FEDERAL COURT OF AUSTRALIA

Pannasara v Minister for Immigration &Multicultural Affairs [2000] FCA 213

ADMINISTRATIVE LAW – Migration –Refusal of visa – Decision of delegate unsuccessfully appealed to Administrative Appeals Tribunal – Jurisdiction of Court to entertain challenge to delegate’s decision – Effect of applicant’s failure to institute a proceeding within 28 days of delegate’s decision – Whether proceeding ought to be entertained as a matter of discretion – Application for extension of time to appeal against Tribunal’s decision –Whether there was arguable legal error by Tribunal – Whether Tribunal erred in having regard to criminal convictions that were subject to an application for special leave to appeal to High Court – Other grounds considered – Application for extension refused.

Migration Act 1958, ss 475, 478, 485 and 501

Administrative Appeals Tribunal Act 1975, s 44

KAHATAPITIYE PANNASARA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, STATE DIRECTOR (WA) DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS, ADMINISTRATIVE APPEALS TRIBUNAL (GENERAL DIVISION, PERTH REGISTRY) and JUSTICE D F O’CONNOR, PRESIDENT, ADMINISTRATIVE APPEALS TRIBUNAL

W116 of 1999

WILCOX, FRENCH and CARR JJ

PERTH

1 MARCH 2000

THE COURT ORDERS THAT:

1.                  The application for extension of time to appeal against the decision of the Administrative Appeals Tribunal be dismissed.

2.                  The proceeding be dismissed.

3.                  The applicant pay the costs of the respondents.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EXTEMPORE REASONS FOR JUDGMENT

1                     THE COURT:  On 21 October 1999, the applicant, Kahatapitiye Pannasara, filed in this Court a document styled, "Application for an order of review - writ of certiorari."  The applicant named as respondents the Minister of Immigration and Multilateral Affairs (sic, obviously the Minister for Immigration and Multicultural Affairs), the State Director (WA) Department of Immigration and Multicultural Affairs, the Administrative Appeals Tribunal and Justice D F O'Connor, President of the Tribunal.

2                     Having regard to the status of the last-mentioned respondent, the matter was listed before a Full Court.  At the hearing today, Mr Viji De Alwis sought leave to appear as amicus curiae to represent the applicant.  We granted leave.  Mr P R Macliver, of counsel, appeared for the Minister for Immigration and Multicultural Affairs and the State Director (WA) of that Department.  In accordance with the usual practice, neither the Tribunal nor Justice O'Connor  participated in the hearing.

Factual background

3                     The application filed on 21 October 1999 appears to have been prepared without the benefit of competent legal advice.  As was pointed out in the outline of submissions furnished to us by Mr Macliver, it runs into numerous jurisdictional difficulties.  We will turn to them in a moment.  First we should outline the history of the matter. 

4                     Mr Pannasara is apparently a Buddhist monk.  He entered Australia on 23 February 1993 pursuant to a class 670 visa.  He was subsequently granted a subclause 828 visa and then a subclass 428 visa as a religious worker.  This visa was valid until 8 July 1995.

5                     Shortly before the expiry of that visa, on 29 June 1995, Mr Pannasara applied for an extension of his subclass 428 visa.  However, before that application was determined, on 26 February 1997 Mr Pannasara was convicted in the District Court of Western Australia on several criminal charges.  An appeal against his conviction on those charges was dismissed by the Western Australia Court of Criminal Appeal, but an application for special leave to appeal to the High Court of Australia is outstanding.

6                     On 15 May 1997, a delegate of the Minister refused Mr Pannasara's application for extension of his visa.  Mr Pannasara applied for a review of this decision.  By consent, the Administrative Appeals Tribunal set aside the delegate's decision and directed it be remade.  The decision was remade on 31 March 1999, when a delegate of the Minister determined that Mr Pannasara was not of good character and refused the visa application under s501 of the Migration Act 1958.  Mr Pannasara seeks to challenge this decision on numerous grounds, but he did not file any document attacking the decision until he instituted the present proceeding in October 1999.

7                     In the meantime, Mr Pannasara appealed against the delegate’s decision of 31 March 1999 to the Administrative Appeals Tribunal pursuant to s44 of the Administrative Appeals Tribunal Act 1975.  The appeal came before the President, Justice O'Connor, who decided on 8 June 1999 to affirm the decision under review.  In this proceeding, Mr Pannasara seeks also to challenge that decision.

Challenge to the delegate’s decision

8                     It seems to be clear that this Court has no jurisdiction to entertain Mr Pannasara's challenge to the decision of the delegate.  Section 485 of the Migration Act deprives this Court of jurisdiction (whether under the Administrative Decisions (Judicial Review) Act 1977, the Judiciary Act 1903, or otherwise) in respect of judicially-reviewable decisions, except for the jurisdiction conferred on the Court by Part 8 of the Migration Act or under s44 of the Judiciary Act, on remittal from the High Court of Australia.

9                     The decision of a delegate is a “judicially-reviewable” decision, within the meaning of Part 8 of the Migration Act.  It is a decision made under the Act relating to a visa; see s475(1)(c) of the Act.  Therefore, Part 8 conferred on the Court jurisdiction to entertain a challenge to the delegate's decision, when it was made.  However, s478(1) requires that any application for review be lodged within 28 days.  Section 478(2) forbids the Court to grant any extension of time.

10                  In the present case, a period of over six months elapsed between the date of the delegate's decision and the filing of a proceeding seeking review.  The proceeding was, therefore, out of time.  The Court has no power to extend time or to entertain the application insofar as it seeks to challenge the delegate's decision. 

11                  To the extent that the applicant seeks relief by way of certiorari, what we have said equally applies. 

12                  Even if the Court had jurisdiction, it seems to us it would be an inappropriate exercise of the Court's discretion to consider the legal merits of a decision that has been subjected to full merits review by the Administrative Appeals Tribunal.

Challenge to the AAT decision:  jurisdiction

13                  There is also a time problem in respect of Mr Pannasara's challenge to the Tribunal's decision.  Section 44(2A) of the Administrative Appeals Tribunal Act requires any appeal to be instituted within 28 days after the date on which the Tribunal's decision was notified to the affected person.  That time expired on 23 July 1999, the Tribunal's decision having been provided to Mr Pannasara on 25 June.  As mentioned, the proceeding was not instituted until 21 October 1999.  However, in the case of a challenge to a decision of the Administrative Appeals Tribunal, the Court has power to extend time pursuant to the Administrative Appeals Tribunal Act.  It may also be open to the Court to extend time for a challenge to a Tribunal decision under s11 of the Administrative Decisions (Judicial Review) Act.

14                  In considering whether or not the Court should extend time, it is appropriate to consider whether the challenge appears to have merit.  It would plainly be an erroneous exercise of discretion for the Court to allow time to be taken, and resources expended, on a hopeless application.  With this in mind, we have heard submissions as to whether the Tribunal fell into any error of law in dealing with Mr Pannasara's case.  It must be remembered that the appeal to this Court from a Tribunal decision is confined to an error of law.  The Court is not empowered to review the facts found by the Tribunal.

Grounds of challenge to AAT decision

15                  Mr De Alwis advanced nine matters, on behalf of Mr Pannasara, that he described as points of law concerning the Tribunal's decision. 

16                  The first point is a contention that the Tribunal erred in having regard to Mr Pannasara's convictions in determining whether he is not of good character, the reason being that there was, at that time, an outstanding application for special leave to appeal to the High Court against those convictions.  Put another way, the contention is that the phrase "past criminal conduct" refers only to conduct established by convictions that are not under an outstanding challenge.  For the same reason, Mr De Alwis complains about the Tribunal's reliance upon material put to the District Court in connection with sentencing.

17                  We do not think that this argument is valid.  Convictions provide evidence of criminal conduct.  They have effect while they stand.  If it should happen that Mr Pannasara is ultimately successful in the High Court, and his convictions are set aside, he may have a reasonable prospect of success in relation to any fresh visa application; but the Minister, or his delegate, or the Administrative Appeals Tribunal on review, must deal with the facts as they appear at the time of making a decision.  There is no basis for attributing legal error to the Tribunal in respect of this ground.

18                  The second point raised by Mr De Alwis is that the Tribunal concentrated entirely on Mr Pannasara's criminal convictions, ignoring the issue of general conduct.  At the material time, s501 of the Migration Act relevantly read:

“501(1)           The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:

(a)                subsection (2) applies to the person;

…

(2)                     This subsection applies to a person if the Minister:

(a)                having regard to:

(i)                   the person’s past criminal conduct; or

(ii)                 the person’s general conduct;

is satisfied that the person is not of good character.”

19                  In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194, a Full Court of this Court (Burchett, Branson and Tamberlin JJ) said:

“We think the key to the understanding of subsection (2)(a) is to be found in its object, satisfaction on the issue whether a person is not of good character.   In deciding whether he is so satisfied, the Minister is required by the phrase "having regard to", to look at the conduct of the person the subject of the enquiry.  Of course, an obligation to have regard to certain matters is not the same thing as an obligation to confine consideration to those matters.  It is not conceivable that Parliament intended anything so unreasonable as a conclusion whether a person is now not of good character, based exclusively on his past criminal conduct, without regard to any recent good conduct, whether or not falling within the description of ‘general conduct’.  So the words "having regard to" and the disjunctive "or" must not be given the effect of requiring a blinkered decision to be made on the basis of criminal conduct considered in isolation.”

The effect of this approach is that it is necessary for a person making a judgment under s501 to consider character generally; see Powell v Administrative Appeals Tribunal (1998) 89 FCR 1 at 14. 

20                  However, it seems to us apparent that, in the present case, the Tribunal did this:  see paras 16, 19, 20 and 28 of its decision.  The Tribunal also noted Mr Pannasara's claimed innocence in respect of the charges and his explanation for them being brought.  But, in the end, the Tribunal was satisfied Mr Pannasara was not a person of good character.  That conclusion was substantially based on the convictions, but the President also took into account aspects of Mr Pannasara's general conduct that she thought reflected adversely upon him.  Those were conclusions of fact that are not reviewable in this Court.  We are not persuaded there is any substance in this second point.

21                  Third, Mr De Alwis says the Tribunal was incorrect in saying, as it did in para 20 of its reasons, “The (Buddhist) Organisation has been closed and those leading it have withdrawn their support”.  Mr De Alwis acknowledges this is a statement of fact, but he says it affected the Tribunal's determination of the issue of character.  We do not agree.  Whether or not the statement was factually correct, it did not affect the Tribunal's ultimate decision.  Nor do we think, as was suggested, that it was irrelevant for the Tribunal to consider the position of Mr Pannasara in the Buddhist community.

22                  Fourth, Mr De Alwis asserts that the Tribunal did not consider the case for itself but simply rubber-stamped the departmental view, as reflected in the delegate's decision.  Of course, it would be a serious error of law, in any case, for the Tribunal to take that course.  However, it is clear the President did not do so.  As she noted in her reasons for decision, the President heard and considered extensive evidence, oral and documentary, tendered to her by Mr Pannasara.  The fact that she found much of this material unconvincing does not mean she failed to take it into account.

23                  Fifth, there is an assertion that Mr Pannasara's knowledge of English is so limited that he was unable to understand the proceedings in the Tribunal or to do justice to himself in giving evidence.  It is said the person provided as an interpreter was unable to interpret English into Singhalese and vice versa.  This assertion has to be evaluated against the fact that Mr Pannasara made no complaint about the matter at the time of the hearing.  The President, who is an experienced judge and tribunal member, obviously thought Mr Pannasara was able to participate effectively in the proceeding.

24                  We note also that no point was taken about this matter in the document initiating the proceeding and that no steps were taken to have the Tribunal transcript, or the tapes of the hearing, made available to the Court; so as to enable it to evaluate the alleged problem.  We note, also, what the President said, in para 24 of her reasons, in respect of the presentation by the applicant of his case.

25                  Sixth, Mr De Alwis says the Tribunal erred in having regard to guidelines issued on 22 April 1997, after the date of Mr Pannasara's visa application for a visa.  The guidelines are intended to guide decisions under s501.  On their proper construction, they are to be applied by decision-makers as at the time of making decisions.  As the Tribunal was making a decision after 22 April 1997, it was appropriate for it to have regard to these guidelines.

26                  Seventh, it is said the Tribunal erred in relying on the transcript of the sentencing of Mr Pannasara in the District Court because he did not understand what was going on at that time.  We note that an interpreter was used on that occasion and Mr Pannasara was represented by a counsel experienced in criminal cases.

27                  Eighth, Mr De Alwis asserts the Tribunal erred in law in admitting hearsay evidence in respect of the matters referred to in para 19 of the decision.  It is not clear that the statements there made were based on hearsay material.  In any event, the Tribunal is not bound by the rules of evidence.

28                  Finally, it is said that the Tribunal failed to give a sufficient statement of reasons for the conclusion expressed in para 28 of its decision.  We think it is abundantly obvious that this conclusion was based on the lengthy reasons set out earlier in the decision.

Disposition

29                  In our view, the applicant has failed to demonstrate even an arguable case of legal error by the Tribunal.  That being so, we refuse the application for extension of time to appeal against the Tribunal's decision, with the result that the proceeding as a whole must be dismissed.  We order that the applicant pay the costs of the respondents.

Associate:

Dated:              1 March 2000