Federal Court of Australia

NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30

ORDERS

THE COURT ORDERS THAT:

1.    The submissions filed by the appellant in proceeding no. NSD 102 of 2021 on 18 February 2021 are treated also as submissions in reply filed in the appeal.

2.    Leave to raise the proposed new grounds at paragraphs 2 and 3 of the amended notice of appeal is refused.

3.    The appeal is dismissed.

4.    The appellant is to pay the first respondent’s costs 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    The appellant is a citizen of Tonga whose Bridging E (Class WE) Bridging E (General) (Subclass 050) visa (the visa) was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) (the cancellation decision). It is convenient in these reasons to refer to the appellant as “Mr NWQR”, as this is the acronym under which he is known in these proceedings given possible claims by him to protection by Australia. In so doing, we intend no disrespect.

2    Mr NWQR appeals from a decision by a single judge of this Court dismissing his application for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal (the Tribunal), on 3 March 2020. The Tribunal had affirmed the decision of a delegate of the Minister not to revoke the cancellation decision.

3    At the hearing of the appeal, leave was granted to the appellant to file the amended notice of appeal annexed to the affidavit of Dr Etienne Hugo, solicitor, affirmed on 21 January 2021. Ground 1 of the amended notice of appeal contends that the primary judge erred because the appellant was entitled to legal representation before the primary judge. That ground lacks any merit and must be dismissed.

4    While the Minister did not oppose the grant of leave to file the amended notice of appeal, the Minister opposed leave sought by the appellant to rely upon grounds 2 to 7 because, as the appellant accepted, these grounds raised issues which had not been raised at trial. In this regard, we note that there were two grounds numbered 6, as a result of which it is convenient to refer to the second ground numbered 6 as ground 7. For the reasons set out below, the Court refused leave to the appellant to rely upon the new proposed grounds 4 to 7 of the amended notice of appeal. Furthermore, while the Court reserved its decision on the question of whether leave to raise the new grounds 2 and 3 should be allowed, leave should also be refused to raise those grounds for reasons we later explain.

5    It follows that the appeal must be dismissed with costs.

6    Finally, we note that the appellant’s visa would have expired in any event on 3 March 2021. However, the Minister appropriately did not submit that lack of utility was a reason for dismissing the appeal because he accepted that “there is utility in terms of any future visa processes under the Act: cf Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [83] per French J” (respondents’ submissions dated 8 February 2021 (RS) at [2(b)]).

2.    BACKGROUND

2.1    Mandatory cancellation of the appellant’s visa

7    The appellant is a young male adult holding Tongan citizenship. He arrived in Australia while still a minor (Appeal Book (AB) 214 at [30]). On 20 September 2018, the appellant was convicted of three sexual assault offences involving his female cousin who was aged between five and nine years of age at the time of the offending (Supplementary Appeal Book (SAB) 48–49). In passing sentence, the sentencing judge held among other things that:

The offences for which the offender is to be sentenced are offences of great seriousness…

The courts recognise that child sexual abuse offences inevitably give rise to long term damage to child victims. In the case of R v Gavel [2014] NSWCCA 56, at para 110 the court said this:

This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives… Sexual abuse of children inevitably give [sic] rise to psychological damage…

In the English decision of R v G [2008] UK House of Lords 37, 2009, 1AC 92, Baroness Hale of Richmond, at para 49, referred to the “long-term and serious harm, both physical and psychological, which premature sexual activity can do.” The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity (see Clarkson v R [2011] VSCA 157)

(SAB 55).

8    By virtue of s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW), Mr NWQR was “taken to be subject to a parole order (a “statutory parole order”)” directing his release on parole at the end of the non-parole period (SAB 73). The earliest date on which the appellant was eligible for parole, having regard to the longest sentence, was on 18 August 2019 (Sentence Warrant issued by the District Court of NSW dated 20 September 2018 at SAB 71).

9    On 22 May 2019, the appellant’s visa was mandatorily cancelled under s 501(3A) of the Act as the delegate was satisfied that the appellant did not pass the character test because he had a substantial criminal record and was then serving a sentence of full-time imprisonment for a criminal conviction. The appellant has not at any stage challenged the finding that he does not pass the character test.

2.2    The Tribunal’s decision not to revoke the cancellation decision

10    On 9 December 2019, the delegate, having regard to representations made by the appellant, decided not to revoke the cancellation decision under s 501CA(4) of the Act (SAB 34). Pursuant to s 501CA(4) of the Act, the Minister (and therefore her or his delegate) may revoke a cancellation decision under s 501(3A) if:

(a)    the person makes representations in accordance with the invitation; and

   (b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

11    The appellant applied to the Tribunal on 19 December 2019 for a review of the delegate’s decision not to revoke the cancellation of his visa (SAB 1). The appellant was represented before the Tribunal by counsel and solicitors and gave evidence before the Tribunal.

12    On 3 March 2020, the Tribunal affirmed the delegate’s decision (AB 203). In determining whether it was satisfied that there was “another reason” why the cancellation decision should be revoked, the Tribunal weighed a number of considerations which it considered in favour of the appellant (namely, the best interests of his minor siblings, his ties to the Australian community, and the impediments he may face if removed to Tonga) against a number of considerations adverse to the appellant (namely, protection of the Australian community, the risk of reoffending and the expectations of the Australian community). As to the latter, the Tribunal accepted that there was some evidence of the fact that the appellant had been rehabilitated and represented virtually no risk of re-offending (Tribunal’s reasons (TR) at [36]). However, the Tribunal was concerned that the appellant did not accept any of the facts relating to the commission of the first offence being a matter not dealt with in any of the psychological reports relied upon by the appellant (TR at [50]–[53]), and found that it could not be satisfied that the appellant presented minimal or no risk of future offending (TR at [55] and [63]). It also found that the offences were “so extremely serious, having been committed on three separate occasions, [that] it cannot be said that this is isolated behaviour” and that the last occasion on which an offence was committed involved “a determined deliberateness in the Applicant’s offending by using a chair to block entry to the room where he was perpetrating the offence” (TR at [56]).

13    Furthermore, while no evidence was given by the appellant of any relevant fear of harm on return to Tonga, his counsel made submissions after the hearing to the Tribunal about Australia’s non-refoulement obligations (appellant’s post-Tribunal hearing submission at AB 193–194). However, the Tribunal did not accept that any harm which the appellant might experience if returned to Tonga rose to such a level as to engage Australia’s non-refoulement obligations (TR at [70]–[77]). In this regard, the Tribunal found that:

75. Should he be returned to Tonga, it is accepted by the Tribunal that the Tongan community, particularly the Church community of Latter-day Saints, is inevitably bound to discover that the Applicant has been convicted of serious sexual offences. The Applicant, the Tribunal is prepared to accept, does have fear of physical harm on the basis of his Latter-day Saints faith. This is likely to be outside a school context. The Tribunal accepts that members of the Tongan community, including his Church, will come to hear of the Applicant’s offending. Exhibit 4, the U.S. Department of State, does not report any significant adverse societal activity affecting religious freedom, as at 2018, although it is noted that the father gave evidence that he was the subject of some violence before coming to Australia.

76. Should the Applicant be “picked on and bullied” on his return to Tonga or fear physical harm as a basis of his Latter-day Saints faith, the Tribunal regards this potential physical and emotional harm, should it occur, as not a reason to revoke the cancellation of his visa. In the Tribunal’s opinion, it is not a matter which gives rise to non-refoulement obligations. In the religious context, this is particularly so where, on the evidence, the Latter-day Saints faith (Exhibit 4) comprise 19% of the total population and the Tongan Constitution provides for freedom of religious practice, worship and assembly. Such bullying, physical conflict or discrimination as there might be on all the evidence, does not leave the Tribunal to conclude this enlivens non-refoulement obligations.

14    The Tribunal therefore concluded that international non-refoulement obligations were not engaged but the issues of whether Mr NWQR may be bullied and discriminated against were relevant to the question of impediments if removed in relation to him being sent back to Tonga (TR at [77]). In the latter context, the Tribunal found that:

82. Although the Applicant is of Tongan descent and lived with his family in that type of cultural environment in Australia, nonetheless, having lived his formative years since 12 years of age in Australia, the Tribunal considers that it will be traumatic emotionally and socially for the Applicant to be returned to Tonga. Furthermore, although the Tribunal has formed a view about non-refoulement obligations, nonetheless, the Tribunal is of the view that there is a real likelihood of his reason for being returned to Tonga being made public, at the very least, within the Church community. Furthermore, the Tribunal accepts that either because of his religion or more likely because of the knowledge of his offending in Australia, or both, the Applicant is likely to be subject to harassment, ridicule and bullying, perhaps even with a physical component. The Tribunal does, however, recognise that the Applicant is of a relatively large stature with a muscular build… from which the Tribunal concludes, he would not likely be physically intimidated. Taking all of these matters into account, it is the Tribunal’s view that this consideration weighs in the Applicant’s favour.

15    The Tribunal concluded that a number of factors were in the appellant’s favour, “including particularly the evidence of his laudable behaviour since being charged whilst on bail and in custody and in immigration detention” (TR at [83]). However, having found that his criminal conduct towards the young child by two instances of penile penetration which he still refused to admit despite conviction by a jury was “particularly egregious”, the Tribunal concluded that the factors against him weighed so strongly against revocation that there was no other reason to substitute a different decision for that of the delegate (TR at [84]–[85]).

2.3    The application for judicial review of the Tribunal’s decision before the primary judge

16    On 7 April 2020, the appellant’s current solicitors filed an originating application seeking judicial review of the Tribunal’s decision (AB 229). The relief sought was an order to quash the Tribunal’s decision and a writ of mandamus directed to the Tribunal requiring it to determine the application for review according to law. The grounds of the application were that the Tribunal fell into jurisdictional error by reason of a breach of procedural fairness and in failing to discharge its statutory task. Particulars were given of each of these grounds. The primary judge described the originating application as “coherent”. However, his Honour explained that the appellant “was unrepresented at the hearing of that application and was unable to make any submissions either in writing or orally beyond reliance upon a letter to the Court from his partner going to the merits of his situation, which could not be taken into account” (primary judge’s reasons (PJ) at [4]). The primary judge then carefully considered whether either of the grounds of review pleaded in the originating application were established and held that they were not. As such, the primary judge dismissed the originating application with costs.

17    No challenge was made on the appeal to any aspect of the primary judge’s reasons, although ground 1 of the amended notice of appeal challenged the procedural fairness of the hearing before his Honour on the basis that the appellant did not have legal representation.

2.4    Institution of proceedings NSD 102 by the appellant against the Commonwealth and the Minister for Home Affairs

18    On the day before the hearing of this appeal, Mr NWQR instituted separate proceedings against the Minister for Home Affairs and the Commonwealth (NSD 102 of 2021). Neither the Minister for Home Affairs nor the Commonwealth are parties to the present appeal. Written submissions were also filed by the appellant later that evening (that is, on 18 February 2021) at 6.34pm in NSD 102 of 2021 (the NSD 102 submissions). We note that these submissions included a reply to the Minister’s submissions in the appeal and were accordingly treated as filed also in the appeal.

19    In the NSD 102 submissions, the appellant/applicant submitted that the new proceeding should be “join[ed]” with this appeal on the basis that common questions of fact and law would arise in both sets of proceedings and that both matters should be listed before this Full Court. Mr NWQR also accepted that “Grounds (4)-(7) of the amended notice of appeal and grounds (1)-(4) of the original application are identical constitutional grounds” (NSD 102 submissions at [6]).

20    Mr NWQR further submitted by way of explanation for the separate proceedings that:

… [t]he appellant has applied to this Court for leave to raise seven fresh grounds that were not raised in the review proceedings below, at first instance. It is established that the Court may grant leave to rely on new grounds if there are “exceptional circumstances”, Metwally v University of Wollongong (1985) 60 ALR 68 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ., at 71. The appellant has proffered a reasonable explanation as to why the grounds were not raised at first instance, given he was without legal representation. There is no prejudice to the parties. Most importantly, the new grounds not only raise an arguable case, but articulate some of the most important principles from the Western juridical tradition. Those principles should be upheld and protected and leave should be granted. However, the appellant acknowledges that he is prejudiced and disadvantaged by the higher threshold to be applied when raising fresh grounds on appeal, [V]UAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 per Koefel [sic], Weinberg and Stone JJ., from [46]-[48]

(NSD 102 submissions at [5]) (emphasis added).

21    As such, Mr NWQR’s reason for instituting the proceeding in NSD 102 was precisely to ensure that these grounds could be litigated, and evidence relevant to the grounds led, even if leave to raise proposed new grounds 4 to 7 of the amended notice of appeal were refused.

22    At the hearing, Ms Francois appeared on instructions for the Minister for Home Affairs in NSD 102 but had no instructions to appear for the Commonwealth. No appearances had in any event been filed for the Minister for Home Affairs nor for the Commonwealth.

23    It was apparent from oral argument by Mr Williams for Mr NWQR that he sought to defer argument on those grounds of the appeal which overlap with the issues in NSD 102 until the pleadings in NSD 102 had closed, notices under s 78B of the Judiciary Act 1903 (Cth) in that proceeding had been served on the Attorneys-General, and evidence had been filed. However, Mr Williams pressed Mr NWQR’s application for the two proceedings to be joined. No explanation was given by Mr Williams as to why the separate proceeding in NSD 102 was instituted only the day before the hearing of this appeal or why the application for joinder was foreshadowed only in written submissions filed and served after close of business on the day before the appeal.

24    At the hearing of the appeal and after hearing submissions from counsel for the parties, the Full Court refused the application for joinder of this appeal and NSD 102, and refused leave to raise grounds 4 to 7 inclusive of the amended notice of appeal. The question of whether to grant leave to raise new grounds 2 and 3 was reserved.

3.    GROUND 1, AMENDED NOTICE OF APPEAL

25    By ground 1, Mr NWQR contends that he was denied the right to legal representation contrary to his right to natural justice, equality of arms, and a fair hearing and that he did not have the benefit of any written submissions. Counsel for Mr NWQR, Mr Williams, submitted that Mr NWQR was impecunious and therefore unable to afford legal representation and disadvantaged by reason of being in immigration detention and his limited education to year 10 and low IQ. By contrast, Mr Williams pointed out that the Minister was represented by experienced counsel and solicitors in order to identify the inequality between the two litigants. In the alternative, Mr NWQR contended that the primary judge erred in failing to stay the hearing until he was afforded legal representation, equality of arms and a fair hearing, although no argument was developed in support of this contention.

26    In support of ground 1, Mr NWQR relied upon Ch III of the Commonwealth Constitution, the decision of the High Court in Dietrich v The Queen (1992) 177 CLR 292 (Dietrich) at 326 (Deane J) and 362 (Gaudron J), the common law of procedural fairness, and “customary international law, which has been adopted or incorporated into the common law of Australia” citing relevantly Dietrich at 321 (Brennan J) and Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 (Brennan J) (appellant’s submissions dated 21 January 2021 (AS) at [3]). However, the decision in Dietrich established that an accused person in a criminal trial has no right or entitlement to publically funded legal representation at common law or under the Constitution: Dietrich at 297–298 (Mason CJ and McHugh J), 317 (Brennan J), 330 (Deane J), 343 (Dawson J), 356 (Toohey J), and 364–365 (Gaudron J). As Gaudron J observed in Dietrich at 365, “[t]he question whether public funds should be allocated for the legal representation of persons charged with criminal offences is one for governments, not the courts.” While Mr NWQR’s counsel sought to distinguish Dietrich on the basis that the present case was a public law matter concerning an impecunious individual in immigration detention, no principled reason was given as to why such circumstances should lead to any different result. Nor, in line with the decision in Dietrich does the appellant’s reliance upon Ch III of the Constitution advance his claims. Relevantly, Jagot, Yates and Stewart JJ accepted the Minister’s submission in CMU16 v Minister for Immigration and Border Protection [2020] FCAFC 104 at [65], that “[n]othing is added to a procedural fairness ground by seeking to constitutionalise it because the requirements of the Constitution do not exceed what is required by the common law principles of fairness.” As such, as the Minister submits, “the appellant’s invocation of customary international law … rises no higher than an argument about what the common law requires”: (RS at [18]).

27    There are unfortunately many individuals who appear before the Federal Court and in other courts without legal representation, including in migration matters where the individuals concerned may also be impecunious, in immigration detention, and suffer other disadvantages such as those allegedly suffered by Mr NWQR in this case. While the Court’s duty in such cases does not extend to a duty to obtain legal representation for unrepresented litigants, duties are owed by the Court to all litigants to ensure the trial is fair through procedural means. As the New South Wales Court of Appeal explained in Hamod v New South Wales [2011] NSWCA 375 (Hamod) with respect to the Court’s duty specifically to an unrepresented party, “a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial” (at [311]). The articulation of the Court’s duties towards unrepresented litigants in Hamod has been approved by the Federal Court: see eg SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with whom Allsop CJ and Mortimer J agreed). There is no suggestion that the primary judge did not comply with these duties; nor is there any apparent basis upon which any such allegation could be made. This is a complete answer to Mr NWQR’s alternative contention that his application should have been stayed pending the appointment of legal representation. He has simply not identified any unfairness in the manner in which the proceedings were conducted before the primary judge save for his lack of legal representation and the fact that the Minister had legal representation. Furthermore, to the extent that the appellant relied upon Dietrich to suggest that a stay ought to be granted, the contention fails to appreciate that in contrast to the situation of an accused person in a criminal trial, the present proceedings were instituted and prosecuted by Mr NWQR.

28    It follows for these reasons that ground 1 must fail.

4.    REASONS FOR REFUSING LEAVE TO MR NWQR TO RELY UPON NEW PROPOSED GROUNDS

4.1    Principles governing the grant of leave to raise new grounds on appeal

29    The principles governing the grant of leave to raise new grounds on appeal are well established.

30    In declining leave to rely upon a ground of appeal sought to be raised for the first time on appeal, the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 (VUAX) held that:

46. … Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

47. In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

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. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court

(emphasis added).

31    Further, a determination of whether proposed grounds of appeal sought to be raised for the first time on appeal have any merit for this purpose should be approached at a reasonably impressionistic level, in common with the approach adopted with respect to other analogous threshold issues such as the determination of whether an extension of time within which to appeal should be granted. The Court should not descend into a fuller consideration of the arguments for and against each proposed new 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)).

4.2    Reasons for refusing the grant of leave to argue new grounds 4 to 7 inclusive and the application for joinder of the appeal proceedings and NSD 102

32    At the hearing of the appeal, the Court refused leave to permit Mr NWQR to raise proposed grounds 4 to 7 inclusive in the amended notice of appeal for reasons to be given when the decision in the appeal was delivered.

33    Grounds 4, 5 and 6 allege that the Tribunal erred by abrogating Mr NWQR’s “legal rights” for conditional release on parole and/or the sentencing and parole orders of the District Court of NSW. This abrogation of his rights is said to violate:

(1)    the principle of legality (ground 4);

(2)    the separation of powers doctrine enshrined in Ch III of the Commonwealth Constitution and the Constitution Act 1902 (NSW) (ground 5); and

(3)    the principle of state immunity pursuant to ss 106 and 107 of the Commonwealth Constitution (ground 6).

34    The Court’s reasons for refusing leave to raise grounds 4, 5 and 6 were as follows.

35    First, as Mr NWQR accepted, the issue sought to be raised by those new grounds would be addressed in any event in the new proceedings in NSD 102. As Mr NWQR also acknowledged, this would allow for the normal processes for the joinder of issues by way of pleadings to be observed and for the parties to lead such evidence as they wished at trial.

36    Secondly, no adequate reason was given for the failure to raise these grounds before the primary judge. While Mr NWQR was unrepresented at the hearing at first instance, he had legal representation when the application for judicial review was filed. The grounds for judicial review in the application were particularised and correctly described by the primary judge as “coherent”. No reason has been given as to why the legal representatives for Mr NWQR did not include the proposed new grounds in that application.

37    Thirdly, similar arguments to those contained in proposed grounds 4 to 6 in the amended notice of appeal were rejected by the Full Court in Raibevu v Minister for Home Affairs [2020] FCAFC 35 (Raibevu); see also the observations in BET20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1539 at [54] (Abraham J).

38    The Full Court described the constitutional argument in Raibevu at [110] of its reasons as follows:

(1)    The Minister’s decision under s 501CA(4) had the effect of undermining the institutional integrity of the District Court of New South Wales and so offended the principle stated by the High Court in Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51. This was because that Court had examined the prospects of Mr Raibevu’s rehabilitation and had concluded that he should be released upon the expiry of the non-parole period. The effect of the Minister’s decision to put Mr Raibevu in immigration detention was to frustrate the carefully considered conclusion of the District Court that the administration of justice required the appellant’s release into the community in the following month.

(2)    If the Minister’s decision under s 501CA(4) did not interfere with the institutional integrity of the District Court, then it instead had the effect of frustrating the exercise of the Parole Board’s power to order Mr Raibevu’s release. The Parole Board was to be seen as a key component in the administration of criminal justice in New South Wales. The administration of criminal justice was a core responsibility of the States. An intrusion into such a core area was invalid to the extent that it destroyed or curtailed the continued existence of the States or their capacity to function: Melbourne Corporation v Commonwealth (1947) 74 CLR 31.

39    In rejecting these arguments, the Full Court identified a significant initial difficulty with both arguments, namely: while it was the delegate’s decision to cancel the visa under s 501(3A) of the Act which required the appellant to be placed in immigration detention, the only challenge in Raibevu, as in the present case, was to the non-revocation decision made under s 501CA(4) (Raibevu at [112]–[113]). As their Honours then explained:

114    This has unavoidable consequences for the constitutional challenges. The only power exercised by the Minister was the power under s 501CA(4). Even if the constitutional challenge to those provisions were sound, it would only mean that s 501CA(4) was invalid to the extent that it authorised the Minister not to revoke the cancellation. A finding to that effect would leave the delegate’s cancellation decision in place because no challenge has been brought to it; i.e. the visa would remain cancelled even if this Court upheld the challenge to s 501CA(4).

115    Such an outcome would have no utility. To put it another way, Mr Raibevu’s constitutional challenge is incapable of yielding any relief.

40    Their Honours also held that even if the delegate’s cancellation decision had been challenged, no issue would arise under Ch III of the Constitution because the question of whether Mr Raibevu might be released on parole was a matter for the executive government of the State of New South Wales and did not involve any question arising before a court, let alone a court vested with federal jurisdiction: Raibevu at [120].

41    We are not persuaded that any of the matters raised by the appellant in his submissions in reply at [25]–[30] raise any serious doubt as to the correctness of the decision in Raibevu, let alone suggest that that decision was plainly wrong. To the contrary, the submissions of the appellant are based upon a number of misconceptions, including that a parole order is an order made in the exercise of State judicial power. Rather, in Mr NWQR’s case, he was taken to be subject to a statutory parole order by operation of s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) and not by force of a Court order. In other words, the Statutory Parole Order at SAB 73 merely records the parole period prescribed by that Act as a consequence of the sentence imposed by the District Court and the standard terms and conditions to which Mr NWQR’s parole was subject. Furthermore, the appellant’s submissions fail to appreciate that even if a person who is a non-citizen is granted parole under a State law, that does not grant the non-citizen permission to enter and remain in Australia. That question is governed by the legislative scheme contained in the Act which, in turn, provides as an aspect of that regulation for the detention and removal of unlawful non-citizens.

42    For these reasons, the proposed new grounds 4 to 6 had no reasonable prospects of success.

43    Turning then to ground 7, this ground alleges that, as a consequence of the earlier grounds on appeal, Mr NWQR is unlawfully detained in immigration detention. It also alleges that Mr NWQR is unlawfully detained because the nature and duration of his immigration detention has never been capable of objective determination by a court and his detention is not necessary for any legitimate non-punitive purpose for which the executive may be authorised to detain an alien or non-citizen. It would appear that, on the basis of ground 7, Mr NWQR seeks in effect a writ of habeas corpus and damages for unlawful detention (see the prayer for relief in the amended notice of appeal at [4], [5] and [6]).

44    Ground 7 is fatally flawed for the reasons set out in the Minister’s submissions at [4(e)], namely:

(i)    the appellant is being detained by the Commonwealth (not the Minister) and the Commonwealth is not a party to the appeal;

(ii)    the fact that the appellant’s Bridging Visa was mandatorily cancelled by the delegate (a decision which has not been challenged) means that, on any view, the appellant was an unlawful non-citizen from that date and was subject to the lawful operation of section 189 of the Act: see Fernando v Commonwealth of Australia (2014) 231 FCR 251; special leave to appeal revoked: Fernando by his Tutor Ley v Commonwealth of Australia & Anor [2015] HCATrans 286 (5 November 2015);

(iii)    in any event, the appellant is attempting to make a new case on appeal of unlawful imprisonment and a claim to damages which is an entirely different type of case which requires a pleading and evidence (see also Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438)…

45    It follows that as ground 7 had no reasonable prospects of success, leave to raise the new ground was also refused.

46    Finally, the application for joinder of this appeal and NSD 102 was refused given that:

(1)    leave to raise the common issues in the appeal was refused;

(2)    there were different parties to the two sets of proceedings;

(3)    different relief was sought in the two sets of proceedings, with the appeal challenging the non-revocation decision by the Tribunal and NSD 102 challenging the original cancellation decision; and

(4)    given the matters in (1) to (3) above, the decision on the appeal could not give rise to a res judicata or issue estoppel in NSD 102.

4.3    Should leave be granted to raise ground 2 of the amended notice of appeal?

47    Ground 2 of the amended notice of appeal alleged that the Tribunal failed to consider:

(i) The “Post-Release Plan” and the “Full Pre-Release Parole Report” by the Department of Corrections NSW.

(ii) The “RAS and Parole Order” adopted by the State Parole Authority NSW (SPA NSW), together with the “parole reports” as per the District Court of NSW.

48    The notice of appeal alleged that this constituted a jurisdictional error on the basis that “[a] decision-maker has an obligation to consider matters that carry significant weight or significance to satisfy the decision-maker to revoke a mandatory cancellation decision” (Ground 2, amended notice of appeal at paragraph (nn)). In his written submissions, Mr NWQR further alleged that the Tribunal’s decision was affected by jurisdictional error of the kind identified in Coker v Minister for Immigration and Border Protection [2017] FCA 929; (2017) 160 ALD 588 “in that the respondent failed to consider that the State Parole Authority had granted the appellant to be released on parole on 18 May 2019” (AS at [6]).

49    Ground 2, however, has no reasonable prospects of success for the simple reason that counsel for Mr NWQR conceded that the appellant had not put the reports in question before the Tribunal and they were not part of his case before the Tribunal for revocation of the cancellation decision: T19/02/21 at p. 15.26–37 (Mr Williams). As such, the decision in Coker, where submissions and evidence pertaining to the applicant’s release on parole had been placed before the Assistant Minister but not referred to at all by him, is plainly distinguishable.

50    Counsel for the appellant sought to overcome this difficulty by contending that the Tribunal put Mr NWQR on notice that “it will seek all information including the parole reports”: eg T19/02/21 at p. 18.8–9 (Mr Williams). However, none of the documents to which Mr Williams took the Court contained any such assurance or representation by the Tribunal.

51    First, the so-called terms and conditions set out at the commencement of the Tribunal’s form for an Application for Review of Decision stated that “[w]e collect information from you to process your application and to carry out the review under the Administrative Appeals Tribunal Act 1975” (SAB 1) (emphasis added).

52    Secondly, Mr Williams took the Court to the standard form Request of Revocation of a Mandatory Visa Cancellation under s 501(3A) issued by the Department of Home Affairs (and not the Tribunal) which his client had completed on 27 May 2019. However, the statement on which the appellant relied in the standard form went no higher than to state that “[i]t may be necessary for the department to seek further information about you, or disclose information about you to a third party, to assist the Minister or his/her delegate in assessing your request for revocation and verifying any information you provide to the department” (SAB 91) (emphasis added).

53    Thirdly, Mr Williams took the Court to the standard form Personal Circumstances Form issued also by the Department of Home Affairs as opposed to the Tribunal. He relied upon the fact that the appellant had ticked “yes” in answer to the question of whether he was currently on parole or subject to reporting requirements (SAB 105) and upon the reference to the “Parole report and reporting conditions” in the checklists attached to the form under the heading “Suggested Documents to Support Your Claims” (SAB 108). However, despite the checklist suggesting that the appellant might provide his parole report(s) and reporting conditions in support of his request for revocation of the cancellation decision, he did not tick that box and supply the documents referred to.

54    It follows that leave to raise ground 2 should be refused because, quite apart from the fact that no adequate reason has been given as to why this issue was not raised below, the ground lacks any merit.

4.4    Should leave be granted to raise ground 3 of the amended notice of appeal?

55    Finally, by ground 3 of the amended notice of appeal, Mr NWQR alleges that the Tribunal “failed to consider entirely at [77], the real risk of harm the appellant may face as a convicted sex offender within the concept of “Australia’s international non-refoulement obligations” and at [82], the appellant’s claims with regard to “the extent of impediments if returned”” and thereby failed to carry out the statutory task required by s 501CA(4)(b) of the Act (amended notice of appeal at [3(c)]). The appellant’s written submissions largely reassert the error pleaded in the amended notice of appeal (see AS at [9]).

56    Leave should also be refused to raise this ground. Again, no adequate reason has been given as to why the ground was not raised before the primary judge for the reasons already given. Furthermore, the ground lacks any merit.

57    As to the latter, first, it is apparent that the Tribunal did not defer its consideration of the question of whether Australia might owe Mr NWQR non-refoulement obligations. Rather, the Tribunal found that it did not accept that the level of harm identified in the post-hearing submissions filed on behalf of Mr NWQR would give rise to non-refoulement obligations (TR at [76]).

58    Secondly, the Tribunal accepted in the context of considering the impediments that Mr NWQR might face if returned to Tonga, that it was likely that he would be subject to harassment, ridicule and bullying and, despite finding that he was not likely to be physically intimidated, nonetheless found that this consideration weighed in favour of his request for revocation of the cancellation decision (TR at [82]).

59    Thirdly, in oral submissions Mr Williams for the appellant submitted that the Tribunal failed to consider how any sex offender scheme in Tonga, and in particular a scheme for registration of sex offenders, might impact on Mr NWQR despite this being “clearly raised as a central foundation of his claims for protection or impediment” (T12/02/21 at p. 23.10–15). As a consequence, he submitted that the Tribunal had failed to give a real and genuine consideration to the appellant’s claims. However, Mr Williams also conceded that “[t]here was no evidence before the AAT of a sex offender scheme in Tonga, let alone how much a sex scheme would impact on the appellant” (ibid). That being so, no error has been identified in the Tribunal’s failure to address the issue. The responsibility lay upon the appellant to place before the Tribunal the evidence which he wished the Tribunal to take into account in support of his request for revocation of the cancellation decision. In those circumstances, ground 3 has no reasonable prospects of success.

5.    CONCLUSION

60    For the reasons set out above, ground 1 has not been made out, leave to raise grounds 2 and 3 of the amended notice of appeal must be refused, leave to raise new grounds 4 to 7 was refused, and the appeal must be dismissed with costs.

Associate:

Dated:    10 March 2021