FEDERAL COURT OF AUSTRALIA

Guo v Minister for Immigration and Border Protection [2018] FCAFC 34

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to seek judicial review of the decision by the Administrative Appeals Tribunal given on 10 May 2017 is dismissed.

2.    The applicant is to pay the costs of the first respondent as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    By an application made on 19 June 2017 under s 477A(2) of the Migration Act 1958 (Cth) (the Act), the applicant seeks an extension of time within which to seek judicial review of a decision by the second respondent, the Administrative Appeals Tribunal (the Tribunal). The Minister opposes the grant of an extension of time on the ground that the application lacks any reasonable prospect of success. The question of whether an extension of time should be granted was heard concurrently with argument on the substantive application for judicial review.

2    By its decision, the Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to refuse to grant the applicant a Class 815 (PRC) (Permanent) entry permit (Class 815 entry permit) in the exercise of discretion on character grounds under s 501 of the Act. While the Tribunal’s decision was made on 10 May 2017 (Tribunal’s 2017 reasons), the delegate’s decision had been given over 20 years earlier on 17 September 1996 (the 1996 decision) in circumstances later explained.

3    It is alleged that the Tribunal fell into jurisdictional error in two respects, namely, that the Tribunal:

(1)    failed to take into account the regular and continuous granting of bridging visas during the course of the 20 years since the 1996 decision; and/or

(2)    misconstrued the test for determining good character for the purposes of s 501 of the Act as it stood in 1996, in considering what is the correct and preferable decision in 2017.

4    For the reasons set out below, the application for an extension of time should be refused on the ground that an appeal would not enjoy any reasonable prospects of success.

2.    THE APPLICATION FOR AN ADJOURNMENT

5    At the time of the hearing, the applicant was in immigration detention at Villawood Immigration Detention Centre, New South Wales (Villawood). The Court was advised that arrangements had been made on behalf of the Minister to bring the applicant to Court. However, the Court was advised that, when transport arrived, the applicant had declined to attend. Mr Prince, who had intended to appear pro bono, explained that this meant that he had been unable to speak with the applicant to obtain instructions to appear on his behalf. Given this, the Court stood down for a short time in order to enable the Minister’s solicitors to attempt to contact the applicant. The attempts to contact the applicant by telephone were unsuccessful. Inquiries made by the Minister, however, indicated that when the applicant had declined to accept transport to Court, he told an officer at Villawood that he knew nothing about today, asked to call his lawyer (in, we assume, his other proceedings referred to below) and, after doing so, said that the case had to be postponed.

6    The Court proceeded therefore on the basis that the applicant sought an adjournment. The Minister opposed the grant of an adjournment. As to the suggestion that the applicant was unaware of the date on which his application was listed, counsel for the Minister pointed out that the applicant had attended by telephone with the assistance of an interpreter, a directions hearing on 14 July 2017 before Griffiths J at which the application was set down for hearing on 3 August 2017. The Minister’s counsel further explained that, in the course of the directions hearing, the applicant had sought a later date for the hearing. However, Griffiths J had confirmed that the hearing would proceed on 3 August 2017.

7    Mr Prince also made submissions with respect to the adjournment application. He explained to the Court that Mr Guo has instituted separate proceedings in which he is represented by different counsel. Mr Prince also explained that he had spoken with the other counsel the previous day, there being an allegation raised in this application by the Minister as to abuse of process or inconsistent pleading. The other counsel, however, had indicated that he would be unable to obtain any instructions until after this appeal. Mr Prince submitted that in those circumstances, it would probably be preferable for the hearing to be adjourned, given the interaction between a new issue raised in the written submissions prepared by Mr Prince in this proceeding, on the one hand, and the issues raised in the other proceeding, on the other hand. Mr Prince further pointed out that, without instructions, he could not address the Court on the new issue because it lay outside the draft application filed by the applicant. Moreover, Mr Prince submitted that the proposed new ground raised a serious issue which should be properly ventilated. In addition he emphasised that this was a matter affecting the applicant’s liberty and that there were a number of previous cases in which the applicant had been successful.

8    The application for an adjournment was dismissed by the Court for reasons given at the hearing, namely, that the applicant had notice of the date for the hearing, that the applicant had attended, via telephone, the directions hearing before Griffiths J at which the conduct of the hearing was discussed and the application was set down for hearing, and that he had had ample time within which to consult a lawyer if he so wished, particularly given that he is not a stranger to this Court.

3.    THE GRANT OF LEAVE TO APPEAR AS AMICUS CURIAE

9    In the circumstances outlined above, Mr Prince advised that he had no instructions to appear on behalf of the applicant but sought to assist the Court instead as amicus curiae, that is, as a friend of the Court. The Court granted him leave to appear in that capacity on the basis that he could address the Court upon the proposed grounds in the draft application for judicial review filed by the applicant, but could not address the Court on the new issue raised only in the written submissions or seek to amend the relief so as to raise that issue.

10    We note that the new issue in question was whether the further re-notification given to the applicant on 6 March 2015 was not valid, with the result that the applicant continues to hold a visa and the Tribunal lacked jurisdiction to entertain the application for review. While accepting the limited basis on which leave to appear as amicus was granted, the amicus invited the Court nonetheless to consider the new issue. He suggested that the issue was apparent on the face of the Tribunal’s decision and did not involve a question of fact. Mr Prince also submitted that if the Court were to dismiss the applicant’s application, there would be a finding that the Tribunal had made a valid decision despite the fact that it may have lacked jurisdiction to make the decision.

11    We consider that there are serious doubts as to whether there is any merit in the new issue raised in the written submissions. However, the Court does not consider that it would be appropriate to consider that issue in any event. First, contrary to the amicus’ submission, a finding that no extension of time should be granted within which to seek judicial review is not a finding that the Tribunal has made a valid decision. Secondly, the new issue had not been raised by either of the proposed grounds in the applicant’s draft application for judicial review and, as earlier mentioned, Mr Prince was unable to obtain any instructions from the applicant to act on his behalf and to raise the new issue. Thirdly, counsel for the Minister submitted that the validity of the further re-notification was implicitly accepted in the separate proceedings in the Federal Court in which the applicant was represented by senior counsel, and, indeed, that an argument that the re-notification was invalid may undermine the very premise on which the applicant’s case in the separate proceeding rested or at the least give rise to potentially inconsistent findings. In those circumstances, the Court considers that it would be inappropriate for it to give any consideration to the new issue.

4.    BACKGROUND

4.1    The 1996 decision by the Minister’s delegate refusing the application for a Class 815 entry permit

12    The applicant, a citizen of China, arrived in Australia in 1988 on a six-month student visa. His wife and adult sons are Australian citizens who all reside in Australia. The applicant was granted a temporary entry permit on 28 November 1991. He subsequently applied for a Class 815 entry permit on 30 June 1994. That application, which was the decision under review before the Tribunal, was refused on 17 September 1996 (Tribunal’s 2017 reasons at [19]).

13    As the applicant already held a Class 437 entry permit, his application for the Class 815 entry permit was also taken to be an application for a Class 437 entry permit under sub-reg 437.711(2) of the Migration (1993) Regulations (Amendment) (Cth) (the 1993 Regulations). The applicant was granted a further Class 437 entry permit on 1 July 1994 (Tribunal’s 2017 reasons at [13]). By reason of item 437.52(a) of Schedule 3 to the 1993 Regulations, the Class 437 entry permit was valid until a decision was made on the applicant’s application for a Class 815 entry permit and the applicant was notified of that decision in accordance with reg 2.8 of the 1993 Regulations.

14    By operation of sub-reg 4(2) of the Migration Reform (Transitional Provisions) Regulations 1994 (Cth) (the 1994 Regulations), the applicant’s Class 437 entry permit was taken to continue in effect as a transitional (temporary) visa subject to the same conditions. Further, by operation of reg 23 of the 1994 Regulations, his application for the Class 815 entry permit was taken to continue as an application for a transitional (permanent) visa, but was to be decided according to the criteria that applied to a Class 815 entry permit.

15    On 17 September 1996, the then Deputy Secretary of the Department of Immigration and Ethnic Affairs (the Deputy Secretary) acting as a delegate of the Minister refused the application for a Class 815 entry permit under s 501(1) of the Act in the exercise of discretion, having found that the applicant was not of good character (the 1996 decision). In the Deputy Secretary’s handwritten reasons for decision at the end of the detailed Departmental Minute recommending that he find the applicant was not of good character and refuse the grant of a visa, the Deputy Secretary had regard among other things to the following:

•    …a pattern of deception in Mr Guo’s conduct over a number of years

•    …Mr Guo’s association with persons or groups which, on the balance of probabilities, have been involved in criminal conduct

•    …on the balance of evidence before [the Deputy Secretary], Mr Guo would be likely to engage in criminal conduct if he was allowed to remain in Australia and that this would represent a danger to the Australian community.

16    The applicant was given notice of the decision to refuse his application for the Class 815 entry permit by letter dated 25 October 1996 (the original notification) (Tribunal’s 2017 reasons at [23]).

4.2    Invalid notifications of the 1996 decision and prior applications for merits review

17    The applicant’s application to the Tribunal for merits review of the 1996 decision by the Deputy Secretary was dismissed by the Tribunal on 3 November 1997 as a result of his failure to actively pursue it (Tribunal’s 2017 reasons at [25]).

18    On 17 January 2003, the applicant lodged two further applications with the Tribunal, namely, to reinstate his earlier application for merits review and for an extension of time within which to lodge a new application. Those applications were refused by the Tribunal on 9 July 2004 (Tribunal’s 2017 reasons at [26]-[27]).

19    At some later point in time, the Department and the applicant became aware that the original notification had failed to comply with the mandatory requirements for a valid notice because it did not inform him of the time limits within which to apply for merits review in the Tribunal (Tribunal’s 2017 reasons at [28]-[29]).

20    In order to remedy that deficiency, on 3 December 2014, the applicant was served with a further notification of the 1996 decision (the 2014 re-notification). However, that notification was also a nullity (Tribunal’s 2017 reasons at [33]).

4.3    The 2015 revised re-notification of the 1996 decision and application to the Tribunal

21    Finally on 6 March 2015, a revised re-notification of the 1996 decision was sent to the applicant in order to correct the error in the 2014 re-notification (the 2015 revised re-notification). The validity of the 2015 revised re-notification was not disputed before the Tribunal (Tribunal’s 2017 reasons at [34]-[35]). At that time, the applicant’s Class 437 entry permit had ceased to be in force by virtue of s 501F(3) of the Act and he became an unlawful non-citizen (Tribunal’s 2017 reasons at [38]-[39]).

22    On 18 March 2015, the applicant filed the application for merits review of the 1996 decision, being the application resolved by the Tribunal’s decision on 10 May 2017.

4.4    The Tribunal’s decision

23    We note that the Tribunal published both redacted and un-redacted reasons for its 2017 decision, with the former being reproduced in the appeal book and the latter, in a supplementary appeal book. There were no differences between the redacted and un-redacted versions of the 2017 reasons which were relevant to the application for an extension of time or to the determination of the application for judicial review if an extension were granted. In those circumstances, we have referred to the paragraph numbers of the redacted version of the Tribunal’s reasons.

24    The Tribunal found that the applicant was not of good character within the meaning of s 501 of the Act as that provision stood immediately before 1 June 1999 based on a number of findings, including:

(1)    the applicant’s prior criminal convictions, including being in possession of a falsified foreign government passport and being in possession of goods reasonably suspected of being stolen (both of which were committed in circumstances found by the Tribunal to be not only a serious breach of the law, but also evidence of his want of good character) (Tribunal’s 2017 reasons at [246]-[258]);

(2)    on the balance of probabilities, the applicant’s involvement in other past criminal conduct including illegal gambling, drug use and a conspiracy to supply a commercial quantity of heroin (Tribunal’s 2017 reasons at [254]-[291]); and

(3)    his association with persons involved in drug dealing and organised crime, and his exercise of “power and authority” over persons involved in organised crime (Tribunal’s 2017 reasons at [292]-[306]).

25    The Tribunal concluded that:

333. Balancing all of the considerations that we have accepted to be relevant, we are satisfied that the seriousness of Mr Guo’s proven criminal conduct and his proven association with persons involved in criminal conduct show such want of good character as to outweigh what we have found to be relatively modest factors in his favour – with the exception of the distress that his removal will cause to his sons. Even with that significant factor added to the balance, we would still exercise the discretion to refuse Mr Guo the visa he has sought.

334. We accept the Respondent’s submissions that s 501 as was in force requires us to take into account the protection of the Australian community. We have found Mr Guo’s conduct and adverse character as proven in these proceedings is sufficiently serious as to engage those principles. We do not find the countervailing factors sufficient to outweigh that. We decline to exercise the discretion in his favour.

5.    SHOULD AN EXTENSION OF TIME BE GRANTED?

5.1    Discretion to grant an extension of time

26    The applicant requires an extension of time within which to seek judicial review of the Tribunal’s decision in the Federal Court because his application was filed outside the 35 day time limit imposed by s 477A(1) of the Act. Under s 477A(2), this Court has a discretion to make an order extending time where the Court is satisfied that it is necessary in the interests of justice to make the order. In considering whether to exercise the discretion in an applicant’s favour, the Court considers among other things the applicant’s reasons for delay and whether the application, if an extension of time were granted, would have any prospects of success: Metera v Administrative Appeals Tribunal [2008] FCA 1627 at [22]-[23] (Cowdroy J) (quoting Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299; [2007] FCA 591 at [35] (Stone J)); MZYYO v Minister for Immigration and Citizenship [2013] FCA 49; (2013) 214 FCR 68 at [30] (Murphy J) (applying Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J)).

27    In his affidavit in support of the extension of time, the applicant referred to a number of difficulties with filing the correct documentation from immigration detention. No issue is taken with his explanation for the delay. However, the Minister opposes the grant of an extension of time on the basis that the application lacks any reasonable prospects of success. In considering this question, the proposed grounds of judicial review should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see by analogy MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38] (the Court)).

5.2    Does Ground 1 have any merit (alleged failure to have regard to the grant of previous bridging visas)?

28    Proposed Ground 1 of the draft application for judicial review contends that the Tribunal failed to take account of the fact that the Minister had granted various bridging visas to the applicant from 1 September 1994 to 1 July 2011. The 12 bridging visas granted sequentially to the applicant over this period are set out at [46] of the Tribunal’s reasons. The amicus, however, submits that the Tribunal erred in finding at [47] that:

As a matter of prudence, lest we be mistaken as to their significance, we note that those bridging visas were issued. However, we proceed on the basis that they were redundant, as a matter of law, and irrelevant to the matter before us.

29    First, the amicus submitted that while the bridging visas were practically unnecessary, the Tribunal wrongly found that they were “redundant as a matter of law”, that is that they were “legally ineffective” or invalid. It was not in issue that throughout the 20 year period, s 76 of the Act provided that the fact that a non-citizen holds a bridging visa does not affect an application for a visa of a different class or the grant of such a visa. As such, the fact that the applicant continued to hold a valid transitional (temporary) visa until at least 6 March 2015 did not “cancel” the last of the bridging visas. However, the Tribunal was plainly not suggesting that the bridging visas were “legally ineffective”. Rather, having accepted that the applicant held a valid transitional (temporary) visa at [45] of its reasons, the Tribunal simply found that the bridging visas were “redundant”, that is, unnecessary, “as a matter of law.” The amicus’ submission turns on a construction of [47] of the Tribunal’s 2017 reasons which is, with respect, without merit.

30    Secondly, as the amicus accepted, Public Interest Criterion 4001 requiring compliance with a character test before a person could be granted a visa did not apply to the applicant contrary to his proposed first ground of judicial review. Nonetheless, the amicus submitted that it would have been open to the Minister to refuse the grant of any of the bridging visas under s 501 of the Act in its various forms over the 20 year period on the basis that she or he was satisfied that the applicant did not meet the character test. In failing, therefore, to have regard to the fact that the Minister had not refused the grant of any of the 12 bridging visas under s 501 despite most of the matters relied on by the Tribunal in 2017 being known to the Minister, the amicus submitted that the Tribunal failed to have regard to a relevant consideration and wrongly found that the grant of the bridging visas was “irrelevant”.

31    Again the ground has no reasonable prospects of success. At no time was there any express requirement for such considerations to be taken into account under the Act; nor was any basis suggested on which such a requirement could be implied. To the contrary, as the Minister’s counsel submitted, the proposition that the fact that the applicant held a bridging visa should have affected the assessment of whether he should be granted a Class 815 entry permit is contrary to s 76 of the Act which, at all relevant times, provided that the holding of a bridging visa “does not … affect” the grant of a visa of another class. Furthermore, the Tribunal’s task is to make the correct and preferable decision at the time that it makes its decision, exercising all of the powers and discretions conferred upon the original decision maker: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286. In any event, as the Minister submitted, to require the Tribunal to take account of the grant of bridging visas despite the capacity to refuse them on character grounds, in determining whether the applicant is of good character for the purposes of granting him a visa of a different class, would effectively subvert the independent nature of merits review.

5.3    Does Ground 2 have any merit (misconstruction of the test in s 501)?

32    Ground 2 of the draft judicial review application alleges that the Tribunal’s finding at [309] (which relates to the relevance of “enduring moral character”) is illogical. However, in written submissions, and at the hearing, Mr Prince’s analysis of Ground 2 focussed on the question of whether the Tribunal had misconstrued the test in s 501 of the Act as it read in 1996. While this may have been a generous view of the reach of Ground 2, counsel for the Minister did not take issue with this approach, either in written submissions or at hearing. Mr Prince confirmed at hearing that he did not advance any submissions in support of the illogicality argument. As that aspect of the ground was not pressed at hearing and the ground was otherwise unsupported by submissions from the applicant, it is not necessary to consider it. The Court has therefore taken the arguments advanced at the hearing in support of Ground 2 as having encompassed that ground.

33    The amicus submitted that the Tribunal’s error in this regard is apparent from the approach which it adopted at [309] of its reasons for decision as follows:

… [R]eferences to good character, in s 501 as was in force, must be understood as references to a person’s enduring moral character. We noted hypothetically, that if the Tribunal was to find that 20 years ago Mr Gao had not been of good character but had since undergone genuine change such that, as at the time of this review he had become [a] person of (enduring) good moral character, a decision based on his former character could not be sustained.

34    The amicus submits that the test as expressed and applied above distorts the statutory test in s 501 to a two-step process: first, was the applicant of bad character in 1996; and secondly, has the applicant established that he has demonstrated enduring good moral character since that time? The amicus also submitted that the Tribunal’s approach was to ascertain whether the delegate had erred in finding that the applicant was not a good character in 1996 and, if there was no error in 1996, to impose the onus on the applicant to demonstrate a reversal of that conclusion as to his character on an enduring basis. Contrary to the Tribunal’s alleged approach, the amicus submitted that s 501(2)(a) and (b) as at the relevant time required the Tribunal to determine in 2017 simply whether it “is satisfied that the person is not of good character”, emphasising the use of the present tense. Further, the amicus submitted that:

There is a practical consequence to the Tribunal’s erroneous statement of the test in s 501 in respect of time. By fixating on the events which had been dealt with and described by the delegate in the 1996 decision, the Tribunal did not give proper weight or due consideration to the fact that the events about which it was concerned had happened many years ago; and had not taken into account the absence of any such evidence over a very significant period of time leading to the date on which the Tribunal’s decision was to be made.

… it was the Tribunal’s task to focus on Mr Guo’s character as it is now, not 20 years ago when he was a much younger man.

35    Notwithstanding the assistance afforded by the amicus’ careful submissions, proposed Ground 2 takes [309] of the Tribunal’s 2017 reasons out of context and lacks any reasonable prospects of success. First, the Tribunal correctly found at [77] that:

The Tribunal does not conduct its review on the basis of the facts as they stood when the decision was made. Rather the Tribunal’s duty is to make the correct and preferable decision in light of the circumstances applying at the time of review (Shi v Migration Agents Registration Authority (2008) 235 CLR 286…).

(emphasis added)

36    Secondly, in the passage at [309], the Tribunal referred to earlier hypothetical positions raised by it which expressly acknowledged that the applicant’s character may have changed for better or worse since the 1996 decision (Tribunal’s 2017 reasons at [78] and [82]). As the Minister submitted, those hypothetical positions did not carry with them any implication that the Tribunal was required to, or would, make a finding as to the applicant’s character as at the time of the primary decision in 1996. Furthermore, in the following paragraph, the Tribunal found that the applicant did not seek to make out a case that his character had undergone genuine change over the last 20 years, but rather that he had acquired an undeserved reputation as a result of which he was unfairly treated with suspicion by law enforcement (Tribunal’s 2017 reasons at [310]). The Tribunal rejected that premise based upon the evidence before it, including evidence post-dating the 1996 decision, which it had carefully analysed in detailed reasons.

6.    CONCLUSION

37    The application for an extension of time within which to appeal should be dismissed with costs on the ground that any appeal would not have sufficient prospects of success and it is not in the interests of justice that the extension of time be granted. The Court expresses its gratitude to Mr Prince for initially accepting the brief to act pro bono for the applicant and ultimately in the circumstances appearing as amicus.

Associate:

Dated:    15 March 2018