FEDERAL COURT OF AUSTRALIA

Huynh v Minister for Immigration & Citizenship [2011] FCA 1333

THE COURT ORDERS THAT:

1.    The application to extend the 35 day period in which to make an application to the Court for review of the decision of the Administrative Appeals Tribunal in [2010] AATA 817 is refused.

2.    The applicant pay the first respondent’s costs, as taxed or agreed.

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

REASONS FOR JUDGMENT

Introduction

1    This is an application for review under s 476A(1)(b) of the Migration Act 1958 (Cth) (‘the Act’) of a decision of the second respondent (‘the Tribunal’) in Re Hoai Han Huynh and Minister for Immigration and Citizenship [2010] AATA 817 (‘Reasons’), affirming a decision of a delegate of the first respondent (‘the Minister’) to cancel the applicant’s Return (Residence) (Class BB/155) visa pursuant to s 501(2) of the Act.

2    The Tribunal’s decision was made on 25 October 2010. This proceeding was not commenced until 22 June 2011. Under s 477A(1) of the Act, any application has to be filed within 35 days of the date of the Tribunal’s decision. However, the Court may, by order, extend the 35 day period under s 477A(2) if an application for an extension has been made in writing to the Court specifying why the applicant considers that it is necessary in the administration of justice to make the order, and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

Background

3    The applicant is a Vietnamese citizen. He arrived in Australia in June 1995 when he was 12 years of age. Since 25 November 1999, he has held the visa described in [1] above by virtue of which he was allowed to remain in Australia, subject to the provisions of the Act.

4    Since arriving in Australia, the applicant has committed numerous offences and has spent over 8½ years in gaol. On 28 July 2010, the Minister cancelled his visa on the ground that he did not pass the character test under s 501 of the Act. The applicant sought review of that decision.

Relevant Legislation

5    By s 501(2) of the Act, the Minister may cancel a person’s visa if:

‘(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.’

6    A person is taken not to pass the character test if she or he has a ‘substantial criminal record’: s 501(6). A person has a ‘substantial criminal record’ if she or he has been sentenced to a term of 12 months imprisonment or more, or has been sentenced to two or more terms of imprisonment totalling two years or more: s 501(7). It is common ground that the applicant does not pass the character test.

Evidence in Support of Application for Extension of 35 Day Period

7    In support of his application for an extension of the 35 day period, the applicant relied on an affidavit sworn 8 August 2011 (Ex 1) in which he deposes as follows:

‘2.    On 25 October 2010 the Administrative Appeals Tribunal (AAT) affirmed the decision of the delegate of the Minister for Immigration and Citizenship to cancel my Return Residence visa under s.501 of the Migration Act 1958.

3.     On 24 October 2010 I was transferred from prison to the Villawood Immigration Detention Centre.

4.     On 2 May 2011 I applied to the Federal Magistrates Court for judicial review of the decision by the AAT.

5.     Around the time the AAT affirmed the decision to cancel my visa I was transferred from prison to Villawood. I had spent many years in prison and was familiar with the staff and with the procedures in prison. I knew that I could ask the Welfare Officer in prison for help and advice with legal problems such as applying to the Court.

6.     However I was very new to Villawood and did not know, at first, whom to ask for help when I was first told of the AAT’s decision. I did not even know how to approach any of my fellow detainees for help.

7.     I did not know how to apply to the Courts for judicial review of the AAT’s decision.

8.     My mother fled Vietnam when I was about 2 years old leaving me behind. She came to Australia as a refugee. I joined her in Australia when I was 12 years old. I had always believed that I was also a refugee because my mother had been accepted as a refugee in Australia.

9.     Sometime after receiving the AAT’s decision, I approached a Case Manager at Villawood. To the best of my recollection and understanding, I had a conversation with this Case Manager to the following effect:

Case Manager:    If you believe you are a refugee, you can apply for a protection visa. The Department of Immigration and Citizenship can provide you with assistance to apply.

10.     Following the above conversation I took a number of steps to ensure I would not be forced to leave Australia, as follows:

12 Nov 2010    I made a request for application assistance to the Department of Immigration and Citizenship for the purpose of lodging a protection visa application.

29 Nov 2010     With the help of a registered migration agent provided by the Department of Immigration and Citizenship, I lodged an application for a protection visa.

16 Dec 2010    A delegate of the Minister refused my application for protection visa.

21 Dec 2010    I applied to the Refugee Review Tribunal for merits review of the decision to refuse a protection visa.

29 March 2011    The RRT affirmed delegate’s decision to refuse protection visa.

April 2011    I applied to Legal Aid NSW for assistance – in regard to both the AAT’s decision and the RRT’s decision.

9 April 2011     I received a letter (of this date) from Legal Aid NSW refusing me Legal Aid. I then applied to the Legal Aid Review Committee for legal aid.

28 April 2011    I applied to NSW Bar Association for legal assistance. This was refused.

2 May 2011    With the help of a fellow detainee at Villawood (a student, who has since been sent back to China) I filed an application for judicial review in regard to the AAT decision at the Federal Magistrates Court.

30 May 2011    I appeared in the Federal Magistrates Court and was told I had filed in the wrong Court

8 June 2011    Appeal for legal aid to the Legal Aid Review Committee rejected.

22 Jun 2011    I file an application for review of the AAT decision at the Federal Court.

July 2011    I applies [sic] for legal assistance to NSW Law Society

5 July 2011    The Law Society of NSW sends me letter saying that there were no solicitors on their Pro Bono panel able to assist.

17 July 2011    I instructed Legal and Company, solicitors whom my mother had arranged to act for me, at Villawood.

11.    In support of the above, I annex copies of the following documents:-

Annexure    Document

HHH 1    Cover page and first page of the Statement of Decision and Reasons of the Refugee Review Tribunal, 29 March 2011 (confirming date of application for a protection visa, date of application for review to Refugee Review Tribunal and date of decision of RRT)

HHH 2    Letter from Legal Aid NSW dated 9 April 2011

HHH 3    Letter from the NSW Bar Association dated 3 May 2011

HHH 4    Letter from Legal Aid NSW dated 26 May 2011

HHH 5    Letter from Legal Aid (Review Committee) dated 9 June 2011

HHH 6    Letter from NSW Bar Association dated 15 June 2010(sic) - 2011

HHH 7    Facsimile from Law Society NSW dated 16 June 2011 forwarding a Pro Bono Application form.

HHH 8    Letter from Law Society NSW dated 5 July 2011

12.    After receiving the decision from the Administrative Appeals Tribunal, I actively sought legal assistance and took whatever steps I then believed to be available to me to prevent being sent back to Vietnam. The reason I did not immediately apply to the Federal Court was because I was confused about what I should do. I had always believed that I was a refugee. This is why I applied for a protection visa. I thought that the Case Officer at Villawood had advised me that I was a refugee (because my mother was a refugee). I thought this was why I had received assistance to apply for a protection visa from the Department of Immigration and Citizenship. At the time I believed this was what I had to do to stop being sent back to Vietnam.

13.    I did not intentionally delay in applying to the Federal Court. The delay was because I was confused as to the proper legal steps to take in my situation and because I could not get any legal assistance to apply to the Court. I finally applied to the Court (the Federal Magistrates Court) after getting assistance from a fellow detainee. He was not a lawyer but he was a student in Australia.

Exhibit HHH 9 - Draft Amended Application under the Migration Act

14.    Exhibited with this affidavit is Exhibit HHH 9 which is a draft Amended Application under Migration Act seeking judicial review of the AAT’s decision.

Exhibit HHH 10 – Psychological Assessment in support of reasons for delays:

15.    Exhibited with this affidavit is Exhibit “HHH 10” which is a copy of a Psychological Assessment Report by Dr. John Jacmon, Registered Psychologist dated 25 July 2011.’

Minister’s Position on the Application for Extension of 35 Day Period

8    The Minister opposed the extension application on two grounds. First that the delay is lengthy (eight months) and has not been satisfactorily explained by Ex 1. In particular, it is not clear why the applicant could not have done, up to eight months before, what he ultimately did, that is, ‘get lawyers and file an application in the right court’. In the words of the Minister’s counsel at T/29:

‘If he chooses to rely on friends in Villawood for advice or chooses to take other steps such as applying to the Refugee Review Tribunal, applying for a protection visa and then the RRT, that’s a matter for him. But none of those steps that he has taken stopped him being able to seek correctly [sic] legal advice about what to do as regards the AAT decision much earlier. And as I have said that’s indicated by the fact that he has ultimately been able to do that and doesn’t give any explanation as to why he couldn’t have done that earlier.’

9    The second ground on which the Minister opposed the extension application was that the only proposed ground of review in the draft amended application (Ex ‘HHH 9’ to Ex 1) had no prospect of success.

10    If the first ground was the only basis for the Minister’s opposition to the extension application then I would be inclined to grant the extension. However, the second ground, if established, would make that futile. It is therefore necessary to consider the proposed ground of review in the applicant’s draft amended application and come to a conclusion as to its prospects of success. Before undertaking that task, it is first necessary to consider the reasons of the Tribunal below.

The Tribunal’s Decision

11    The Tribunal’s conclusion is expressed at [61] to [63] of its Reasons as follows:

‘[61]    Despite evidence that suggests Mr Huynh may have been making efforts to change his behaviour, I am not satisfied that he will not revert to committing serious and violent offences. In my view, there is an unacceptable risk of harm to the Australian community from his conduct in the future. I am not satisfied that any other primary considerations contained in the Direction outweigh that unacceptable risk of harm.

[62]    I accept that Mr Huynh’s mother and half-sister may wish to support him and that his mother, in particular, will be distressed at his removal. I acknowledge that he has few, if any, meaningful ties in Vietnam and that it will be difficult for him to re-establish himself there. It is quite possible that his rehabilitation will be set back if he is deported. However, I am satisfied that the degree of unacceptable risk that he poses to the Australian community far outweighs all other considerations.

[63]    I affirm the decision under review.’

12    In the course of reaching that conclusion, the Tribunal –

(1)    canvassed the requirements of Direction [No. 41] – Visa refusal and cancellation under s 501 (‘Direction 41’) – pursuant to which the discretion in s 501(2) must be exercised, noting that, to the extent that they are relevant to the particular case, a decision-maker must take into account four primary considerations and seven other considerations: (Reasons: [5] – [7]);

(2)    listed the four primary considerations and the relevant other considerations: (Reasons [8] and [9]);

(3)    set out the relevant background facts leading to the cancellation of the applicant’s visa: (Reasons: [12] – [16]);

(4)    considered the applicant’s factual case against the four primary considerations: (Reasons [17] – [50]); and

(5)    considered the applicant’s factual case against the other considerations, to the extent relevant, according them less weight: (Reasons [51] to [60]).

The Applicant’s Proposed Appeal

13    I indicated to counsel for the applicant at T26/27 that I proposed to deal with the application for extension on the basis that, if I was minded to grant it, I would at the same time proceed to deal with the appeal founded on the draft amended application which was Ex ‘HHH 9’ to the applicant’s affidavit (Ex 1), and that his submissions should be articulated on that premise.

14    The applicant’s amended application (Ex ‘HHH 9’) only raises one ground. It is raised in the following terms:

‘The Tribunal misconstrued and misapplied the law. Alternatively, the Tribunal failed to take into account [a] relevant consideration.’

This was particularised in the following way:

‘i)    Under Australia’s international obligations, the applicant’s mother was permitted to settle in Australia as a refugee. She was unable to bring the applicant, then two years old, with her.

ii)    The applicant’s mother sponsored the applicant and brought him to reside in Australia when the applicant was 12 years old.

iii)    Delegated legislation (Ministerial Direction 41) requires that “relevant international obligations” are to be considered and considered as a “Primary consideration” in the exercise of the discretion to cancel the applicant’s visa.

iv)    Australia’s international obligations include the obligation to permit the unit of a refugee’s family (see the 1951 Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons; the United Nations Convention Relating to the Status of Refugees; the International [Covenant] on Civil and Political Rights).

v)    The Tribunal failed to consider – as a primary consideration – Australia’s international obligations to the applicant’s mother to permit and maintain the unity of the applicant’s mother’s family.’

15    So understood, the only ground that the applicant would rely on if I were to grant an extended period in which to make his application to the Court for review of the Tribunal’s decision, would be that the Tribunal failed to consider – as a primary consideration – what he asserted were Australia’s international obligations to his mother as a refugee to permit and maintain the unity of her family, and that the Tribunal’s failure to consider this obligation – as a primary consideration – resulted in the Tribunal’s decision being vitiated by jurisdictional error.

16    No such argument was put to the Tribunal or, if it was, it was not referred to by the Tribunal when it considered the fourth of the primary considerations – any relevant international obligations (clause 10(1)(d) of Direction 41) – see [47] of the Tribunal’s Reasons, where the Tribunal observed that the only submission ‘was in respect of Australia’s obligations under the Refugees Convention and to the right to freedom of religious belief under Article 18 of the International Covenant on Civil and Political Rights’.

17    Clause 10(1)(d) of Direction 41 refers to certain international obligations which are to be considered, but clearly these are not intended to be exhaustive:

‘(i)    the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii)    the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).’

18    Clause 10.4 of Direction 41 provides:

‘10.4    International obligations

(1)    Reflecting Australia’s obligations under the CROC, if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child.

(2)    Where relevant, any non-refoulement obligations, including under the Refugees Convention, must be considered.

Note:    Notwithstanding international obligations, the power to refuse to grant a visa or cancel a visa must inherently remain a fundamental exercise of Australian sovereignty. The responsibility to determine who should be allowed to enter or to remain in Australia in the interests of the Australian community ultimately lies within the discretion of the responsible Minister.’

19    Clause 10.4.2 of Direction 41 further provides:

‘10.4.2.    Convention and the Protocol Relating to the Status of Refugees

(1)    In cases where issues of protection pursuant to the Refugees Convention are raised by the person or are clear from the facts of the case, they must be given consideration.

(2)    If Article 33(1) of the Refugees Convention applies, consideration is to be given to whether the benefit of that provision may not be claimed by the person because of Article 33(2) of the Refugees Convention.’

20    While cl 10.4.3 of Direction 41 refers to other relevant international obligations in the following terms:

‘10.4.3    Other relevant international obligations

(1)    The following are to be considered:

(a)    The ICCPR has an implicit non-refoulement obligation where, as a necessary or foreseeable consequence of their removal from Australia, the person would face a real risk of violation of their rights under Article 6 (right to life), or Article 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment), or face the death penalty, no matter whether lawfully imposed (Second Optional Protocol);

(b)    The CAT has an explicit prohibition against refoulement where there are substantial grounds for believing the person would be in danger of being subjected to torture; and

(c)    The prohibition against refoulement under the ICCPR and CAT is absolute. There is no balancing of other factors if the removal of a person from Australia, including if that removal followed as a consequence of the refusal or cancellation of a visa, would amount to refoulement under the ICCPR or the CAT.’

21    Direction 41 makes no reference to an international obligation of Australia to the applicant’s mother to permit and maintain the unity of her family, by reason of her status as a refugee, which must be considered and weighed as a primary consideration.

22    Direction 41 does, of course, list among the seven other considerations to which regard is to be had:

(1)    family ties, the nature and extent of any relationships (cl 11(3)(a)); and

(2)    hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia (cl 11(3)(e)),

but the Tribunal had regard to these other considerations at [52] and [57] to [59] of its Reasons.

23    In the course of oral submissions, counsel for the applicant, not without some hesitation, identified the source of the international obligation which he claimed Australia owed to the applicant’s mother, as a refugee, and to which he claimed the Tribunal had no regard as a primary consideration, as being the International Covenant on Civil and Political Rights (‘ICCPR’). The ICCPR was signed on 18 December 1972 and ratified on 13 August 1980 by Australia. Indeed, it is referred to in cl 10(1)(d)(ii) of Direction 41: see [16] above; and in cl 10.4.3(1)(a) of Direction 41: see [20] above. But the only provision of the ICCPR that has any relevance to a principle of permitting and maintaining family unity of a person is Article 23.1. It provides:

‘The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’

However, this provision, like the Universal Declaration of Human Rights, is cast more in terms of declaration than obligation and is to be contrasted with the terms of obligation cast by Article 6 (right to life) or Article 7 (freedom from torture and cruel inhuman or degrading treatment or punishment).

24    The principle of family unity is not incorporated in the Refugees Convention, but was the subject of Recommendation B, included in the Final Act of the Conference of Plenipotentiaries of 1951, as one commentator has put it – ‘an indication of the wish of the signatories to retain freedom in these matters’: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [21]. In that case, the High Court said (at [21], [23] and [25]):

‘That freedom is expressed in the Australian legislation in the distinct treatment of refugee claims and dependent claims by family unit members …

The distinction … apparent on the face of s 36 of the Act … went … beyond observance of the international obligations imposed by the Refugees Convention.’

25    In my view, neither Article 23.1 nor any other provision of the ICCPR imposes an international obligation on Australia to the applicant’s mother, as a refugee, to permit and maintain the unity of her family. It follows, in my view, that the failure of the Tribunal to have regard to that matter as a primary consideration was not a failure at all; and certainly did not infect the Tribunal’s decision with jurisdictional error.

26    In any event, as noted in [22] above, the Tribunal did have regard to such matters – family ties, the nature and extent of any relationships (cl 11(3)(a)); and hardship likely to be experienced by the applicant and his immediate family members lawfully resident in Australia (cl 11(3)(e)) albeit under the head of ‘other considerations’ rather than ‘primary considerations’. Nevertheless, as Bennett J concluded in Mordechai v Minister for Immigration and Citizenship [2011] FCA 986 at [58] – [60], this does not involve any error of law on the part of the Tribunal.

Conclusion

27    For the foregoing reasons, in my view, the applicant has no prospects of succeeding in an appeal from the Tribunal’s decision on the only ground raised in his draft amended notice of appeal. It would be futile to grant an extended period in which to make that application and, for that reason, the extension application is refused.

Associate:

Dated:    23 November 2011