Federal Court of Australia

Franklin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 18

ORDERS

THE COURT ORDERS THAT:

1.    The applicant is granted an extension of time to appeal in relation to the issue of whether the delegate of the first respondent erred when deciding that the applicant had a substantial criminal record within the meaning of s 501(7)(c) of the Migration Act 1958 (Cth) by reference to an aggregate sentence.

2.    The application for an extension of time to appeal is otherwise dismissed.

3.    The appeal is dismissed.

4.    The applicant pay the first respondent’s costs of the application and the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

Synopsis

1    This is an application for an extension of time and leave to appeal a decision of a judge of this Court in Franklin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 643. In that case, the primary judge dismissed an application by the applicant for judicial review of a decision of the second respondent (Tribunal), which affirmed a decision of a delegate of the first respondent (Minister) not to revoke the cancellation of the applicant’s visa.

2    The applicant’s visa had been cancelled by an earlier decision of a delegate of the Minister dated 18 May 2021 which was premised, amongst other things, on the delegate being satisfied that the applicant had a substantial criminal record within the meaning of s 501(7)(c) of the Migration Act 1958 (Cth) by reason of the fact that he had been sentenced to an aggregate term of 14 months’ imprisonment pursuant to s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

3    Following the decision of the primary judge and after the application was filed, the Full Court delivered the decision of Pearson v Minister for Home Affairs [2022] FCAFC 203 (Allsop CJ, Rangiah and Sarah C Derrington JJ). That decision raised a further potential ground of appeal for the applicant because the Court in that case decided that an aggregate sentence, even for a period of 12 months or more, did not satisfy s 501(7)(c) of the Migration Act.

4    The Minister opposed the application for an extension of time to appeal in relation to the proposed grounds of appeal listed in the application, but accepted that, as a consequence of Pearson, the application had sufficient merit to warrant the grant of an extension of time in relation to the issue of whether the original decision to cancel the applicant’s visa was valid. That extension will be granted.

5    The Minister also accepted that leave to appeal was not required. We agree.

6    Following the hearing, the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) commenced on 17 February 2023. This legislation negated any impact of Pearson on the validity of the original cancellation decision. For that reason, the appeal will be dismissed.

Background facts

7    The applicant is a citizen of New Zealand who was born on 19 February 1963. He arrived in Australia prior to April 1984, and travelled to and from Australia on numerous occasions since then. He last entered Australia in October 2014 and has not since departed.

8    Between 1986 and 2021, the applicant was convicted in Australia of approximately 38 offences.

9    On 22 March 2016, the applicant was sentenced to a term of imprisonment of 12 months.

10    On 1 July 2020, the applicant was sentenced to an aggregate sentence of imprisonment of 14 months, being a sentence imposed pursuant to s 53A(1) of the Crimes (Sentencing Procedure) Act. That section relevantly provides:

A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.

11    On 18 May 2021, a delegate of the Minister cancelled the applicant’s visa pursuant to s 501(3A) of the Migration Act. The letter communicating the delegate’s decision included the following statement:

Based on the information before the Department, the decision maker (who is a delegate of the Minister) was satisfied that you do not pass the character test on the following ground:

You have a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(a), (b) or (c) of the Act.

Under s 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 01 July 2020 in the Local Court of New South Wales in Wyong you were convicted of Drive motor vehicle during disqualification period - 2nd+off (three counts) and sentenced to an aggregate term of 14 months’ imprisonment, to be served by way of an Intensive Correction Order in the community.

12    On 21 September 2021, the applicant made a request pursuant to s 501CA(4) of the Migration Act that the Minister revoke the cancellation of his visa.

13    On 29 October 2021, a delegate of the Minister decided, pursuant to s 501CA(4) of the Migration Act, not to revoke the cancellation decision.

14    On 4 November 2021, the applicant sought review by the Tribunal of the delegate’s decision.

15    On 21 January 2022, the Tribunal affirmed the delegate’s decision.

16    The Tribunal observed that the applicant failed the “character test” under s 501CA(4)(b)(i) of the Migration Act (and noted that, in any event, this was not in dispute). The Tribunal then considered whether there was another reason to revoke the cancellation decision, pursuant to s 501CA(4)(b)(ii).

17    The Tribunal summarised relevant aspects of Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, and then turned to the various relevant considerations.

18    The Tribunal observed that the applicant had a “very comprehensive offending history” in Australia, and noted its “repeated regularity, petulance and duration”. That history demonstrated the applicant’s repeated failure to come to grips with and adequately address his substance abuse issues. The applicant’s offending had been maintained at an “unacceptable consistent level” over 35 years, and the cumulative effects of his repeated offending was serious. The Tribunal was satisfied that, if the applicant re-offended, the potential harm could be of a physical, psychological or material nature and would be of a “serious”, and “quite conceivably…catastrophic” level (given his multiple serious drink driving offences). The Tribunal considered that the applicant’s long history of alcohol misuse was the root cause of his offending and that the applicant had insight into this. It acknowledged that the applicant had completed some rehabilitation courses in prison. However, the Tribunal observed that there had been “sustained efforts by the courts and corrective services authorities to assist him with addressing those substance abuse issues”, yet he had continued to offend. The Tribunal had little confidence that “things will be any different” upon a return to the Australian community. The Tribunal considered that the applicant had a medium to medium-high likelihood of re-offending. The Tribunal concluded that the protection of the Australian community primary consideration carried a “heavy weight” against revoking the cancellation decision.

19    The Tribunal noted two children under the age of 18 who might be affected by non-revocation, being the grandchildren of the applicant’s brother. The applicant’s relationship with them was not parental, he had had only a very limited presence in their lives, and had not seen them for at least two years. The Tribunal gave this primary consideration only “slight” weight in the applicant’s favour.

20    The Tribunal considered that the Australian community would have a “higher than usual tolerance” for the applicant’s criminal conduct, given the length of time he has spent in Australia. However, given his breaches of the community’s expectations and his offences and conduct against government representatives in the performance of their duties, the Tribunal considered that the community would expect the government to cancel the visa. The Tribunal found this to weigh heavily against revocation of the cancellation decision.

21    The Tribunal did not consider that the applicant’s age and state of health represented a significant or insurmountable impediment to his return and re-settlement in New Zealand, or that he would face significant or substantial language or cultural barriers. The Tribunal also considered that knee surgery would be available to the applicant in New Zealand, if needed, and that he would be entitled to equivalent levels of subsidised social welfare and economic support as available to other New Zealand citizens. The Tribunal found that the extent of impediments if removed consideration weighed slightly in favour of revocation of the cancellation decision.

22    The Tribunal considered that the applicant’s family ties to his son and brother in Australia carried a moderate, but not determinative, level of weight in favour of revocation. The Tribunal observed that the applicant began offending soon after arriving in Australia. However, he had made a positive contribution to the Australian community through his business, employment of Australian workers and involvement in the local community. The Tribunal also accepted that the applicant had ties to non-immediate family members in Australia, as well as other social and business links. The Tribunal concluded that the applicant’s links to the Australian community carried a moderate, but not determinative, weight in favour of revocation of the cancellation decision.

23    The Tribunal considered that, while the best interests of minor children in Australia primary consideration and the other considerations in Direction No. 90 weighed in favour of revocation, they were outweighed by the two primary considerations that each weighed heavily in favour of non-revocation of the cancellation decision. The Tribunal concluded that the cancellation decision should not be revoked.

24    On 24 February 2022, the applicant applied to this Court for judicial review of the Tribunal’s decision, which application was dismissed by the primary judge.

Application for extension of time

25    The principles which govern an application for extension of time to appeal were identified in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 (Yates, Wheelahan and O’Bryan JJ) at [33]:

Under rule 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]:

(a)    Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored.

(b)    There must be some acceptable explanation for the delay.

(c)    Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension.

(d)    The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.

(e)    The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. 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]. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to “assess the merits in a fairly rough and ready way”: Jackamarra v Krakouer (1998) 195 CLR 516 at [7] – [9].

(f)    The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties. 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]. This will be so particularly if the applicant is in immigration detention, requires the assistance of an interpreter and has limited knowledge of law and practice including the time for any appeal: Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 at [14]; N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 at [12] (N1202/01A). Further, where an applicant is an asylum seeker, the gravity of the circumstances that may confront him or her may be a reason for not applying the time rule too strictly: Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 FCR 441 at [5]. Nevertheless, the merits of the appeal will remain a relevant factor: N1202/01A at [13].

(emphasis original)

26    The following considerations are pertinent to this case.

Explanation for delay

27    The orders of the primary judge were made on 3 June 2022. The period for commencing an appeal expired 28 days later: r 36.03(a) of the Federal Court Rules 2011 (Cth). These proceedings were commenced on 3 October 2022, more than three months late.

28    Notwithstanding the lengthy period of delay, the applicant’s affidavit material offered the following explanations for that delay, which tend to support the grant of an extension of time to appeal:

(1)    the applicant’s detainment at the Christmas Island Detention Centre, which affected his access to specialist medical professionals, legal resources and advice; and

(2)    the applicant’s deteriorating mental and physical health, which he attests “destroyed” his ability to think about anything else.

Prejudice to Minister

29    The Minister will not suffer any specific prejudice in this case by the grant of an extension, although the absence of prejudice is not, in itself, a reason to grant the extension sought: BQQ15 at [33].

Merits of proposed grounds of appeal identified in application

30    Ground 1 alleges that the primary judge erred “in not considering the applicant’s medical condition”. The applicant refers, in particular, to [27] and [29] of the primary judgment. Ground 2 appears to advance the same proposition. However, these grounds have no real prospects of success for the following reasons.

31    The primary judge did consider the applicant’s health, or “medical”, conditions.

32    Further, as his Honour observed, the Tribunal expressly referred to and took into account the medical conditions identified by the applicant (both physical and mental), including depression, anxiety, deep vein thrombosis, and back and knee injuries. The primary judge was therefore correct to reject the applicant’s contention that the Tribunal had failed to take into account the applicant’s mental and physical health at the time of the hearing.

33    The primary judge was also correct to reject the contention that the applicant was deprived of a meaningful opportunity to present his case, on account of his medical conditions.

34    That is because there is no evidence before this Court (and there was none before the primary judge) establishing that the applicant’s conditions adversely affected, in any significant way, his ability to meaningfully participate in the hearing before the Tribunal.

35    As the primary judge stated at [29]–[30] of the primary judgment:

The Tribunal was aware that the applicant had experienced side-effects caused by his medication. It referred to the applicant’s written statement which stated that, “The medications I am administered on Christmas Island makes me feel nauseous and affects my motivation and I have decreased energy levels”. The Tribunal was also aware that the applicant was emotionally disturbed at one point during his evidence. The Tribunal set out a passage of evidence during which the applicant was evidently disturbed when talking about a friend who had committed suicide. The Minister’s representative asked the applicant whether he was all right to continue. The applicant replied, “I—give us a minute.” He then said, “Yes, right”, and the applicant’s evidence continued.

The applicant accepted that he had not made any complaint to the Tribunal prior to the decision being made that he was unable to adequately represent himself because of any medical or psychological condition. Nor is there anything in the material to suggest that the Tribunal ought to have been aware of any realistic possibility that he was unable to represent himself. The medical records before the Tribunal, including those prepared on 27 September 2021 and in November 2021, did not suggest that there was any significant mental or physical impairment caused by the applicant’s medication.

36    The primary judge was therefore correct to conclude that the applicant had failed to demonstrate that he was deprived by the effects of any psychological or physical condition of the ability to adequately or meaningfully represent himself before the Tribunal.

37    Grounds 3 and 4 allege that the primary judge applied “irrelevant laws and regulations” and failed to apply “relevant law and regulation”. The “irrelevant” and “relevant” laws are not identified. As the applicant did not appear at the hearing, further detail was not obtained. Nothing on the face of the primary judge’s reasons suggests any misapplication of the relevant law. These grounds are without merit.

38    Ground 5 alleges that the primary judge failed to consider the length of time that the applicant had spent in Australia. We have proceeded on the basis that this should be a reference to the Tribunal failing to consider this matter. It is further alleged that this amounted to a denial of the applicant’s human rights as well as that of his family.

39    However, as the primary judge found, the Tribunal was aware of, and expressly adverted to, the length of time that the applicant had resided in Australia. As to there being a denial of human rights, the applicant did not identify which of the various existing human rights conventions he was relying upon. In any event, the applicant acknowledged in the proposed ground that the relevant convention (whichever it is) is not part of Australian domestic law. This has the consequence that the convention does not operate as a source of rights and obligations under Australia domestic law: see Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17 at [20].

40    For these reasons, ground 5 is also without merit.

41    As the grounds identified in the application have no real prospects of success, the application for an extension will be refused in relation to those grounds.

Merits of proposed appeal arising from decision in Pearson

42    The Minister accepted, and we agree, that an extension of time should be granted as a consequence of the decision in Pearson. That recent decision presented issues relevant to the merits of this appeal in relation to which it could not be said there were no reasonable prospects of success, noting that the discretion to extend time to appeal is given for the purpose of enabling the Court to do justice between the parties: BQQ15 at [33].

43    However, for the following reasons, the appeal will be dismissed.

The decision of Pearson

44    In Pearson, the applicant sought judicial review of a decision by a delegate of the Minister not to revoke the mandatory cancellation of her visa. In that case, the applicant had been sentenced pursuant to s 53A of the Crimes (Sentencing Procedure) Act to an “aggregate maximum term of imprisonment” of four years and three months in respect of 10 offences. The indicative sentence for one of the offences was 18 months. As in the case before this Court, a delegate of the Minister subsequently purported to cancel the applicant’s visa on the basis that this sentence meant that she did not pass the character test by virtue of s 501(7)(c) of the Migration Act.

45    Section 501(7)(c) of the Migration Act provided (and continues to provide) that a person has a “substantial criminal record” if “the person has been sentenced to a term of imprisonment of 12 months or more”.

46    The Court in Pearson stated at [45] and [47]:

…The aggregate sentence of itself will say little to nothing about the seriousness of the individual offences for which indicative sentences have been given. Further, in the case where a sentencing judge fails to provide indicative sentences for individual offences, an aggregate sentence of imprisonment is not invalidated (s 53A(5)). In such circumstances, there could be no objective means by which the Minister could reach any reasonable suspicion, on the basis of s 501(7)(c), as to whether a person’s visa ought to be mandatorily cancelled.

… Had Parliament intended that an aggregate sentence of 12 months or more should be subject to mandatory cancellation of a person’s visa, it would have been a straightforward matter to say so. That it did not do so is consistent with the apparent purpose of s 501(3A), namely that only the most serious offending subjects a person to mandatory cancellation of a visa. Self-evidently, an aggregate sentence may be arrived at after conviction of a series of lesser offences, none of which on their own could render a person liable to have his or her visa mandatorily cancelled.

47    The Court concluded at [48] that the applicant in that case was not sentenced (for an offence) to a term of imprisonment of 12 months or more and that, consequently, her visa was not amenable to mandatory cancellation under s 501(3A) of the Migration Act.

Application of Pearson to this case

48    Applying Pearson, the aggregate sentence imposed on the applicant did not fall within s 501(7)(c) of the Migration Act, and could not be relied upon by the delegate of the Minister to reach a state of satisfaction that the applicant had a substantial criminal record within the meaning of s 501(7). This has the consequence that the applicant’s visa was not amenable to mandatory cancellation under s 501(3A) of the Migration Act.

49    The Minister submitted that Pearson could be distinguished because the applicant had previously been sentenced to a term of imprisonment of 12 months, being the sentence which was imposed on 22 March 2016. However, as a consequence of the commencement of the Migration Amendment (Aggregate Sentences) Act, it is unnecessary to decide this issue.

The Migration Amendment (Aggregate Sentences) Act 2023 (Cth)

50    On 17 February 2023, the Migration Amendment (Aggregate Sentences) Act commenced, which legislation amended the Migration Act.

51    The newly inserted s 5AB of the Migration Act provides:

5AB    Sentencing for offences

The provisions of this Act and the regulations apply no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in relation to a sentence imposed by a court in respect of a single offence.

Example:    Paragraph 501(7)(c) applies in relation to a person sentenced to a term of imprisonment of 12 months or more. Because of this section, that paragraph applies in relation to a person sentenced to such a term, whether the sentence is imposed for a single offence or for 2 or more offences.

52    The reference in s 5AB of the Migration Act to a “single sentence imposed by a court in respect of 2 or more offences” captures aggregate sentences within the meaning of s 53A(1) of the Crimes (Sentencing Procedure) Act. It has the consequence that an aggregate sentence of 12 months or more is a “term of imprisonment for 12 months or more” within the meaning of s 501(7)(c) of the Migration Act and overcomes the consequences of Pearson for decisions made on or after commencement: see s 3 of the Migration Amendment (Aggregate Sentences) Act.

53    Further, of importance to this case, s 4 of the Migration Amendment (Aggregate Sentences) Act provides:

4     Validation of things done before commencement

(1)    This item applies if a thing done, or purportedly done, before commencement under a law, or provision of a law, covered by subitem (2) would, apart from this item, be wholly or partly invalid only because a sentence, taken into account in doing, or purporting to do, the thing, was imposed in respect of 2 or more offences.

(2)    The laws and provisions are as follows:

(a)    the Migration Act 1958;

…

Note:    The things referred to in subitem (1) include (for example) the following:

(a)    deciding under section 501, 501A, 501B or 501BA of the Migration Act 1958 to refuse to grant a visa to a person, or to cancel a visa granted to a person;

…

(3)    The thing done, or purportedly done, is taken for all purposes to be valid and to have always been valid.

(4)    To avoid doubt, anything done or purported to have been done by a person that would have been invalid except for subitem (3) is taken for all purposes to be valid and to have always been valid, despite any effect that may have on the accrued rights of any person.

54    Section 4 has the consequence that, notwithstanding that the delegate made the decision to cancel the applicant’s visa by reference to the aggregate sentence, the delegate’s decision is taken for all purposes to be valid and to have always been valid.

Conclusion

55    The application for an extension of time to appeal will be dismissed in relation to the five proposed grounds articulated in the application for extension of time to appeal. The reason for refusing the application is that the five proposed grounds of appeal have no reasonable prospects of success.

56    As to the issue concerning the validity of the original visa cancellation decision, an extension of time to appeal will be granted, but the appeal will be dismissed.

57    Costs will follow the event, and will be ordered to be paid by the applicant to the first respondent.

Associate:

Dated:    23 February 2023