FEDERAL COURT OF AUSTRALIA

Herring v Minister for Immigration and Citizenship [2012] FCA 970

THE COURT ORDERS THAT:

1.    The application for an extension of time is refused.

2.    The Applicant pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    The Applicant, Mr Keith Herring, was born in England in June 1946. He first came to Australia in 1986. In 1994 he was granted a Transitional (Permanent) Visa.

2    Mr Herring has a significant criminal record, both before and after his arrival in Australia. In 1995 he was convicted of murdering his wife. For that offence he was sentenced to imprisonment for a period of 22 years and 3 months. Whilst in prison he committed further offences. To regularise his status whilst in prison, Mr Herring was granted on 18 May 2007 a Bridging visa. He was released from prison in June 2012 and was immediately thereafter taken into detention at the Villawood Detention Centre in Sydney.

3    In October 2005 a decision was taken to cancel his visa. An application to review that decision was made to the Administrative Appeals Tribunal. In April 2006 the Tribunal affirmed the cancellation decision: Re Herring and Minister for Immigration and Multicultural Affairs [2006] AATA 319. The Tribunal was satisfied that Mr Herring had “a substantial criminal record” within the meaning of and for the purposes of s 501 of the Migration Act 1958 (Cth). After reaching that conclusion, the Tribunal went on to make the following findings:

Should the discretion to cancel the visa be exercised?

[15]    Two of the three primary considerations set out in Direction No. 21 are relevant in Mr Herring’s case – the protection of the Australian community and the expectations of the Australian community.

[16]    In considering the protection of the Australian community I am required to take into account the following:

•     the seriousness and nature of Mr Herring’s conduct;

•     the likelihood that the conduct may be repeated (including the risk of any recidivism); and

•     whether visa refusal may prevent or discourage similar conduct (general deterrence).

[17]    The Direction provides that the Government considers that the making of false or misleading statements in connection with entry into Australia, serious theft, murder and any other form of violence against persons are regarded as very serious offences. The sentences imposed are indications of the seriousness of the conduct as are the extent of a criminal record and the repugnance of the crime(s) involved.

[18]    A consideration of all the factors referred to in the preceding paragraph can leave no doubt that the seriousness and nature of Mr Herring’s conduct is such that the protection of the Australian community is best served by the cancellation of his visa. In both his Application for Entry for Settlement (dated 22 January 1987) and his Immigration Application (dated 21 March 1987), Mr Herring falsely stated that he had not been convicted of any offence. In addition he has a conviction for the murder of his wife and a number of convictions for assault and dishonesty. He is currently serving a term of imprisonment for 22 years and 3 months and has served several previous terms of imprisonment for violent crimes. His criminal record is very extensive including a conviction for a crime which the great majority of the community would regard as one of the most repugnant.

[19]    I have considered the possible mitigating factors set out in paragraph 2.8 of the Direction. None of these factors are relevant in this matter.

[20]    Although I cannot be satisfied that Mr Herring is likely to commit another murder, the fact he has committed so many crimes involving violence to others and has continued to commit such acts whilst in prison brings me to the conclusion that there is a likelihood violent conduct towards others may be repeated.

[21]    I am not able to decide on the evidence before me that the cancellation of Mr Herring’s visa would have a general deterrent effect. The nature of his offences are so serious that I have considerable doubt as to whether the risk of visa cancellation would have any effect on a person minded to commit similar offences.

[22]    The extent and nature of Mr Herring’s criminal record together with his conduct while in prison is such that most members of the Australian community would expect that he be removed from Australia at the appropriate time. Clearly he has not met the community expectation that a member of the Australian community will obey its’ laws.

[23]    The consideration of the interests of a child is not a relevant factor in this case as Mr Herrings son is over the age of 18 years.

[24]    The Direction also sets out a number of secondary considerations to be taken into account. I have carefully considered the material contained in paragraphs 2.17 to 2.24 inclusive and I am satisfied that the only considerations relevant in this matter are those I refer to in the following 4 paragraphs.

[25]    There is no evidence before me that there would be any disruption to the family or business of Mr Herring or his other ties to the Australian community if the visa is cancelled.

[26]    There is no evidence of any hardship which would be occasioned to Mr Herring’s son.

[27]    The evidence does not indicate that Mr Herring has been rehabilitated. The evidence of the incidents in which Mr Herring has been involved whilst in prison indicates otherwise. There is some evidence of recent good conduct in that there is no incident recorded against Mr Herring since January 2004, however, I do not consider this outweighs the numerous other factors which indicate that cancellation of the visa is appropriate.

[28]    The visa held by Mr Herring is a permanent visa. I do not consider this a matter of relevance.

The Tribunal went on to conclude that “the weight of all relevant considerations is overwhelmingly that the discretion to cancel Mr Herring’s visa should be exercised”.

4    Mr Herring now seeks an extension of time within which to appeal from that decision of the Tribunal. He also seeks an adjournment of the present hearing and an order restraining the Respondent Minister from deporting him from Australia.

5    His application assumes a degree of urgency by reason of the fact that he is due to be deported this afternoon at 4.10pm.

6    The application for an extension of time is to be refused. There is no identifiable “question of law” raised in Mr Herring’s Draft Notice of Appeal which has any prospects of success and there is no explanation – or no satisfactory explanation – for the delay of a period in excess of 6 years. The application for an adjournment is also refused as is the order restraining his deportation.

THE DRAFT NOTICE OF APPEAL & THE QUESTIONS TO BE RESOLVED

7    The Draft Notice of Appeal identifies the questions of law sought to be raised on appeal as follows:

Questions of law

2.    THE RIGHT TO NATURAL JUSTICE, AND EQUAL LEGAL REPRESENTATION WHICH DIAC USED (Clayton Utz). I WAS REFUSED FUNDED AID.

The Federal Ombudsman found unfairness in the case against and DIAC admitted to this in 2006 REPORT.

HOW EVIDENCE WAS OBTAINED AND PRESENTED BY DIAC AT AAT HEARING 2006

The Draft Notice of Appeal goes on to identify the grounds of the appeal as follows:

Grounds relied on

1.    The Ombudsman Report No 01/2006 which refer to my case* in total was unfairness, discriminatory action by DIMIA and Their (DIAC) report relied on at AAT hearing.

*Report deals with my case and ombudsman remarks are common to all those investigated in this report of 2006.

Given that Mr Herring is appearing on his own behalf and without legal representation, no overly technical approach should be adopted in respect to the manner in which he has sought to express the “questions of law”. But a number of matters in respect to the manner in which the Draft Notice of Appeal is expressed warrant some attention.

8    First, the manner in which the questions or questions are set forth in the Draft Notice of Appeal fail to comply with r 33.12(2) of the Federal Court Rules 2011 (Cth) and, in particular, r  33.12(2)(b). Rule 33.12(2)(b) requires a statement of “the precise question or questions of law to be raised on the appeal”.

9    Second, the draft “Question” seems more directed to an alleged denial of natural justice and “equal legal representation” before the Department than before the Tribunal.

10    Third, some reliance is obviously sought to be placed by Mr Herring upon the Ombudsman’s Report to which he refers in his proposed “Grounds”. That is a reference to a report of the Commonwealth Ombudsman published in February 2006: Administration of S 501 of the Migration Act 1958 As It Applies To Long-Term Residents (Report No 01/2006). That was a report which was obviously not available as at the date the Minister’s delegate made his decision in October 2005 and was not a report which was placed before the Tribunal when it conducted its hearing in March 2006.

11    The importance attributed to that Report in the present proceedings by Mr Herring warrants, perhaps, greater attention now being given to it.

THE OMBUDSMAN’S REPORT

12    The Introduction to that Report sets forth as follows the background to the investigation carried out by the Ombudsman on his own motion pursuant to s 5(1)(b) of the Ombudsman Act 1976 (Cth):

Several serious complaints have been made to the Ombudsman in the last few years about the adequacy of administration by the Department of Immigration and Multicultural Affairs (DIMA) of s 501 of the Migration Act 1958. Under this section of the Act, non-citizens who, because of their criminal record, do not satisfy the Minister responsible for immigration matters that they are of good character can be removed from the country. The complaints concerned the application of s 501 to long-term permanent residents of Australia.

The desirability of protecting the Australian community from non-citizens who have committed serious crimes, and are likely to reoffend, is not questioned. However, the permanent residents affected by the removal decisions under examination in this investigation have been here so long that they, and the communities they live in, see them as Australians. All have lived in Australia for more than 10 years, often much longer. They came as babies or children and have spent the bulk of their formative years, and all their adult years, in Australia. They have served, or are serving, the correctional sentence imposed after conviction for their criminal activities.

The Report went on to state that it “was not intended to be a comprehensive analysis of the operation of s 501”.

13    One concern of the Ombudsman was a perceived lack of fairness or consistency in the manner in which s 501 was applied. The Report thus stated in part as follows:

Ombudsman Opinion

3.9    Lack of consistency in the process for identifying permanent residents who may be liable for visa cancellation raises fundamental concerns about fairness. Clear guidance is required on how such people are to be identified. In some instances it appears identification may have been simply a matter of bad luck.

3.10    While the system of subclasses of visa is undoubtedly complex, it is reasonable to expect the Department, as architect of the system, would be in the best position to determine the class of visa held by an individual. Failure to give this basic matter due attention is unsettling in view of the grave consequences of a cancellation decision. A much higher standard of quality assurance would be expected in routine administrative matters. It is essential where a visa holder’s future is being decided.

The lack of consistency and the consequences upon persons whose visas were cancelled pursuant to s 501 was a primary concern of the Ombudsman. Also of concern to the Ombudsman was the “quality” of the assessments undertaken by the Department. The Report on this matter thus set forth the following “Opinion”:

3.39    I am concerned about the poor quality and lack of balance in assessments of primary considerations in almost all the Issue Papers examined. There are significant gaps in relevant information, and inaccuracies in the information that is provided. These deficiencies in the primary decision making tool could seriously mislead the Minister or s 501 delegate on such key issues as the seriousness of a crime, or the likelihood of recidivism. In my view, inadequate attention has been given to the compassionate expectation the Australian community would have that long-term residents deserve full consideration of the impact of cancellation on their lives and the lives of their families. The implications for fair and reasonable decision-making are profound.

14    In order to address his concerns, the Report set forth a number of recommendations. One of the recommendations was the following:

Recommendation 8:

That DIMA review:

•    the specific cases of cancellation under s 501 considered in the course of this investigation (details of case studies provided separately to DIMA)

•    all other cases where the visa of the long-term permanent resident has been cancelled under s 501 and he or she is still in immigration detention or awaiting removal from Australia, and

•    advise the Ombudsman

o    in relation to any cases where the long-term permanent resident arrived in Australia before 1984, whether the person held an absorbed person visa. If it appears the long-term permanent resident may have held such a visa, what action the Department intends to take, and

o    in relation to all cases, whether procedural fairness has been accorded; the processing of the cancellation was consistent with the recommendation in this report; how long he or she has been in detention; and what steps have been taken towards removal from Australia.

The review the subject of this recommendation in respect to Mr Herring was thereafter undertaken. He was advised in February 2008 that the Minister had “decided not to intervene in his case and removal proceedings will resume as soon as he is released from custody”.

THE REFUSAL OF AN EXTENSION OF TIME

15    There are a number of reasons for reaching the conclusion that Mr Herring’s request for an extension of time in which to appeal from the 2006 decision of the Tribunal should be refused.

16    First, any appeal from a decision of the Tribunal is confined to a “question of law”: Administrative Appeals Tribunal Act 1975 (Cth) s 44(1). It is the “question of law” which is the subject-matter of the appeal. In Brown v Repatriation Commission (1985) 7 FCR 302 at 304 Bowen CJ, Fisher and Lockhart JJ thus observed:

The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it.

See: Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10 at [38]-[39], 114 ALD 8 at 19 per Marshall, Tracey and Foster JJ.

17    Even if full recognition is given to the fact that Mr Herring is unrepresented, it is not considered that any “question of law” could be framed which would have any real prospects of success.

18    To the extent that Mr Herring seeks to rely upon an alleged denial of natural justice, any procedural unfairness that occurred in the initial decision-making processes within the Department assumes little (if any) present relevance. Mr Herring exercised his right of review to the Administrative Appeals Tribunal and any former denial of procedural unfairness was thereby most probably “cured”: cf. Twist v Council of the Municipality of Randwick (1976) 136 CLR 106 at 116. Mason J (as his Honour then was) there observed:

… The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have “cured” a defect in natural justice or fairness which occurred at first instance. Certainly this view has been taken in a number of cases — notably by the Privy Council in De Verteuil v. Knaggs [1918] A.C. 557; Pillai v. Singapore City Council [1968] 1 W.L.R. 1278 at 1286; and by the Supreme Court of Canada in Re Clark and Ontario Securities Commission (1966) 56 D.L.R. (2d) 585 and King v University of Saskatchewan (1969) 6 D.L.R. (3d) 120; cf Denton v. Auckland City [1969] N.Z.L.R. 256 and Leary v. National Union of Vehicle Builders [1971] Ch. 34, where the contrary view was taken. In this conflict of authority my preference is for the approach taken by the Privy Council and the Supreme Court of Canada: first, because the party affected has elected to treat the administrative decision as a valid, though erroneous decision, by appealing from it, in preference to asserting his right to a proper performance by the authority of its duty at first instance; and secondly, because in some cases the court will be compelled to take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt despatch of public business and balance that interest against the countervailing interest of the individual in securing a fair hearing — in appropriate cases that balance will be achieved if the individual secures a fair hearing on his appeal.

One of the principal purposes in the establishment of that Tribunal, it will be recalled, was to provide an independent means whereby specified administrative decision could be subject to review.

19    And there is no basis for concluding that Mr Herring was either denied “natural justice” before the Tribunal or denied a reasonable opportunity to present his case as guaranteed by s 39 of the Administrative Appeals Tribunal Act. Section 39(1) provides as follows:

Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

The obligation to ensure that every party “is given a reasonable opportunity to present” his case, it should be recalled, does not mean that the Tribunal has to ensure that a party takes the “best advantage” of that opportunity: Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J. Deane J (with whom Fisher J agreed) there observed that “neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled”. Applied in: De Simone v Federal Commissioner of Taxation [2009] FCAFC 181 at [15], 51 AAR 161 at 167 per Sundberg, Stone and Edmonds JJ; Kenso Marketing (M) SDN BHD v Chief Executive Officer of Customs [2011] FCAFC 26 at [45] per Keane CJ, Downes and Gordon JJ; Caporale v Commissioner of Taxation [2012] FCA 86 at [45], 57 AAR 1 at 10 per Robertson J; Kolya v Tax Practitioners Board [2012] FCA 215 at [48].

20    Mr Herring had every opportunity to contest before the Tribunal the factual basis upon which it was proceeding. There is no basis for concluding that he did not avail himself of the “reasonable opportunity” to present his case for review by the Tribunal.

21    To the extent that Mr Herring seeks to rely upon the lack of legal representation either at that stage when the Minister’s delegate was considering his case or at the later stage when he was appearing before the Tribunal, the argument has no merit. The rules of procedural fairness do not require that such assistance be provided in proceedings before the Tribunal: Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265 at [28]-[36], 101 FCR 20 at 27-29 per Sackville, Marshall and Lehane JJ. See also: Daw v Minister for Immigration & Citizenship [2012] FCA 705 at [25] per Edmonds J. (Affirmed in: Daw v Minister for Immigration and Citizenship [2012] FCAFC 123). Nor does Dietrich v The Queen (1992) 177 CLR 292 apply to Tribunal proceedings: cf. Commissioner of Taxation v La Rosa [2002] FCA 1036 at [120], 196 ALR 139 at 161 per R D Nicholson J.

22    Whatever criticism may have been directed to the decision-making processes of the delegate of the Minister, no criticism can be – or has been – directed at the manner in which the Tribunal proceeded. And it is the Tribunal’s decision, and not the delegate’s decision, which is the subject of the proposed appeal. However the “question of law” may have been expressed, it is concluded that any such question has no current prospects of success.

23    There is no substance in the submission made by Mr Herring that he was denied procedural fairness by reason of the Tribunal taking into account the records available as to his criminal convictions. The certificate of his conviction in respect to the murder of his wife is a matter of public record. And the record of his convictions, including convictions recorded in the United Kingdom, was obtained by the New South Wales Police Service. There is no basis for concluding that that record includes information illegally or improperly obtained. Moreover, the challenge made by Mr Herring to those records was more directed to an assertion that criminal records in the United Kingdom are “expunged” or the slate “wiped clean” after a period of 10 years; the fact of the convictions being recorded, however, was not disputed.

24    The second reason for refusing an extension of time within which to appeal is that there is either no – or no satisfactory explanation – for the delay in seeking to appeal.

25    The extension of time sought is for a period in excess of six years. A comparable extension of time was refused in Gabor v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 706. Conversely, an extension of time of little over a week was also refused in Franich v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 1362. But it is not the shortness or the length of the extension of time which is determinative. That is but one of the considerations to be taken into account: cf. Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. The particular facts and circumstances of each individual case must be considered.

26    Where, however, no explanation is provided for the delay and where there is no clearly identified “question of law”, an extension of time in the present proceeding is considered to be unwarranted.

27    In exercising the discretion to refuse to extend time in which to appeal, separate consideration has been given to the Ombudsman’s report. Consideration has been given to whether the investigation undertaken by the Ombudsman could explain, at least in part, the delay in seeking the extension of time or could give some insight into the merits of the claims he sought to advance before the Tribunal. But that Report provides no support for Mr Herring’s present application. The facts relevant to his application before the Tribunal were fully explored and the Report provides no further insight. Moreover, the review the subject of Recommendation 8 was in fact thereafter undertaken by the Department. Mr Herring was advised in February 2008 that the Minister had “decided not to intervene in his case and removal proceedings will resume as soon as he is released from custody”. Even if it be the case that Mr Herring delayed a decision to challenge the decision of the Tribunal until after he knew the fate of the subsequent Departmental review, no explanation has been forthcoming as to why he did not seek to appeal soon after February 2008. Whatever reliance may previously have been placed upon the grant of the Bridging Visa in May 2007, he was unequivocally advised in February 2008 that “removal proceedings will resume as soon as he [was] released from custody”.

THE REFUSAL OF AN ADJOURNMENT

28    The present Application first came before the Court on Monday 3 September 2012.

29    An application was then foreshadowed by the Respondent Minister for an expedited hearing.

30    Mr Herring applied for an adjournment on 3 September and again this morning. He then maintained that:

    there was an outstanding application for legal assistance; and

    he was scheduled to undergo surgery tomorrow.

On 3 September 2012 Mr Herring also sought the production of all documents relied upon by the Respondent Minister in the proceeding before the Tribunal. Subject to one document for which a claim for public interest immunity was made, Junior Counsel for the Respondent Minister had all such documents available this morning.

31    If there was any prospect that there may have remained outstanding a “question of law” which could be raised in respect to the decision of the Tribunal, an adjournment may well have been granted. This Court should exercise considerable caution before shutting a party out from litigating any claim which has any prospects of success and should exercise great caution before precluding a litigant from obtaining legal advice in respect to whether he has any claim which has any such prospects.

32    But there were no such prospects. The factual basis upon which the Tribunal proceeded fell into three broadly defined categories, namely:

    the facts as set forth by Mr Herring in his initial application to the Department ([2006] AATA 319 at [18]);

    the facts arising from his criminal record ([2006] AATA 319 at [18]-[22]); and

    the facts relevant to what may loosely be described as his ties to Australia ([2006] AATA 319 at [23]-[28]).

This factual basis was largely not put in issue. It would be difficult to identify any error in the account of the facts and even more difficult to identify any “question of law” which could question the basis upon which the Tribunal proceeded. Although Mr Herring questions the manner in which “evidence was obtained and presented by DIAC at AAT hearing”, no such questioning would undermine the factual basis upon which the Tribunal proceeded. After making its findings of fact, it was thereafter a matter for the exercise of the discretion by the Tribunal based upon those facts. No error in the exercise of that discretion is apparent.

33    Mr Herring this morning added further grounds upon which he sought an adjournment, namely:

    an outstanding application apparently made to the Respondent Minister for his intervention; and

    an outstanding challenge to the conviction for murder.

The surgery scheduled for tomorrow will now not take place. In lieu, Mr Herring is to attend in early October 2012 for assessment. Neither of these additional grounds, it is respectfully considered, warrants an adjournment.

34    It is unnecessary to resolve a contention that Mr Herring has deliberately refrained from taking medication for the very purpose of exacerbating his medical condition. His medical condition does not preclude him from travelling and arrangements have, in any event, been made for a “post removal medical follow up” upon his arrival in the United Kingdom.

35    The application for the adjournment is refused. An adjournment, it is concluded, would not place Mr Herring in any better position to better formulate either the “questions of law” to be raised on appeal or to better present his current application. Although an adjournment could possibly have provided further time in which to explain his delay in seeking an extension of time, the reasons for his delay were fully explored during the course of the hearing this morning.

CONCLUSIONS

36    The Application for an extension of time within which to appeal the decision of the Tribunal published in April 2006 is refused. No “question of law” has been identified in the Draft Notice of Appeal and none is otherwise discernible. Nor has the delay in making the present application some 6 years after the Tribunal published its reasons for decision been satisfactorily explained.

37    The inescapable inference is that Mr Herring has now sought an extension of time simply as a last attempt to prolong his deportation from Australia. Whether that is so or not, perhaps, does not matter. Any appeal from the decision of the Tribunal, even had it been brought within time, has no prospects of success.

38    There is considered to be no basis upon which the Respondent Minister should be restrained from deporting Mr Herring this afternoon – should he wish to do so.

39    The Application is to be dismissed with costs.

40    After the hearing of the appeal, and the delivery of these reasons, a difficulty arose. Those responsible for the security of Mr Herring were unwilling to allow him to attend upon the registry of the High Court with a view to him there making an application to challenge the orders now made. Their instructions were to take Mr Herring directly to the airport. If necessary, it was foreshadowed that an order would be made to permit his attendance at that Registry. It is understood that that difficulty has now been resolved.

THE ORDERS OF THE COURT ARE:

1.    The application for an extension of time is refused.

2.    The Applicant is to pay the costs of the First Respondent.

Associate:

Dated:    5 September 2012