FEDERAL COURT OF AUSTRALIA

Fualau v Minister for Home Affairs [2020] FCAFC 11

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent’s costs, to be 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    By application filed on 24 October 2019, the applicant seeks an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) in which to file a notice of appeal from orders of the Federal Court made on 20 September 2019. The primary judge dismissed an application seeking judicial review of a decision of the second respondent (the Tribunal) affirming a decision of a delegate of the first respondent (the Minister), made under s 501CA(4) of the Migration Act 1958 (Cth) (the Act), not to revoke the mandatory cancellation of the applicant's Special Category Temporary (Subclass 444) visa under s 501(3A) of the Act.

2    Section 501(3A) of the Act mandates that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the "character test" (because of the operation of ss 501(6)(a) and 501(7)(a), (b) or (c), or s 501(6)(e)) and the person is serving a sentence of imprisonment, on a full-time basis, in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A person does not pass the "character test" if (amongst other things) the person has a "substantial criminal record" which includes having been sentenced to a term of imprisonment of 12 months or more (see s 501(7)(c) of the Act). Before the Tribunal and the primary judge, the applicant did not dispute that he has such a criminal record. As the primary judge noted, in December 2016 he was convicted of the offence of aggravated burglary with an offensive weapon and sentenced to 33 months' jail (at [5]).

3    Cancellation of the applicant's visa was therefore mandatory under s 501(3A). A delegate of the Minister then invited the applicant to make representations about revocation of the cancellation decision, as required by s 501CA(3). The applicant made representations and did not contend that he passes the character test. On 24 May 2018, having considered the applicant's representations, the delegate was not satisfied that there was "another reason" why the mandatory cancellation should be revoked under s 501CA(4). The applicant appealed the delegate's decision to the Tribunal and on 22 August 2018 the Tribunal affirmed the delegate's decision.

4    The applicant then brought an application for judicial review of the Tribunal's decision to the Federal Court under s 476A(1)(b) of the Act. Section 476A(2) stipulates that the jurisdiction of the Federal Court is the same as the jurisdiction of the High Court under s 75(v) of the Constitution. The applicant sought an order of certiorari to quash the decision of the Tribunal and an order of mandamus requiring the Tribunal to determine the application according to law on the basis of alleged jurisdictional error. On 20 September 2019 the primary judge dismissed the application.

5    Pursuant to r 36.03 of the Rules, an appeal from the decision of the primary judge was required to be filed by 18 October 2019 (being 28 days after the orders were pronounced). As a result, the applicant was 6 days late when he filed his application for an extension of time.

6    Pursuant to r 36.05, the Court may grant an extension of the time within which an appeal is to be filed. The principles applicable to the exercise of the Court's discretion were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which were adopted by the Full Federal Court in Parker v R [2002] FCAFC 133 at [6]. Relevant factors include the reason for the delay; any prejudice to the respondent caused by the delay; and the merits of the substantial application. Leave will not be granted where there are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. Special circumstances often arise in immigration cases. Where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7]. However, the merits of the appeal will remain a relevant factor: N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 at [13].

7    The applicant was represented by Counsel before the primary judge, but is self-represented on this appeal. His application for an extension of time was supported by an affidavit sworn 24 October 2019. The affidavit states that the applicant seeks to appeal the decision of the primary judge and attached a statement explaining the reason that the applicant failed to file an appeal within the prescribed time. In short, the applicant explained that he is currently residing in the Melbourne Detention Centre. On 17 October 2019 he asked an officer at the Centre to help him fax his application to the Court (as the applicant does not otherwise have access to a fax machine). The officer took the application and the applicant understood that the fax was sent. On 21 October 2019, the applicant learned that the Court did not receive the application. On checking, it was discovered that the fax had not been sent due to a faulty machine. The applicant was not challenged on the foregoing evidence and we accordingly accept it.

8    If the only difficulty with the application was the delay in commencing the appeal, we would have extended time having regard to the short period of delay and the circumstances that caused the delay. However for the reasons we explain, we consider the appeal lacks merit and accordingly the application for an extension of time should be refused.

9    The applicant has filed a draft notice of appeal which contains two grounds of appeal but they are essentially the same. It alleges that the learned primary judge erred by failing to find that the Tribunal failed to accord the applicant procedural fairness.

10    Failure to accord procedural fairness was not a ground of review raised before the primary judge. The applicant raised a single ground of review below, as follows:

The Administrative Appeals Tribunal failed to consider the applicant's ties to Australia, including the impact upon his family of non-revocation of the visa cancellation.

11    The primary judge rejected that ground. Notwithstanding that the applicant does not point to any error in the primary judge's approach to that ground, for completeness and because the applicant is self-represented in the appeal, we have carefully considered the reasons of the primary judge. We cannot identify any error in the decision of the primary judge. His Honour accepted (at [10] - [11]) the submissions of the Minister that the Tribunal:

(a)    recorded that the applicant arrived in Australia in 2002 with his wife and their then three children, that they had had three children since, and that the applicant had resided in Australia since 2002 (at [2]);

(b)    summarised the applicant's oral and written evidence to the Tribunal, including letters from the applicant's family (although the Minister's submissions erroneously recorded the Tribunal as having done so at [8] and [10]);

(c)    took into account the character references in support of the applicant, including from his mother who set out what he had done to support her (at [31]);

(d)    in its findings under "strength, nature and duration of ties", took into account that the applicant has resided in Australia since 2002, that his widowed mother and some of his siblings live in Australia, and that his children live here, and found that it was significant that the applicant began offending four years after arriving in Australia (at [63]);

(e)    took into account the impact of the applicant's absence on his mother (at [65]); and

(f)    in its conclusion, stated that it was "fully conscious that there would be a significant effect on [the applicant], his mother, his extended family and, notwithstanding recent events, his wife and children if he loses the right to remain in Australia" (at [71]).

12    The primary judge dismissed the ground of review as having no substance (at [14]). With respect, we agree.

13    As stated above, in his draft notice of appeal the applicant seeks to raise a ground of alleged error in the Tribunal's reasons that was not raised before the primary judge. It is important to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial: Coulton v Holcombe (1986) 162 CLR 1 at 7. Nevertheless, an appellate court may allow a point to be raised for the first time on appeal where it is expedient and in the interests of justice and where the new ground could not have been met by calling evidence and would not have resulted in the case being differently conducted: Water Board v Moustakas (1988) 180 CLR 491 at 497. This Court has recognised that special circumstances frequently arise in immigration cases. The usual approach of the Court in such cases was described by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 in the following terms (at [48]):

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

14    In CGA15 v Minister for Home Affairs [2019] FCAFC 46, the Full Court observed (at [36]):

There is a particular sensitivity to whether the interests of justice favour a grant of leave in refugee cases, because an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ).

15    In our view, the same can be said of cases involving the removal of persons from Australia on character grounds.

16    As the above cases emphasise, the merit of any proposed new ground is an important consideration to the grant of leave. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25]:

The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law.

17    This does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to decide whether the proposed new appeal ground has a reasonable prospect of success.

18    As mentioned earlier, the applicant did not file any submissions or statement of any kind before the hearing articulating a basis for the contention that the Tribunal failed to accord him procedural fairness. He appeared before us on the hearing of the application and made oral submissions directed to the question whether the mandatory cancellation should be revoked under s 501CA(4). In summary, the applicant submitted that he had not previously understood the law concerning the intervention orders to which he was subject, but he now understood his obligations; he regrets his past actions and has now reformed; he is a hard-working man who loves his wife and children and does not wish to be separated from them.

19    The power under s 501CA(4) to revoke the mandatory cancellation of the applicant’s visa is entrusted to the Minister (and the Tribunal on review of the Minister’s decision), and accordingly the decision whether to exercise that power is for the Minister (and the Tribunal on review) to make. The Federal Court is not empowered to make that decision. The Court’s role at first instance is limited by s 476A(2) to judicial review of the Tribunal’s on the basis of jurisdictional error. On an appeal under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), the Court must determine whether the primary judge was correct to find that the decision of the Tribunal was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1.

20    The applicant has not identified any failure by the Tribunal to accord procedural fairness and nothing in the Tribunal's reasons indicates such a failure. We can see nothing to suggest that the applicant has reasonable prospects of establishing that the Tribunal failed to accord him procedural fairness. Accordingly, it is appropriate to refuse to grant leave to raise the new ground.

21    In the circumstances, there is no utility in granting the extension of time sought by the applicant, as the proposed appeal has no merit. We therefore dismiss the application with costs.

Associate:

Dated:    12 February 2020