disclose any jurisdictional error in relation to the delegate’s decision. This aspect of the application has no prospect of success^[8].

The plaintiff’s application for a constitutional writ does not seek relief directed to the decision of the Tribunal. However, it is referred to in his application. If the plaintiff did intend to seek relief directed to the decision of the Tribunal, that application should be dismissed. Not only has the plaintiff failed to apply for an extension of time, but no extension would be granted. The plaintiff has not identified any arguable basis on which it might be said that the decision was affected by jurisdictional error and none can be identified. The Tribunal did not have jurisdiction because the application for review was not given to the Tribunal within the prescribed period and not accompanied by the prescribed fee.

For the same reasons, the plaintiff’s application for an order under r 4.02 of the High Court Rules enlarging the time period in r 25.02.2 is dismissed. The plaintiff has not demonstrated any exceptional circumstances warranting an enlargement of time.

The applications should be dismissed with costs.

AT 9.31 AM THE MATTER WAS CONCLUDED

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^[1] Chauque v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] 2100 at [7].

^[2] Chauque v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [No 2] [2020] FCA 89.

^[3] Chauque v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [No 2] [2020] FCA 89 at [13].

^[4] Migration Act, s 476B, read with ss 474, 476 and 476A.

^[5] See, eg, Plaintiff M90/2009 v Minister for Immigration [2009] HCATrans 279; Zhang v Minister for Immigration [2015] HCATrans 244; Vella v Minister for Immigration and Border Protection [2015] HCA 42; (2015) 90 ALJR 89 at 90 [3]; [2015] HCA 42; 326 ALR 391 at 392; Gibson v Minister for Home Affairs [2020] HCATrans 46.

^[6] [2000] HCA 67; (2000) 75 ALJR 470 at 474-474 [13]; [2000] HCA 67; 177 ALR 491 at 495. See also Vella v Minister for Immigration and Border Protection [2015] HCA 42; (2015) 90 ALJR 89 at 90 [3]; [2015] HCA 42; 326 ALR 391 at 392.

^[7] Migration Act, ss 62(1) and 63(2). See also Gunaden v Minister for Home Affairs [2019] HCATrans 84.

^[8] Migration Act, s 486A. See also High Court Rules 2004, r 28.01.2(d).