FEDERAL COURT OF AUSTRALIA

Milne v Minister for Immigration and Citizenship [2010] FCA 987

THE COURT ORDERS THAT:

1.                  The applicant have leave to file and serve a Notice of Appeal in the form of the draft Notice of Appeal filed on 29 July 2010, within 7 days of the making of this order.

2.                  Costs of the application are costs in the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. 
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     The applicant, Mr Milne applies for an extension of time within which to file and serve a notice of appeal from a judgment of a single judge of the Court.  Under O 52 r 15 of the rules of Court, a notice of appeal is to be filed within 21 days after the pronouncement of a judgment, but leave may be given to file and serve a notice of appeal, at any time, “for special reasons”.

2                     On 20 May 2010, the primary judge dismissed Mr Milne’s appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The Tribunal had affirmed a decision of a delegate of the respondent Minister to cancel Mr Milne’s Class BF Transitional (Permanent) Visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Act”).

3                     Under s 501(2) of the Act, the Minister may cancel a visa if the Minister reasonably suspects that the visa holder does not pass the character test and the visa holder does not satisfy the Minister that he or she passes the character test.  In deciding whether he was so satisfied the Minister was required, by s 499 of the Act, to apply “Direction – Visa Refusal and Cancellation under s 501 – No 21” (“Direction 21”).

4                     Mr Milne raised three grounds of appeal on questions of law before the primary judge.  Two grounds concerned an alleged failure by the Tribunal to correctly apply Direction 21.  The remaining ground concerned an alleged denial of procedural fairness by the Tribunal.  The proposed grounds of appeal from the judgment of the primary judge concern the issue of procedural fairness.  Those grounds allege that the Tribunal denied Mr Milne procedural fairness by making an adverse finding against him based on his non-completion of a rehabilitation program without affording him a reasonable opportunity to present evidence of his desire to undergo a rehabilitation program.  The grounds proposed to be relied upon, contend that the Tribunal should have drawn to Mr Milne’s attention the issue of his willingness to undergo a sexual offender program, which he had been unable to undergo in prison, and have given him a meaningful opportunity to comment on this matter in the context of his prospects of further rehabilitation.

5                     The primary judge decided that Mr Milne had failed to show that the Tribunal denied him procedural fairness by the manner in which it dealt with the issue of rehabilitation.  His Honour noted that the issue of rehabilitation is a factor listed in Direction 21 as being relevant to the primary consideration for the Tribunal of protection of the Australian community.  His Honour considered that Mr Milne should have been aware of the importance of the issue of rehabilitation prior to the Tribunal hearing.  He observed that the Tribunal referred to the sentencing judge’s order that Mr Milne undertake a sex offenders course and that the Tribunal had sought confirmation from Mr Milne that he had not completed such a course.

6                     The primary judge referred to Mr Milne’s evidence before the Tribunal that the Parole Board had decided that Mr Milne could do such a course after his release.  His Honour considered that Mr Milne had an opportunity to convince the Tribunal that he was keen to undertake a rehabilitation course but did not take up that opportunity.  At [38] of his judgment the primary judge said:

The applicant cannot complain of the failure to make a finding in his favour when he did not provide the evidence that would have equipped the Tribunal to do so.  He had the opportunity to provide that evidence.  The Tribunal was not obliged to draw the issue to his attention and give him a further opportunity.

7                     The second reason given by the primary judge for rejecting this aspect of Mr Milne’s appeal from the Tribunal concerned the effect of s 500 (6H), (6J) and (6L) of the Act.  The information which an applicant can present to the Tribunal in a matter concerning the character test is confined by s 500 (6H) of the Act to that presented in writing at least two business days before the beginning of the Tribunal hearing.  Section 500 (6J) provides the same limitation concerning documents to be relied on at the hearing.  At [39] his Honour said:

There would have been no point in the Tribunal adjourning the hearing of the applicant’s case to enable him to deal with the issue of rehabilitation by providing further information or further documents.

His Honour also referred to the time constraints provided by s 500 (6L) for the Tribunal to conduct its hearing and make its decision.  Also at [39] the primary judge said:

The Tribunal could not have adjourned the hearing, and thereby delayed its decision, until the applicant’s release on parole, to see if he actually attended a rehabilitation course during the period of his release on parole.  By that time, s 500 (6L)…would have operated, and the applicant would have lost his case in any event.

8                     The third reason given by the primary judge for rejecting Mr Milne’s claim of a denial of procedural fairness was that Mr Milne had not put material before the primary judge concerning what he “would or might have said to the Tribunal if the Tribunal had drawn to his attention the possibility of an adverse conclusion about the issue”.  See at [41], where his Honour also said:

…the applicant did not tell the Court that he had anything more that he could have advanced to the Tribunal about the question than he in fact advanced.  If, for instance, the applicant had wished to tell the Tribunal of his keenness to do a rehabilitation course, he has not put before the Court any evidence of his desire to do so.

9                     The judgment of the primary judge, having been published on 20 May 2010, Mr Milne had until 10 June 2010 to file and serve a notice of appeal, see O 52 r 15(1) of the rules of Court.

10                  Ms Wheeler is the daughter of Mr Milne.  She has sworn an affidavit on 27 July 2010 in which she makes the following points:

·                    she has had power of attorney in respect of Mr Milne’s legal matters since he was charged with criminal offences in 2005;

·                    she received a copy of the primary judge’s judgment late on Friday, 21 May 2010;

·                    on 24 May 2010 she sought assistance unsuccessfully from:

Ø                  the Refugee Immigration Legal Centre;

Ø                  the Asylum Seeker Resource Centre;

Ø                  the Human Rights Commission;

Ø                  Victoria Legal Aid ; and

Ø                  the Minister.

·                    on 25 May 2010 she contacted her father’s former solicitor who said he would find out if there was anything he could do to challenge the judgment of the primary judge.  About two days later he said there was nothing else that could be done;

·                    she could not face telling her parents about the primary judgment until 30 May 2010 when she told her mother;

·                    on 1 June 2010, her mother, Mrs Ruth Milne, told her she had contacted the Law Institute’s Legal Referral Service and obtained the names of three firms of solicitors;

·                    during that week (ie: commencing 31 May 2010) she tried to contact a lawyer from one of the firms several times without success;

·                    it was not until 22 June 2010 that she attended upon her father’s current solicitor.

11                  Mrs Milne has sworn an affidavit in which she refers to receiving, on 1 June 2010, a letter from the Law Institute with the names of three firms to contact.  She had difficulty contacting a lawyer but eventually secured an appointment on 22 June 2010 with a lawyer to seek advice on avenues of appeal.

12                  Mr Milne has affirmed an affidavit in which he says that he is currently in the Maribyrnong Immigration Detention Centre and was being held there when the primary judgment was given.  He said that he did not learn about the judgment until about 10 days after it had been published.  He has relied on his wife and daughter to find out about his legal rights.

13                  Mr Milne’s current solicitor, Ms Hearn Mackinnon has affirmed an affidavit in which she says that she first met Mrs Milne and Ms Wheeler on 22 June 2010.  She sought advice from counsel which was received on 23 June 2010.  It advised that there were grounds for an appeal.  She provided a copy of that advice to Ms Wheeler and sought further instructions.  On 12 July 2010, Ms Hearn Mackinnon received some instructions to bring the current application, with final instructions forthcoming on 23 July 2010.

14                  Ms Hearn Mackinnon has deposed that the proposed appeal raises an important issue concerning the content of the obligation to accord procedural fairness to an unrepresented applicant in relation to a matter going directly to a primary consideration in Direction 21.

15                  Ms Hearn Mackinnon referred to the Tribunal’s overlooking that Mr Milne “was not able to do [a rehabilitation course] in prison despite, in 2005, having expressed a willingness, to participate in one.”  She also says that the content of the Tribunal’s procedural fairness obligation is affected by Mr Milne being an unrepresented litigant before it.

16                  Ms Hearn Mackinnon refers to a delay of about 6 weeks (in fact 7 weeks) in seeking to file and serve a notice of appeal, the extension application having been made on 29 July 2010.  She points to the lack of prejudice to the Minister occasioned by the delay and the consequences to Mr Milne of the Court’s refusal to extend time, being his removal from Australia at the age of 69 to a country where he has not lived for 40 years.

17                  The affidavits filed on Mr Milne’s behalf show that his daughter and his wife searched earnestly to obtain appropriate legal advice between learning of the judgment, securing an appointment with Mr Milne’s current solicitor and receiving counsel’s advice.  There are, however, three unexplained periods of inactivity.  The first is from 23 June 2010 until 12 July 2010, where there was a delay in giving instructions to appeal.  The second is from 12 July 2010 until 23 July 2010 whilst instructions were “completed”.  The third is from 23 July 2010 until filing on 29 July 2010.

18                  The power of the Court to allow an appeal to be filed and served out of time for special reasons is “an elastic test, suitable for application across a range of situations, from an oversight of one day to a neglect persisted in during a prolonged period”; see Jess v Scott (1986) 12 FCR 187 at 195.  There must be grounds sufficient to justify a departure from the ordinary rule that a notice of appeal should be filed and served within the time prescribed by the rules of Court; see Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [15] per Jessup J (with whom Gyles and Besanko JJ agreed).

19                  As the Full Court said in WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7]:

The discretion to extend time is given for the purpose of enabling the court to do justice between the parties: Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262; Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 at 480.  So, for example, 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.

20                  Special reasons will not exist where the appeal has no reasonable prospect of success “in the sense that it is devoid of merits, or will clearly fail, or is hopeless or unarguable”; see SZJDS v Minister for Immigration and Citizenship [2008] FCA 1093 at [30], per Reeves J.  Lack of prejudice to the respondent occasioned by the delay in filing a notice of appeal does not of itself provide special reasons; see Perry v Comcare [2006] FCA 481 at [8], per Kiefel J.  However, the lack of prejudice to the respondent may make the Court more likely to exercise its discretion in favour of an applicant than in a case where such prejudice exists.

21                  The paramount issue is what is required in the interests of justice.  The consequences for Mr Milne of a refusal to allow his appeal to be filed is that he will be deported to the United Kingdom, a country where he has not lived since 1970.  This consequence must be seen in the context of a relatively short period of delay in filing a notice of appeal.  The notice of appeal should have been filed on 10 June 2010.  This application was filed on 29 July 2010.  Between 10 June 2010 and 23 June 2010, Mr Milne (through his wife and daughter) was seeking legal advice.  The period from 23 June 2010 to 29 July 2010 as shown at [17] contains some unexplained gaps, but the intention of Mr Milne, his wife and his daughter from 23 June 2010 appears to have been to press on with a legal challenge to the primary judgment.

22                  No prejudice arises to the Minister because Mr Milne remains in immigration detention.  In the circumstances, the only consideration which, if it existed, would militate against the exercise of the discretion in Mr Milne’s favour is if his grounds of appeal were doomed to fail.

23                  Counsel for Mr Milne, Mr Gibson, submits that the proposed appeal has a sufficient prospect of success to make it just to allow it to be heard.  Mr Gibson takes issue with the primary judge’s view that Mr Milne had sufficient opportunity to provide the Tribunal with evidence of his willingness to attend a rehabilitation course.  Mr Gibson submits that the Tribunal considered that Mr Milne’s failure to complete such a course impacted adversely on Mr Milne’s prospects of re-offending and upon “the rehabilitation already achieved” as referred to in Direction 21.  Mr Gibson contends that significant weight was placed by the Tribunal on Mr Milne’s failure to complete a rehabilitation program.  Counsel submits that there was an objective lack of conscious appreciation by Mr Milne, as an unrepresented and elderly litigant, of the potential significance of evidence of his preparedness to undertake a rehabilitation program.  Mr Gibson also contends that the Tribunal had an obligation to draw the issue of Mr Milne’s preparedness to undertake such a course to his attention and raise the matter with him for his comment.  He submits that had Mr Milne been legally represented, properly instructed counsel would have re-examined him and made submissions on this issue.  Mr Gibson emphasised the comments of the sentencing judge that without treatment Mr Milne was likely to re-offend.

24                  Counsel for the Minister, Mr Knowles, submits that the Tribunal did not deny procedural fairness to Mr Milne.  Mr Knowles refers the Court to various passages of the Tribunal’s reasons to support that submission.  He refers, first, to [21] of the Tribunal’s reasons where it said:

On 27 October 2005 the Reporting Officer at HM Prison Ararat told the Department that Mr Milne was prepared to participate in any sexual offender program, but that this had not occurred.  The officer assessed Mr Milne as having a moderate risk of re-offending.  Mr Milne said that he has not attended any rehabilitation or sex offender programs because prison authorities had decided that any such programs should be undertaken after his release on parole.

25                  The effect of that passage from the Tribunal’s reasons is that the Tribunal was aware that, as at late October 2005, Mr Milne was prepared to participate in a sex offender program but was unable to do so in prison.  The passage does not deal with whether Mr Milne remained prepared to participate in such a program at the time of the Tribunal’s decision in May 2009.

26                  Mr Knowles refers also to [24] of the Tribunal’s reasons where the Tribunal discussed the nature of Mr Milne’s offending and his lack of insight into his offending.  In the last sentence of that paragraph the Tribunal said:

He has not completed a sexual offender program or any meaningful rehabilitation or treatment.

27                  Mr Knowles submits that the Tribunal’s final sentence of [24] set out above “simply added another matter to the descriptions of the present position of the applicant”.  That is the Tribunal found that the applicant had demonstrated a lack of insight, but had not, as yet, conducted any specific rehabilitation or treatment.

28                  At [25] of its decision the Tribunal found that Mr Milne was at considerable risk of re-offending based on his criminal history and a lack of evidence that he was suffering from any diagnosed condition.  In that regard no specific adverse inference was made in respect of Mr Milne’s not having completed a sexual offender program.

29                  The Tribunal made the above observations in the context of considering that part of Direction 21 which refers to the protection of the Australian community.  Although it did no more than state a matter of fact at [24], the Tribunal did mention when considering the topic of protection of the community that Mr Milne had not completed a sexual offender program or any meaningful rehabilitation or treatment.  It did not go on to say that he had not done so because it had been impossible for him to do so in prison.

30                  At [30], in the context of considering the expectations of the Australian community as mentioned in Direction 21, the Tribunal said:

Although Mr Milne had no prior convictions at the time of the offences, and the Australian community would expect that he should be given an opportunity to change his behaviour, Mr Milne has not shown an ability and genuine desire to do so.  The Tribunal is satisfied that, although Mr Milne has spent most of his adult life in Australia, the community would expect that the perpetrator of such repugnant crimes, who is assessed as being at some risk of re-offending and who shows little evidence of stable and lasting rehabilitation, would have his or her visa cancelled in the absence of genuine remorse and medical or other reasonable explanation for the offending.  Therefore in respect of the second primary consideration the Tribunal finds strongly in favour of cancellation the visa.

31                  Mr Milne’s preparedness, as at May 2009, to participate in a sex offender program would have been a factor relevant to a genuine desire to change his behaviour.  The view of the Tribunal that he lacked such preparedness reveals that it appears not to have considered Mr Milne’s then preparedness to participate in a sex offenders program.  The only evidence before it on the issue was Mr Milne’s earlier preparedness as reflected in the 27 October 2005 statement of the Reporting Officer.

32                  Consequentially, it is hard to accept as clear cut, the submission of Mr Knowles, that the Tribunal did not draw adverse inferences about Mr Milne’s attitude to his offending conduct based on his lack of participation in specific rehabilitation and treatment, without considering Mr Milne’s attitude to undergoing such treatment as at the time of its decision.

33                  The importance the Tribunal placed on the lack of rehabilitation or treatment, despite the practical difficulties faced by Mr Milne in undergoing it, also appears at [38] of its reasons.  There the Tribunal dealt with some other secondary considerations in deciding whether to cancel Mr Milne’s visa.  In the penultimate sentence in [38], it said:

Although there is no evidence of rehabilitation or treatment, the Tribunal takes into account that his conduct in gaol has been good.

34                  The competing submissions on the question of denial of procedural fairness to Mr Milne show that Mr Milne has raised an arguable case that the Tribunal did deny him procedural fairness, by not raising for his consideration (as an unrepresented and elderly litigant) whether he was prepared, as at the time of the hearing before it, to undertake a rehabilitation program.  Notwithstanding the views of the primary judge at [42] of his reasons for judgment, reasonable minds may differ as to what view the Tribunal may have taken about Mr Milne’s prospects of re-offending, if it had have taken into account his then preparedness to undertake a rehabilitation course.

35                  Counsel for the appellant, also takes issue with the primary judge’s observation that there was no evidence before him about what Mr Milne would have said to the Tribunal, if the matter of his willingness to attend a rehabilitation course had have been raised.  Counsel further contends that there is no principle of law that in every case where the complaint is that there has been a denial of procedural fairness, it is incumbent upon the complainant to lead evidence to explain how he has been adversely affected by a particular omission.  Counsel refers to Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069, where Hely J said at [34]:

..If the applicant was not informed of the case which he had to meet, that is sufficient to establish ‘practical injustice’ without the applicant having to prove what he would have done had he been informed of that case.  Re Minister for Immigration & Multicultural Affairs, Ex parte Lam…does not decide otherwise…

See also Dagli v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 541 at [91] where the view of Hely J in Tuncok at [34] was said to be “the correct position”.  At [93] in Dagli the Full Court considered that where the denial of procedural fairness arises from the failure to give a person the chance to rebut a case put against him that person is not required to say what he would have said had he been given the chance which he was denied.  At [95] in Dagli the Full Court said:

…the submission advanced on behalf of the respondent is misconceived.  The principles enunciated in cases such as Stead and Aala are well established.  Those principles are not to be taken as having been overruled by a side wind, still less by a judgment of the Court that was given in a particular, and quite specific context.  It is one thing to say that an applicant who claims to have been denied a “legitimate expectation”, or asserts that the Tribunal misled him, must prove that he suffered “practical injustice”.  In such cases, the applicant is required to demonstrate that what occurred actually affected the outcome.  It is altogether another thing to suggest that an applicant, whose case has been considered by a Tribunal that has before it material of an adverse kind, without informing the applicant of that fact, is not entitled to relief unless he can show that there was something useful that he could have said to rebut that material.  That is simply not our understanding of the law.

36                  Mr Gibson’s submissions based on Tuncok and Dagli demonstrate that the proposed appeal, in so far as it seeks to challenge the primary judge’s view that Mr Milne was required to say what he would have said had he been asked about his willingness to undergo a rehabilitation program, have reasonable prospects of success.  It is noteworthy that Mr Knowles did not contend to the contrary; on the basis that the Court is examining presently whether there is an arguable appeal on this issue.

37                  It is arguable that the primary judge’s reliance on the combined effect of s 500 (6H), (6J) and (6L) of the Act in dismissing the application before him is also erroneous.  Compliance with the putative obligation to provide procedural fairness to Mr Milne would not have required an adjournment by the Tribunal to obtain documents, but merely a question being put to Mr Milne by the Tribunal as to whether he was still prepared to do a rehabilitation course, and a taking into account by the Tribunal in its reasons for its decision of the response to that question.  The question of the preparedness of Mr Milne to undertake a rehabilitation course, was, in any event, raised by documentary material before the Tribunal as at October 2005, as referred to at [24] above.

38                  For the reasons contained at [23] to [37] above, the grounds of the proposed appeal are not without some prospects of success and, at the very least, contain arguable contentions.  In those circumstances, given the explanations for the delay, discussed at [10] to [17] above, special reasons exist which, in the interests of justice, require that Mr Milne should have an extension of time within which to file and serve his notice of appeal.

Associate:

Dated:         10 September 2010