REASONS FOR JUDGMENT

1                     This judgment deals with an application to reinstate a proceeding which was discontinued over two years ago. 

2                     The original application was filed over three years ago, on 30 November 2007.  It was an application for judicial review which sought to challenge a decision made personally by the Minister for Immigration and Citizenship (“the Minister”) on 29 May 2007 under the Migration Act 1958 (Cth) (“the Act”) that a visa held by Mr Tiata should be cancelled.  The consequence of cancellation of Mr Tiata’s visa was that he became “an unlawful non-citizen” (s 15 of the Act) and liable to removal from Australia (s 198 of the Act). 

3                     Mr Tiata was born in Samoa on 16 June 1968.  He is a citizen of New Zealand.  He first arrived in Australia on 21 December 1988 as a visa exempt New Zealand citizen.  He departed for short periods between 2 and 5 December 1992 and 16 and 25 September 1994.  At the time of his most recent entry into Australia he was required, by changes to the legislative scheme, to hold a visa and was granted a Special Category visa for that purpose (subclass TY 444 visa).

4                     On 26 May 1995 Mr Tiata was convicted of maliciously inflicting grievous bodily harm and sentenced to two years in prison with a non-parole period of 12 months.  On 8 March 2001, Mr Tiata was convicted of “supply prohibited drug ongoing basis” and sentenced to six years imprisonment with a non-parole period of four years and six months.  It was the second of these convictions which was identified by the Minister as the immediate reason for the exercise of his discretion to cancel Mr Tiata’s visa.  Section 501(2) of the Act permits the cancellation of a visa of a person who is reasonably suspected of not passing the character test.  A person does not pass the character test if, amongst other things, they have been sentenced to a term of imprisonment of 12 months or more or to two or more terms of imprisonment where the total is two years or more.  Accordingly, Mr Tiata did not, at the time of the decision to cancel his visa, pass the character test.

5                     Mr Tiata’s application to this Court on 30 November 2007 (under the provisions of the Act in force at the time his visa was cancelled) was required to be made within 28 days of notification of the decision to him or within a further 56 days if an application for an extension of the initial period was made before the expiry of a total 84 day period from the date of notification of the decision (s 477A of the Act, as in force at that time).  Mr Tiata’s application was not made within the time required.  The application itself drew attention to the fact that an extension of time was required, but did not suggest any reason why such an extension was permissible.  The time limit was a strict one.  No reason arose to consider this difficulty before the earlier application was discontinued. 

6                     If the Court had jurisdiction to entertain Mr Tiata’s application at the time it was filed, Mr Tiata would have been restricted to review of the Minister’s decision upon the ground that the Minister had committed a jurisdictional error.  That was the effect of restrictions imposed on the Court’s jurisdiction by s 476A of the Act.  The statutory and constitutional mechanisms which produce that result were explained by Perram J in Bhullar v Minister for Immigration and Citizenship [2010] FCA 1337 at [4]-[5].

7                     The application was listed for directions on 14 December 2007 and then fixed for hearing on 17 March 2008.  On 14 March 2008 Ms T Gray, solicitor, executed a notice of discontinuance on behalf of Mr Tiata.  The notice of discontinuance was filed on 17 March 2008.  The Minister consented to the proceedings being discontinued on the terms that Mr Tiata paid “fixed costs” although those costs had not been agreed. 

8                     At the hearing on 17 March 2008 Ms Gray appeared for Mr Tiata and confirmed that her instructions were to discontinue the proceedings.  She did not consent to the amount of costs being sought by the Minister.  She explained that Mr Tiata would be unable to pay any costs which were ordered.  For reasons which I explained in a judgment given on that day (Tiata v Minister for Immigration and Citizenship [2008] FCA 380) I declined to order fixed costs and ordered that Mr Tiata pay the Minister’s costs as taxed if not agreed.  In due course, on 29 August 2008, a certificate of taxation was issued by a Deputy District Registrar certifying the Minister’s costs at $4,800.  However, notwithstanding that procedure, the proceedings were effectively at an end when the notice of discontinuance was filed on 17 March 2008.

9                     On 18 November 2010 Mr Tiata filed a notice of motion in the proceedings seeking leave to reopen them.  The notice of motion was supported by an affidavit made by him to which was attached a statutory declaration made on 22 January 2010 and a copy of the original application.  In Mr Tiata’s affidavit he disclosed that he had been arrested on 29 May 2007 “for a drug related matter”.  He described various arrangements made with Ms Gray for dealing with that issue and the proceedings in this Court.  At paragraphs 12 to 14 of the affidavit he said the following:

12                I did not give instructions to Gray to discontinue.  She did not notify me about costs, except the three hundred paid by my family.

13.       I was not present at the proceedings, so I could not instruct her.  She also said I could not attend because I had no visa.

14.       If I was present different avenues would have been pursued.  For example an adjournment, discussions about costs with me, or even presented the legal arguments.

10                  One matter which appears to be of concern to Mr Tiata, arising from these paragraphs, is the question of his exposure to costs.  Whether that is so or not is not relevant to his present application and I will put that issue to one side.

11                  I am prepared to accept that the Court has power to set aside the notice of discontinuance (see Christodoulou v Disney Enterprises Inc [2006] FCAFC 183 at [25]-[28]).  I am prepared to make that assumption because there are more fundamental barriers which stand in Mr Tiata’s way. 

12                  Mr Tiata emphasised at the hearing of the notice of motion, which took place on 3 December 2010, that his first objective was to have his application reinstated, rather than advance any argument in support of it, but I informed him that one matter I would need to consider was whether, if there was power to reinstate the application, it would be futile to do so if he could not possibly succeed.  He then gave me some idea of the principal focus of his intended argument in support of his application, with which I will deal later, together with the grounds which appeared in the application itself.

13                  The first matter which requires attention is whether the Court had (or has) any power to deal with the application at all.  Resolution of that question requires attention to the time limits on such applications which were in force at the time the application was filed, and the way those time limits affected a right to challenge a decision of the kind made by the Minister in Mr Tiata’s case.

14                  The Minister’s decision was made personally by him.  Section 474 of the Act rendered it a “privative clause decision” with the result that it was only challengeable for jurisdictional error.  Section 476A of the Act gave the Court original jurisdiction in relation to such a decision (s 476A(1)(c)).  The jurisdiction of the Administrative Appeals Tribunal (“the AAT”) under s 44 of the Administrative Appeals Tribunal Act (1975) (Cth) was removed (s 483 of the Act) with the result that no “appeal” lay to the AAT.  Section 477A of the Act provided (at the time the application was filed):

477A   Time limits on applications to the Federal Court

(1)        An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

(2)        The Federal Court may, by order, extend that 28 day period by up to 56 days if:

(a)        an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision;

            and

(b)        the Federal Court is satisfied that it is in the interests of the administration of justice to do so.

(3)        Except as provided by subsection (2), the Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.

(4)        The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.

15                  In submissions filed on 13 March 2008 on behalf of the Minister no point was taken that Mr Tiata’s application was made outside the time limits imposed by the Act.  Mr Baird suggested, at the hearing before me on 3 December 2010, that the reason why that issue may not have been raised was the inability of the Minister to point to firm evidence of when the Minister’s decision was actually handed to Mr Tiata.  In WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94; 201 ALR 190 the High Court held that particular requirements then appearing in the Act required physical delivery of some decisions (see especially at [37]).  Despite later amendments to the Act, a Full Court held in Minister for Immigration and Citizenship v SZKKC (2007) 159 FCR 565 that a similar obligation arose when “actual (as opposed to deemed)” notification of a decision was required by the Act.  That was the position under s 477A of the Act as it was in force at the time Mr Tiata’s application was lodged.  Mr Baird’s suggestion may therefore provide the explanation why the matter was not raised earlier but it does not suffice to remove the issue for present purposes, for a number of reasons.

16                  Mr Tiata’s affidavit filed in support of his application for reinstatement of the proceedings recorded that he was given the decision to cancel his visa by two identified persons at Silverwater Remand Centre (where he was in custody) on 7 June 2007.  That statement is consistent with a file note, also dated 7 June 2007, recording hand delivery by the two officers on that day, which is in the “Appeal Book” prepared and filed for the hearing of the original application.  Mr Tiata therefore had until 31 August 2007 at the latest (if the other requirements of s 477A were met – which they were not) to challenge the Minister’s decision.  Any attempted challenge after that date was not one which the Court could entertain.

17                  The time limits in s 477A were altered with effect from 15 March 2009.  From that date s 477A provided:

477A       Time limits on applications to the Federal Court

477A(1)    An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

         (2)   The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

         (3)   In this section:

date of the migration decision has the meaning given by subsection 477(3).

          (4)  For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection 477(3).

18                  The new provisions only applied to applications made under s 477A on or after 15 March 2009 (Migration Legislation Amendment Act (No 1) 2009 (Cth) ss 2, 3; Sch 2 cl 7).  They did not apply, therefore, to Mr Tiata’s application, or give the Court any power to extend the time for making that application.

19                  The result of the foregoing discussion is that the Court has no power to deal with the application which Mr Tiata wishes to have reinstated.  Even if that was not so, there are other reasons why it would be inappropriate to reinstate the proceedings.

20                  The first additional reason which would lead to the rejection of the application to reinstate the proceedings is that it would be futile to do so as there is no prospect of Mr Tiata persuading the Court that the Minister’s decision was affected by any jurisdictional error.  In order to explain why that is so, it is necessary to deal with the factors taken into account by the Minister when he exercised his discretion to cancel Mr Tiata’s visa.  First, it is appropriate to observe that, although the Minister was bound by the requirements of natural justice when he exercised his discretion under s 501(2) of the Act, because he exercised a personal discretion he was not bound by any particular set of guidelines.  His discretion was, in that sense, a general and unfettered one.  That having been said, however, it is appropriate to note that Mr Tiata was informed about what matters the Minister would take into account, and those are the matters which were taken into account. 

21                  The grounds in the application, filed on Mr Tiata’s behalf, challenging the Minister’s decision of 29 May 2007, were expressed as follows:

1.         Denial of Procedural Fairness

a.         Mr Tiata has been denied the right to a solicitor to be present at interviews which is a palpable denial of procedure fairness.

b.         Mr Tiata is seeking leave of the Court to lodge this appeal out of time due to never been advised that he had a right of appeal.

c.         Being incarcerated, Mr Tiata did not have ready access to legal advice.

d.         No attempt was made by the Department to ensure Mr Tiata was aware of his rights.

e.         Mr Tiata’s letter advising him that the Minister was cancelling his Visa was sent four years after Mr Tiata was first advised that the Minister was considering cancellation of his visa.

2.         Good Character:

a.         Mr Tiata and his partner have two children, and he has three children from a previous relationship.

b.         Before being arrested, Mr Tiata resided with his partner, their two children and his 13 years old daughter who suffers from cerebral palsy.

c.         Even though he does not live with all of his five children, he provides financial and emotional support for all of them, especially for the one who suffers this the aforementioned disability.

d.         Mr Tiata strong commitments include his duties as a carer to his Australian partner who suffers from cancer, and his 13 years old daughter who suffers from cerebral palsy.

e.         The Minister did not give sufficient weight to Mr Tiata’s living arrangements nor his relationship with his children.

f.          The Minister failed to take into consideration or in the alternative failed to give proper weight to:

i)          the fact that Mr Tiata came to Australia when he was 20 years old and apart from brief sojourns to New Zealand, he has resided since his arrival in 1988, in Australia.

ii)         Mr Tiata is likely to suffer severe financial and emotional hardship if he is removed to New Zealand without his family.

iii)                 Mr Tiata has strong links to Australia through his partner of 12 years and his children.

g.         Criminal antecedents:  Mr Tiata had one previous charge for possession of prohibited substance.  However, he has not had any convictions since 1999.

22                  There is no substance in the grounds suggesting that Mr Tiata was denied procedural fairness.  On 3 July 2003 Mr Tiata was informed in writing that cancellation of his visa was under consideration by the Minister and what matters would be taken into account in that consideration.  He was invited to respond.  On 19 May 2004 a further invitation to comment was made to him in writing.  He appears to have responded to both these notices at the same time.  The Appeal Book contains a lengthy submission from him, apparently received on 11 July 2004, attaching a number of documents, including references.

23                  On 11 July 2006 Mr Tiata was advised that the question of the cancellation of his visa was “again under consideration” and he was invited to provide “any further or new information” that he wished taken into account.  Again he responded at some length, attaching further documents and further references.  It is clear from the Minister’s decision, which I will discuss further shortly, that the matters relied on by Mr Tiata, expressed by him and by others, were taken into account.  There can be no suggestion, notwithstanding Mr Tiata’s disappointment with the decision, that he was not given an opportunity to make out a case for retention of his visa.

24                  It is evident from the grounds in the application concerning Mr Tiata’s character that his complaint (understandably from his point of view) is that the matters to which he drew attention in his responses did not receive greater weight in the Minister’s evaluation.  However, a broader context must be borne in mind.

25                  Section 499 of the Act permits the Minister to give directions to decision makers under the Act in relation to the performance of their functions or the exercise of their powers.  The offence for which Mr Tiata was convicted and sentenced in 2001 is an offence which is identified as a “very serious” one in a Direction issued by the Minister under s 499 of the Act.  The Minister was not, in the present case, bound personally by the direction but recorded that he decided to be guided by the factors which were set out.  Amongst those factors was the following:

2.6       It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:

(a)       the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:

▪           persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people;

▪           the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders.  It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and

▪           offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community.

26                  The Minister recorded that he gave this consideration great weight and the expectations of the Australian community great weight.  He also recorded that he gave the risk of recidivism low to moderate weight and the deterrent effect of cancellation of Mr Tiata’s visa little weight.  On the other hand the Minister’s decision also recorded the following matters:

Best Interests of the Child

14.       I gave primary consideration to the best interests of any children who are less than 18 years of age and with whom Mr Tiata is in a parental or other close relationship.

15.       I considered that Mr Tiata states he has five daughters, who all reside in Australia.  Three of his daughters reside with him and his partner, Ms Terese Martin on a full time basis and one of these children suffers from cerebral palsy.  He has shared custody of his other two children.  All of these children depend on their father for financial and emotional support.  I concluded that these children would suffer considerable hardship should Mr Tiata’s visa be cancelled and he is required to depart Australia.

16.               The fact that Mr Tiata has the abovementioned parental relationships, and that some of his children may be denied future contact with him weighs heavily against cancelling Mr Tiata’s visa and I therefore gave this consideration great weight.

…

Other Considerations

18.       I considered that Mr Tiata claims to be in a de facto spouse relationship with Ms Terese Martin, who resides in Australia, and has been in that relationship for a period of approximately ten years.  Mr Tiata resides with Ms Martin and their two daughters, who are under the age of 18, and also Mr Taita’s daughter from a previous relationship, who is also under the age of 18, and who suffers from cerebral palsy.  I concluded that Mr Tiata’s de facto spouse, and their children considered above, would suffer great hardship should Mr Tiata’s visa be cancelled and he is required to depart Australia.

19.       I considered that Mr Tiata’s partner, Ms Terese Martin suffers from Endometriosis, and has been diagnosed with cervical cancer for which she has already undergone two operations.  Mr Tiata states that because of her condition, he does the majority of the housework and general looking after the children.

20.       I considered that Mr Tiata has gained stable employment since his release from prison and that he has otherwise been a contributing member of Australian society.

21.       I considered that most of Mr Tiata’s immediate family reside in Australia, including his parents, siblings, aunts and uncles, with whom he has regular contact.  These family members also offer support to Mr Tiata.  I therefore considered that Mr Tiata appears to have stronger ties with Australia than New Zealand.

22.       I considered that Mr Tiata has some extended family in New Zealand (as advised to the Department by his partner, Ms Terese Martin), with whom he has some contact.  I therefore concluded that Mr Tiata may have some family support should his visa be cancelled and he is required to depart Australia.

23.       The information relevant to the ‘other considerations’ above weighs against cancelling Mr Tiata’s visa.  However, balanced against the other factors above, I gave this consideration moderate weight.

27                  Because any review in this Court is limited to the question of whether jurisdictional error has been committed there is no scope to substitute, for the decision of the Minister, any other assessment of the merits of Mr Tiata’s position.  It is clear enough that Mr Tiata has a substantial basis upon which to seek the exercise of the discretion that he be allowed to remain in Australia.  However, it is equally clear that the Minister took those matters into account.  It is not open to the Court to intervene in Mr Tiata’s interests unless the Minister failed to take relevant matters into account or committed some other jurisdictional error.  No matter of that kind was identified in the application itself.

28                  In his oral submissions at the hearing on 3 December 2010, Mr Tiata referred a number of times to the support he believed his case received from the decision of the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (“Teoh’s Case”).  Mr Tiata obviously regarded the case as a close parallel to his own, at least on the facts.

29                  Mr Teoh was a Malaysian citizen who, after entry to Australia, married an Australian citizen with four children.  Three further children were then born.  While his application for a permanent entry permit was pending Mr Teoh was (as Mr Tiata has been) convicted of drug offences.  The “bleak future” faced by Mr Teoh’s wife and family if he was deported was recognised but his compassionate claims were outweighed by his criminal record.  The High Court held that Mr Teoh had a “legitimate expectation” that, in accordance with the United Nations Convention on the Rights of the Child (which had been ratified by the Commonwealth Executive on 17 December 1998 and entered into force in Australia on 16 January 1991), the best interests of the children would be treated as a “primary consideration” whereas they were not in that case.  Accordingly, it was found that there had been a lack of procedural fairness given to Mr Teoh and possibly a failure to take a relevant consideration into account in Mr Teoh’s case which required that further attention be given to it.

30                  The difficulty for Mr Tiata in attempting to make any comparison with Teoh’s Case is that time has not stood still.  The Ministerial direction, to which the Minister explicitly said he had paid regard, specified “the best interests of the child”, as one of three primary considerations to which regard was to be paid.  The passages from the Minister’s decision, which I earlier set out, illustrate that “the best interests of the child” was treated as a “primary consideration” and given “great weight”.  Mr Tiata’s attempt to draw a parallel with Teoh’s Case cannot assist his own case.

31                  The result of all these matters is that, even if there had been power to reinstate the proceedings, it would have been futile to do so.  I would have refused the application for reinstatement on that ground.

32                  On the application for reinstatement the Minister relied on one further matter by way of opposition.  My attention was drawn to the fact that Mr Tiata had learned about the discontinuance of the proceedings by 22 January 2010 at the latest.  In the statutory declaration made on that date, which was attached to Mr Tiata’s affidavit filed in support of his application for reinstatement of the proceedings, he referred to being informed that “the matter has been finalised”, to protesting it had happened without his knowledge and to saying he would “pursue this on a later date”.  There is some force in the Minister’s argument that the subsequent further delay of over nine months should operate as a bar to the exercise of any discretion to reinstate the original application.  However, in the circumstances of this matter I would not have denied Mr Tiata an opportunity to pursue his application for that reason alone.  I can see no prejudice to the Minister if he had been allowed to do so.

33                  There is one further matter to record, only to emphasise that it has played no part in my decision on the application for reinstatement.  Mr Tiata informed me without hesitation, in answer to my questions about events since his original application was filed, that he had been arrested again on 29 May 2007 for supplying drugs.  He was subsequently convicted and sentenced to four years and six months imprisonment, with a non-parole period of three years, four months and 15 days.  He was released from prison on 14 October 2010 with a further period of parole of 16 months remaining.  He was then taken into immigration detention, in light of the visa cancellation.  It was after that event, on 18 November 2010, that the application for reinstatement was filed.  Mr Tiata’s further criminal record for drug related offences would probably have presented additional problems for him if he had succeeded in securing further consideration by the Minister of the cancellation of his visa but, as I have indicated, that matter has had no effect on the questions which have required decision in the present proceedings.

34                  The Court has no power to grant Mr Tiata any relief, nor to reinstate his original application.  In any event, there is no prospect that Mr Tiata could succeed if his application was reinstated.  For those reasons the application to reinstate the proceedings must be dismissed.  There is no reason why, under the ordinary rule, costs should not follow the result of Mr Tiata’s application and he must therefore pay the Minister’s costs (if they are sought) as taxed, if not agreed.

Associate:

Dated:         10 December 2010