FEDERAL COURT OF AUSTRALIA

BHFC v Minister for Immigration and Citizenship [2013] FCA 1049

THE COURT ORDERS THAT:

1.    The time within which the applicant may file and serve the application for judicial review be extended up to and including 7 May 2013.

2.    The application for judicial review be dismissed.

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 an extension of time within which to make an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 25 March 2013: BHFC v Minister for Immigration and Citizenship [2013] AATA 166. I heard the application for an extension of time and the arguments on the appeal at the same time.

2        On 25 March 2013 the Tribunal affirmed a decision made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the applicant a Transitional (Permanent) (Class BF) visa. In making his decision the delegate was exercising the power in s 501 of the Migration Act 1958 (Cth) (“the Act”) and he decided to refuse the visa sought by the applicant on the ground that the applicant did not pass the character test referred to in that section. The Tribunal’s power to review the delegate’s decision is contained in s 500 of the Act.

3        By reason of s 483 of the Act, s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) does not apply to the Tribunal’s decision because the Tribunal’s decision is a privative clause decision or a purported privative cause decision (see ss 5 and 5E of the Act). Nevertheless, the applicant is able to seek judicial review of the Tribunal’s decision and this Court has jurisdiction to consider the applicant’s application for judicial review by reason of s 476A(1)(b) of the Act.

4        There is a time limit of 35 days from the date of the Tribunal’s decision in the case of applications within s 476A(1)(b) (see s 477A). The applicant made his application for judicial review on 7 May 2013 and that was beyond the prescribed time limit by approximately eight days. The Act provides that the Court may grant an extension of time (see s 477A(2)). The applicant said that he prepared what he considered to be the correct documents and sent them to the Registry. He was advised by the Registry that the documents were not the correct documents, but it took some time for that advice to be received by him and in turn, it took some time for him to prepare the correct documents and file them in the Registry.

5        I will grant an extension of time. The delay is relatively slight and there is no challenge to the applicant’s explanation for the delay. In fact, the first respondent, the Minister for Immigration and Citizenship, neither opposed nor consented to the application. However, I would dismiss the applicant’s application for judicial review.

6        The Tribunal filed a submitting appearance, and did not take part in the application.

THE TRIBUNAL’S REASONS

7        In this section I will set out the major conclusions of the Tribunal. I will refer to the Tribunal’s reasons in more detail when considering the applicant’s challenges to those reasons. Where I refer to a paragraph in the Tribunal’s reasons as distinct from a paragraph in these reasons, the paragraph number will appear in bold.

8        The Tribunal referred to s 501 of the Act, and in particular, subsection (1), paragraphs (a) and (c) of subsection (6) and subsection (7). The Tribunal noted the provisions of s 499 and that the Minister had exercised his powers under that section to make “Direction No. 55 – Visa refusal and cancellation under s 501” (“the Direction”) on 25 July 2012. The Tribunal referred to the preamble in clause 6 and the objectives in clause 6.1, the general guidance in clause 6.2, and the principles in clause 6.3. The Tribunal referred to Section 2 which contains principles relevant to the exercise of the discretion and the difference between a person who holds a visa and an applicant for a visa. The Tribunal referred to the fact that the Direction contains primary considerations and other considerations. In the case of applicants for a visa, those primary considerations and other considerations appear in Part B. Part B was the relevant part for the purposes of the applicant’s application.

9        The applicant was born in Iran and is aged 44 years. When the applicant was six years old he was sent to an American boarding school in India for two years, and learned to speak English there. He returned to Iran and remained there for about a year. At about this time, the Iranian revolution occurred, and the applicant and his parents fled to Europe and later went to the United States of America. He arrived in the United States of America in 1980 and his family were granted refugee status. The applicant’s parents separated and he continued to live with his mother. He completed his schooling in California. He obtained work in his father’s business. The applicant was charged with a number of offences in the United States.

10        The Tribunal accepted that in 1988 the applicant was involved in a motor vehicle accident in the United States in which he suffered a serious head injury. The applicant claimed that his head injury had ongoing effects in terms of his short term memory and his personality and he claimed that he was more extroverted after the accident and also more impulsive. The Tribunal referred to medical reports before it and found that the reports did not provide evidence of any clinically diagnosable condition arising from his head injury that could explain or justify the applicant’s repeated offending.

11        The applicant arrived in Australia on 3 October 1991 on a Tourist (Sub-class 664) visa. On 30 December 1991 he lodged an application for a Special Needs Relative visa in relation to an aunt who was living in Melbourne. That application was refused in October 1992. By this stage, the applicant’s permit to re-enter the United States had expired and he was placed in the Villawood Detention Centre and a deportation order was made. That order was revoked in August 1993 when, as a result of an application for a Domestic Protection Temporary Entry permit lodged in June 1993, he was recognised as a refugee.

12        In May 1994 the applicant lodged an application for a Protection (Permanent) Entry Permit (817) visa. He was granted a Bridging C (Class WC) visa in association with his application for a Protection Entry Permit. Legislative changes in 1994 had the result that the applicant’s application was, on 1 September 1994, converted to an application for a Transitional (Permanent) (Class BF) visa.

13        The applicant gave evidence before the Tribunal that he had submitted to the required medical examination after lodging his application for a Protection Entry Permit visa. When he heard nothing further he went back to the Department’s Adelaide office in February 1995 to inquire about his application and was told that the file had been referred to Melbourne. The applicant said that he heard nothing further until October 2001 when he was interviewed by an officer of the Department, and when reference was made to his criminal record.

14        In July 2003 an International Treaties Obligations Assessment was undertaken in relation to the applicant, and the assessor concluded that Australia’s non-refoulement obligations applied in the applicant’s case. The matters the assessor took into account about the applicant and members of his family are referred to in the Tribunal’s reasons (at [19]) and, as those matters may raise matters of some sensitivity, I will not repeat them.

15        On 10 January 2008, a departmental officer prepared a minute for the purpose of a delegate considering refusal of the applicant’s outstanding visa application on character grounds under s 501(1) of the Act. The delegate decided not to refuse the application, but a warning letter was sent to the applicant advising him of the operation of s 501 of the Act and that his Bridging C (Class WC) visa would continue to provide him with permission to remain in Australia. The letter, which was dated 16 January 2008, also contained the following passage:

The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in the consideration of the cancellation of your visa or refusal of your application under section  501 of the Act. I note that the consequences of visa cancellation under section  501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.

16        The Tribunal did not accept the applicant’s evidence that he interpreted the letter as a warning that his visa application would not be refused if the level of offending (by which he meant the nature of the crimes he committed) did not escalate. The Tribunal found that the applicant was given an appropriate warning of the consequences of any re-offending.

17        On 21 August 2009 the applicant was advised that his application for a protection visa was refused on the grounds that he had not provided a Form 80 containing personal particulars for character assessment, and criterion 4002 could not be assessed with the information required by that form. The applicant applied to the Refugee Review Tribunal for review of that decision, and that Tribunal set aside the Department’s decision to refuse the visa application and remitted it for reconsideration on 18 December 2009. The Department subsequently made a further assessment of the applicant’s character, and on 7 January 2013, a delegate of the Minister made the decision that was the subject of the review application before the Tribunal. As a result of that decision, the applicant’s Bridging C (Class WC) visa was cancelled by operation of law.

18        The Tribunal found that since arriving in Australia, the applicant has recorded almost 200 convictions, with his first conviction occurring approximately nine months after his arrival. The list of his convictions was contained in Exhibit R1. The Tribunal noted that of the period of about 22 years that the applicant has lived in Australia, he has been sentenced to approximately 15 years in prison.

19        The convictions which included sentences of imprisonment were as follows:

20        At this point, I should mention that I had some involvement in one or two matters concerning the applicant while I was a judge of the Supreme Court of South Australia (see, for example, pages 203 – 204 of the Court Book which deals with an application for leave to appeal in private). I raised this involvement with the parties. The respondent did not object to me sitting. The applicant said that he would leave the decision to me. In view of the issues in this proceeding, I did not think that there was any basis upon which I should disqualify myself from hearing this application.

21        The Tribunal then turned to consider the application of the primary and other considerations in Part B of the Direction to the facts of the applicant’s case.

22        The Tribunal first considered the matters in the Direction which are relevant to the protection of the Australian community from criminal or other serious conduct. It concluded that this consideration weighed heavily in favour of refusing the visa.

23        The Tribunal noted that the second primary consideration was the best interests of minor children in Australia and said that as the applicant had no children this consideration was not relevant.

24        The third primary consideration was whether Australia had international non-refoulement obligations to the person. The Tribunal noted the applicant’s evidence of his concerns about being returned to Iran and noted that the respondent accepted that non-refoulement obligations applied in the applicant’s case. The Tribunal accepted the applicant’s evidence as to his concerns and found that Australia’s non-refoulement obligations applied. The Tribunal said that those obligations had to be considered under the Direction and “should be weighed carefully against the seriousness of the criminal offending or other serious conduct in deciding whether or not the visa should be refused” (at [41]).

25        The Tribunal noted that the relevant provision of the Direction concerning the existence of a non-refoulement obligation did not preclude the refusal of a person’s visa, “because Australia will not necessarily remove a person, as a consequence of refusing to grant them a visa, to the country in respect of which the non-refoulement obligation exists” (at [42]).

26        The Tribunal referred to the decision in MZYYO v Minister for Immigration and Citizenship [2013] FCA 49 and referred to three possibilities or options as they were described by the Tribunal. The first possibility was that the applicant would be issued with a Bridging (Removal Pending) visa where the applicant was permitted to remain in Australia temporarily with access to certain Centrelink and Medicare benefits, on the basis that his position would be reconsidered in three years, taking into account his behaviour and compliance with Australian laws over that period. The second possibility was that the applicant would be deported to a third country (other than Iran), and the third possibility was that he would be retained in immigration detention. The Tribunal did not consider the second possibility to be realistic and said that it was unable to determine on the evidence which of the remaining two possibilities was more likely to come to fruition. The Tribunal said (at [45]):

Of course each of the three options involves very serious consequences to the applicant. However, it is clear that as a matter of law the Minister would be unable to deport the applicant to Iran, or to any other country if that would involve infringing Australia’s non-refoulement obligation. It is also clear from MZYYO that a decision to refuse a protection visa on character grounds does not amount, in itself, to a decision to remove the applicant from Australia, because at any time prior to removal, it would be open to the Minister to exercise his power under s 195A of the Act to grant the applicant a visa of a particular class, if satisfied that it was in the public interest to do so.

27        The Tribunal concluded with respect to the third primary consideration, that it favoured the grant of a protection visa. The Tribunal concluded that nevertheless, it did not outweigh the seriousness of the long pattern of criminal offending by the applicant.

28        The Tribunal then turned to consider other matters. It found that the refusal of the applicant’s visa application would have virtually no impact on the members of his Australian family, nor on the Australian community, nor on any Australian business interests. The Tribunal considered the fact that the applicant had now spent most of his life in Australia. The Tribunal did not consider that time spent in Australia relevant to the discretion to refuse a visa, but went on to say, that in any event it would be relevant to take into account that “the applicant has been incarcerated for much of that time due to persistent criminal offending, and has not made a positive contribution to the Australian community or formed strong social or employment links with Australian permanent residents”.

29        Finally, the Tribunal referred to an argument by the applicant to the effect that if his application had been processed in a timely manner, then he would not have engaged in the extensive criminal conduct which had led to the recent refusal of his visa application. The Tribunal referred to the decision of the High Court in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 and said that it was appropriate for it to exercise its discretion after taking into account relevant evidence up to the date of its decision.

30        The Tribunal said that after taking into account the primary and other considerations, it had decided that the first primary consideration outweighed the other relevant considerations and for that reason the delegate’s decision should be affirmed.

ISSUES ON THE APPLICATION

31        The applicant must show jurisdictional error on the part of the Tribunal in order to succeed. His arguments fell into three broad categories.

32        First, the applicant submitted that his offending was not serious, or did not involve violence to the person, or was at the lower end of the scale. He submitted that the Tribunal overlooked this fact, or did not accord it sufficient weight. Secondly, the applicant submitted that there was inordinate delay by the first respondent in processing his application. He submitted that had there not been such delay, he would not have had a criminal record to be taken into account by the Minister or his delegate, or in the alternative, he would not have been in the position he was because he would have been an Australian citizen by 1997. Finally, the applicant submitted that the Tribunal made various errors of fact and he went through paragraphs of the Tribunal’s reasons seriatim and various documents in the book of documents and made submissions about them.

The nature of the offences

33        I reject this challenge to the Tribunal’s reasons. It was necessary for the Tribunal to understand the nature of the applicant’s offences. It did so and it set out the convictions which included sentences of imprisonment (at [24]). The Tribunal clearly understood the contents of the Direction and it understood that clause 11.1.1(1) a) referred to violent and/or sexual crimes as being viewed seriously. However, the Tribunal also noted that other offences may be considered serious. It found that the applicant’s offending should be regarded as serious in view of its regular and repeated occurrence (at [29]). That conclusion was open to it. The Tribunal understood that the applicant was contending that he had not engaged in serious or violent offending (at [30]). Nevertheless, the Tribunal found that the applicant’s conduct should be regarded as serious because of its finding that the applicant fell within s 501(6)(c) (see clause 11.1.1(1) d)) and because of the many custodial sentences imposed on the applicant by the courts.

34        In considering the risk of harm to the Australian community should the applicant commit further offences or engage in other serious conduct (clause 11.1.2(1)), the Tribunal noted a submission by the applicant in the following terms (at [33]):

As to this, the applicant contended that there was no risk of harm to individuals, and that he was not a threat to anyone, because his offending generally entailed theft from business premises where he expected that there would be cash. He said he had rationalised his conduct on the basis that no physical harm would be done to any person, the losses of the business would be covered by insurance, and the businesses could claim tax deductions for the resulting losses. In fact, certain of his offences did constitute violent offences, but the last conviction for such an offence was now some time ago, on 21 October 2003, and then a conviction without penalty was recorded. I also take into account that there is no evidence that the potential harm to the Australian community has been increasing.

35        The Tribunal rejected the submission noting that the entities potentially harmed included groups or institutions in the Australian community as well as individuals and finding that, in considering whether a risk of harm was unacceptable, one could have regard to the cost to, and effect on, the general community and the likelihood of re-offending. As to the second matter, the Tribunal found that the likelihood of re-offending was “strong”. The Tribunal referred to the applicant’s prospects of rehabilitation and concluded that it could have no confidence that the applicant would desist from future offending.

The delay in processing the application

36        The history of the applicant’s visa status is set out above (at [11] – [17]).

37        The Tribunal said it was unnecessary for it to determine whether there was an unusual delay in processing the visa application and, if so, the reasons for the delay. The Tribunal said that it was appropriate for it to consider events up to the date of its decision, particularly as it was considering whether, in the national interest, a non-citizen should be permitted to come into, and remain in, Australia. As I have said, the Tribunal referred to the decision of the High Court in Shi v Migration Agents Registration Authority.

38        I assume the reference to the national interest was made because it is referred to in the statement of the object of the Act in s 4. Shi v Migration Agents Registration Authority is authority for the proposition that, absent a requirement that the statutory question is to be answered by reference to a particular point in time, relevant supervening events are to be taken into account by the Tribunal (at 302 [49] per Kirby J; at 315-316 [101] per Hayne and Heydon JJ; at 319 [117] per Crennan J; at 328 [143] per Kiefel J). There is no indication in this case that the statutory question was to be answered by reference to a particular point in time and in those circumstances the Tribunal did not err in taking into account relevant events before its decision.

39        I reject this challenge to the Tribunal’s reasons.

Complaints about particular matters

40        The applicant addressed the various paragraphs in the Tribunal’s reasons and he addressed aspects of documents in the Court Book. His complaints were that the Tribunal had overlooked a matter or drawn the wrong conclusion or given insufficient weight to a matter in his favour.

41        I do not think the Tribunal overlooked any matter. For example, it did not overlook the applicant’s evidence that he submitted to the medical examination (see [18]) or his head injury (see [15] and [28]) or his letters of support (see [28]) or his proposal to complete the “Making Changes” course (see [35]) or the topic of the applicant’s prospects of rehabilitation more generally (see [35]). I mention in this context that insofar as the applicant asked me to receive further medical evidence, I decline to do so as there is no proper basis for the receipt of further evidence.

42        The applicant made a number of other points. He referred to his evidence about the reason he did not disclose to the Department his prior offending in the United States. The Tribunal rejected his evidence (at [31]) and there is nothing to suggest that it was not entitled to do so. The applicant contended that he was not convicted of theft in the Pahran Magistrates Court in 1992. Whether he was so convicted appears to have played no part in the Tribunal’s decision, and even if it had been relevant, I am not convinced the Tribunal would have erred in finding that he had been so convicted. The applicant referred to a previous case where two warnings had been given and to the fact that he was given only one warning. This does not assist the applicant because there is no legal requirement that two or more warnings be given. The applicant submitted that the level of tolerance of criminal convictions should be higher for long term non-citizens. The Tribunal squarely considered the weight to be placed on the period the applicant has spent in Australia (see [49]) and there was no jurisdictional error in its approach.

43        The applicant referred to the provisions of s 501 of the Act, Australia’s non-refoulement obligations and the effects on him of deportation to a third country. In my opinion, all of these matters were considered appropriately by the Tribunal, but even if that were not so, the matters identified by the applicant go to the weight accorded to the evidence and not jurisdictional error. The applicant referred to his ties with his relations in Australia. The Tribunal considered his evidence on this matter and rejected it (at [47]). The Tribunal’s approach in doing so did not involve jurisdictional error.

44        Finally, the applicant claimed at the conclusion of his oral submissions on 9 August 2013 that he asked to have a lawyer present for him at the Tribunal, but that he was told he was unable to have a lawyer present. On 2 October 2013 I called the application back on and made directions with a view to giving the applicant the opportunity to put forward evidence in support of this contention. Subsequently, I was advised that the applicant did not pursue this contention. Accordingly, there is no need for me to consider it any further.

CONCLUSIONS

45        For the above reasons, I would make the following orders:

1.    The time within which the applicant may file and serve the application for judicial review be extended up to and including 7 May 2013.

2.    The application for judicial review be dismissed.

Associate:

Dated:    16 October 2013