FEDERAL COURT OF AUSTRALIA

Tran v Minister for Immigration and Border Protection [2014] FCA 533

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    Vinh Luan Tran is a national of Vietnam. He arrived in Australia at the age of 11 on 7 October 1997. When he arrived he had a Class AH Subclass 101 Child (Migrant) visa. He was later granted a Class BB Subclass 155 (Five Year Resident Return) visa. Unfortunately, within three years of his arrival in Australia, Mr Tran embarked on an unbroken course of criminal conduct. This conduct resulted in numerous convictions and some periods of imprisonment. It also resulted in the cancellation of his visa on character grounds pursuant to s 501 of the Migration Act 1958 (Cth) (the Act). That cancellation occurred on 28 March 2012. It was subsequently affirmed on review by the Administrative Appeals Tribunal (Tribunal) on 26 June 2012.

2    Mr Tran now applies for an extension of time within which to lodge an application for review of the Tribunal’s decision. An extension of time is necessary because any application by Mr Tran for review of the Tribunal’s decision was required to be filed within 35 days of the date of the decision: s 477A of the Act. If Mr Tran wanted to apply for a review of the Tribunal’s decision, he was accordingly required to file his application by 31 July 2012. Mr Tran filed his application for an extension of time on 19 December 2013, almost 18 months out of time.

3    For the reasons that follow, Mr Tran’s application for an extension of time must be dismissed.

Relevant statutory provisions

4    Section 501 of the Act relevantly provides as follows:

(2)    The Minister may cancel a visa that has been granted to a person if:

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

(b)    …

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

(7)    For the purposes of the character test, a person has a substantial criminal record if:

    (a)    …

    (b)    …

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

5    Section 500(1)(b) of the Act provides that an application may be made to the Tribunal for review of a decision of a delegate of the Minister under s 501.

6    Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. A person or body must comply with such a direction: s 499(2A).

7    The Minister has given a direction under s 499 of the Act in relation to visa refusals and cancellations under s 501 of the Act. That direction, (“Direction [no.41] – Visa refusal and cancellation under s501”), was signed on 3 June 2009 and commenced operation on 15 June 2009 (the Direction).

8    Amongst other things, the Direction sets out a number of “primary considerations” that are to be considered in the exercise of the discretion to cancel a visa if the visa holder has not satisfied the decision maker that he or she passes the character test. The primary considerations are:

(a)    the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b)    whether the person was a minor when they began living in Australia;

(c)    the length of time that the person has been ordinarily a resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d)    relevant international obligations.

9    The direction also sets out a number of considerations which, although not primary, may be relevant to the exercise of the discretion and, if so, must be considered. They include the visa holder’s family and other ties to Australia; age and health; links to the country to which the visa holder would be removed; level of education; hardship likely to be suffered by the person and their immediate family if the person is removed; and whether the person has been formally warned that reoffending may result in visa cancellation. The direction provides that these considerations should generally be given less weight than the primary considerations.

10    Subsections 477A(1) and (2) of the Act relevantly provide as follows:

(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 days 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.

Factual background

11    Mr Tran was born in Cambodia. When he was young he was separated from his parents. His mother apparently travelled by boat to Australia and sought asylum. He was cared for in Cambodia initially by his aunt and then by his grandmother. His aunt migrated to Australia. He and his grandmother migrated to Vietnam. When he was about 11, his aunt returned to Vietnam and arranged for him to migrate to Australia. He arrived in Australia in October 1997.

12    When he migrated to Australia, it appears that Mr Tran was briefly reunited with his mother. He resided with his mother and aunt. Unfortunately, it seems that he had a difficult time both at home and school. He left home within about a year and spent most of his teenage years living on the streets or in various shelters. He began to use illicit drugs including heroin. Not surprisingly he did not complete his schooling. Instead, he began a course of criminal conduct that eventually resulted in his incarceration.

13    Mr Tran’s first offence was committed in, or shortly prior to, November 2000, about three years after his arrival in Australia. He pleaded guilty to the offence of maliciously destroying property and was placed on probation for 12 months. He was 14 years old. Less than a year later, he was convicted of several offences, including the supply of prohibited drugs, the theft of a motor vehicle and some other minor offences. As he was still a juvenile, the court imposed a 12 month control order.

14    Less than a year later, in July 2002, Mr Tran was again found guilty of supplying a prohibited drug and ordered to perform 100 hours community service. He was convicted of two fairly minor offences in 2003. Then, in February 2004, he was convicted of a series of offences involving shoplifting, larceny, possession of stolen goods and breach of a community service order. Further control orders were made by the Court.

15    Regrettably, Mr Tran’s criminal offending became more serious when he reached adulthood. In December 2004, he was imprisoned for three months for being in possession of stolen goods, maliciously damaging property and possession of prohibited drugs. Shortly after his release from custody he was convicted of some further relatively minor offences. However, by mid-2005 he was convicted and sentenced to 18 months in prison (with a non-parole period of nine months) for using an offensive weapon to prevent lawful detention and for the possession of stolen goods. The offensive weapon in question was a syringe. Mr Tran was found to have lunged at and threatened transit officers with a syringe. The officers had approached Mr Tran and told him that they were going to contact the police because they suspected he was in possession of stolen goods.

16    Shortly after his release from prison, and whilst he was on parole for the previous offence, Mr Tran committed a serious offence involving robbery with an offensive weapon. He robbed a man of poker machine winnings of $1,100 at knife point. For this offence he was sentenced to imprisonment for three years with a non-parole period of 18 months.

17    It was at this stage that Mr Tran came to the attention of the Minister’s department. In January 2006 and April 2007 a delegate of the Minster put Mr Tran on notice that consideration was being given to cancelling his visa because of his criminal conduct. Mr Tran responded to this notice by advising that he intended to change his lifestyle, that he had sought drug and alcohol counselling whilst in prison and that he was confident that he would not relapse again upon his release. Mr Tran’s assurances must have been persuasive, because in July 2007 Mr Tran was advised by the Minister’s delegate that his visa would not be cancelled. The delegate wrote that Mr Tran was to be given “one final chance to make something of his life.”

18    Regrettably, Mr Tran did not heed this warning or take the chance to turn around his life. In May 2008, he was convicted of possessing implements for entering or driving a motor vehicle and being armed with the intent to commit an indictable offence. He was sentenced to a further six months in prison and placed on a two year good behaviour bond. Worse still, in July 2009 he committed a serious offence involving aggravated break and enter with intent to commit a serious offence. Together with another man, Mr Tran forcibly entered a man’s apartment, threatened him with a knife and stole his money, mobile phone and car keys. The seriousness of this offence was reflected in the penalty imposed. When convicted of this offence in August 2010, Mr Tran was sentenced to imprisonment for five years with a three year non-parole period.

19    Whilst he was in prison for this offence, the Minister’s department sent Mr Tran a notice advising him of an intention to cancel his visa under s 501 of the Act. Mr Tran responded to this notice by letter. His aunt also sent a letter of support to the department. Despite these submissions, on 28 March 2012 a delegate of the Minister decided to cancel Mr Tran’s visa.

20    Mr Tran then applied to the Tribunal for a review of the delegate’s decision pursuant to s 500(1)(b) of the Act. The Tribunal conducted a hearing over two days in June 2012. Mr Tran was represented by counsel. He gave evidence on oath and evidence was led on his behalf from a psychologist employed by Corrective Services NSW. The evidence from the psychologist, Mr Hayes, related to Mr Tran’s participation in the Violent Offenders Therapeutic Program (VOTP) conducted by Corrective Services NSW. Mr Hayes was optimistic about Mr Tran’s prospects of rehabilitation. Other evidence was also led or tendered on Mr Tran’s behalf.

The decision and reasons of the Tribunal

21    Before the Tribunal there was no dispute that Mr Tran did not pass the character test. That was because he had been sentenced to a term of imprisonment of 12 months or more and therefore had a substantial criminal record: s 501(6)(a) and (7)(c) of the Act. The issue before the Tribunal was whether to exercise the discretion to cancel Mr Tran’s visa.

22    In its decision and reasons, the Tribunal gave detailed attention to each of the primary considerations identified in the Direction.

23    In relation to the protection of the Australian community, the Tribunal found that Mr Tran had been convicted of a number of serious and violent offences. The crimes had progressively become more serious and violent. There was a pattern of re-offending.

24    Critically, the Tribunal also found that there was a real risk that Mr Tran will go on to reoffend in the future. In so finding, the Tribunal gave detailed and careful attention to the evidence and submissions relied on by Mr Tran, including his completion of some rehabilitation courses whilst in custody, his participation in the VOTP, the optimistic opinion about Mr Tran’s prospects of rehabilitation given by Mr Hayes, the fact that Mr Tran had the continuing support of his aunt and the fact that he had secured post-release employment.

25    Against this, however, the Tribunal noted that Mr Tran had been involved in sustained criminal activity over an extended period of time. Neither repeated custodial sentences nor rehabilitation schemes had deterred him from reoffending in the past. The Tribunal was sceptical of Mr Tran’s claims that he was remorseful and had insight into his conduct. That scepticism was perhaps understandable given that Mr Tran had made similar claims in the past, in particular when previously warned about the prospect of his visa being cancelled in 2007. In relation to the VOTP, which Mr Tran had not at that stage completed, the Tribunal indicated that it was not confident that Mr Tran could be rehabilitated by an in-prison program alone, no matter how good the program was.

26    The Tribunal concluded that the risk that Mr Tran would reoffend in the future weighed heavily against him.

27    In relation to the other primary considerations, the Tribunal accepted the fact that Mr Tran was a minor when he began residing in Australia. This weighed in his favour. It noted that whilst Mr Tran had been in Australia for 15 years, he began offending within three years of his arrival and had spent about 40 per cent of his time in Australia in prison. These considerations did not assist him. There were no relevant international obligations that weighed in the balance.

28    The Tribunal also had regard to a number of other considerations. It found that Mr Tran had no business ties in Australia and that his only family ties were his aunt and mother. In that context, the Tribunal noted that on the evidence before it Mr Tran was no longer in contact with his mother. The Tribunal accepted that Mr Tran would suffer significant hardship if he were to return to Vietnam and that his aunt would suffer significant emotional hardship if that were to occur.

29    Ultimately the Tribunal concluded that the seriousness of the conduct engaged in by Mr Tran and the real risk of reoffending meant that Mr Tran posed an unacceptable risk to the Australian community. That factor outweighed all other considerations combined.

The application for an extension of time

30    The terms of s 477A(2) of the Act make it plain that an extension of time to apply for review of the Tribunal’s decision to affirm a visa cancellation under s 500 can only be exercised when the Court is satisfied that it is necessary in the interest of the administration of justice to make the order. It would be in the interest of the administration of justice to grant an extension of time where strict compliance with the time limit would work an injustice on the applicant. In order to determine whether requiring strict compliance with the time limit would work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties if an extension of time is granted or refused: Gallo v Dawson (1990) 93 ALR 479.

31    In the context of applications for extension of time to appeal, the considerations relevant to the exercise of the discretion have been said to include whether the Court is satisfied that there is an acceptable explanation for the delay, whether there would be no undue prejudice to the respondent if the Court were to grant leave, and whether there is merit in the substantive application: SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725 at [21]; SZNFR v Minister for Immigration and Citizenship [2009] FCA 851 at [12]; SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867 at [13]-[15]; Manna v Minister for Immigration and Citizenship [2013] FCA 400 (Manna) at [13]-[14]. These considerations would also be relevant to considering whether, in the context of s 477A(2), it is in the interest of the administration of justice to extend time to enable an application to be lodged seeking a review of a decision of the Tribunal to affirm the cancellation of a visa on character grounds.

Explanation for the delay

32    Mr Tran’s explanation for the delay in filing an application within the required time period, or indeed at any time earlier than 18 months after the Tribunal’s decision, is contained in his affidavit sworn on 17 February 2014. The truthfulness and accuracy of the explanation was not challenged by the Minister. The Minister challenged the adequacy and sufficiency of the explanation.

33    Mr Tran’s explanation for the delay was that when the Tribunal affirmed the decision to cancel his visa, he asked counsel who represented him before the Tribunal to advise him on the prospects of success if he applied to the Court for a review of the Tribunal’s decision. Counsel advised him that there was no error of law and, presumably, that therefore his prospects of success were low. He then went to the Prisoners Legal Service. There he received advice from a legal advisor that he would be in a better position to conduct research and obtain legal advice when in immigration detention after his release from prison. He was unable to obtain any other legal advice at the time because neither he nor his aunt was in a position to pay for private legal advice. As a result, Mr Tran did nothing further towards filing an application whilst he was in prison.

34    On his release from prison and upon his transfer to immigration detention in December 2012, Mr Tran applied for legal aid. That application was rejected because the prospects of successfully challenging the Tribunal’s decision were low. He then received legal advice that he could or should pursue other avenues potentially available to him under the Act. It appears that he also was advised to write to the Minister seeking his intervention. He apparently took both these steps, however both were unsuccessful. It was at this time that Mr Tran began to do his own research. He discovered the existence of the Direction and formed the view that the Tribunal had not correctly applied the Direction.

35    This explanation for the 18 month delay is neither adequate nor satisfactory. The fact that Mr Tran initially received legal advice that any application for review of the Tribunal’s decision would have limited prospects is not a sufficient explanation; all the more so when it would appear that this was sound advice. The lack of legal advice (or in this case, the lack of positive legal advice) is not alone a sufficient excuse for failure to lodge an appeal (or in this case an application for review) within time: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]; SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6]; Manna at [17].

36    Nor does the fact that Mr Tran chose, albeit on advice, to pursue other avenues available to him under the Act provide a satisfactory explanation for the delay: Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 at [29]; Sithamparapillai, Ex parte - Re MIMA [2004] HCATrans 364; Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279; Manna at [16]. Mr Tran made a conscious decision not to pursue a challenge to the Tribunal’s decision, albeit apparently based on advice he received concerning other avenues supposedly open to him. He ought not now be permitted to effectively resile from that decision.

37    As for Mr Tran’s own research and his discovery of the Direction, it would appear that he had the facilities to conduct such research from the time he was released from prison and went into immigration detention in December 2012. Yet he did nothing in terms of filing an application for another year. He has not sought to explain that delay.

38    The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran’s application for an extension of time.

Merits of the proposed review application

39    It is not easy to discern the grounds or basis for the proposed challenge to the Tribunal’s decision from the material filed or tendered by Mr Tran. Some of the grounds or arguments advanced by him seem to contend that the Minister’s delegate denied him procedural fairness. Even if this contention had any merit, and it does not appear that it does, this is a matter that has in any event been overtaken by the merits review conducted by the Tribunal.

40    Other grounds or arguments relied on by Mr Tran appear to do no more than challenge the merits of the Tribunal’s decision. He appears to submit, for example, that the Tribunal should have given more weight to the evidence of Mr Hayes. Likewise, he argues that the Tribunal should have given more weight to other positive evidence of his conduct and prospects of rehabilitation. These submissions have no merit. The Tribunal gave detailed consideration and considerable weight to Mr Hayes’ evidence. It also carefully considered all the evidence relating to Mr Tran’s conduct and the prospects of him rehabilitating himself. Not all of that evidence was positive. In any event, the weight to be given to particular evidence is a matter for the Tribunal and is not amenable to challenge in judicial review proceedings.

41    In his oral submissions at the hearing (and in a document handed up at the hearing) Mr Tran focused on two alleged errors made by the Tribunal.

42    First, he pointed to paragraph [59] of the Tribunal’s reasons where the Tribunal considered whether it would be preferable to delay making a decision until Mr Tran completed the VOTP at the end of 2012. The Tribunal ultimately concluded that delaying the decision was not an appropriate course. It was not satisfied that even a satisfactory completion of that course would eliminate the real risk that Mr Tran might reoffend. Mr Tran argues, in effect, that the Tribunal erred in not deciding to allow him to complete the VOTP before any decision to cancel his visa was made.

43    That argument has no merit. It was open to the Tribunal to decide the application on the material before it, despite the fact that Mr Tran had not at that stage completed the VOTP. The Tribunal heard and gave careful consideration to the evidence of Mr Hayes concerning Mr Tran’s participation in the VOTP, as well as other evidence concerning the prospects of rehabilitation. It is clear that the Tribunal formed the view, on the basis of all the evidence before it, that Mr Tran’s rehabilitation could not be assured, or that the risk to the Australian community arising from the prospect of reoffending would not be acceptably alleviated, even after Mr Tran’s completion of the VOTP. That was a finding open to the Tribunal based on the evidence before it.

44    It should also be noted that, by reason of s 500(6L) of the Act, it was not open to the Tribunal to defer making a decision until Mr Tran completed the VOTP.

45    The second specific point of attack on the Tribunal’s decision concerns the Tribunal’s finding at paragraph [50] of its reasons that Mr Tran was no longer in contact with his mother. Mr Tran does not dispute that at the time of the hearing before the Tribunal the evidence was that he was not in contact with his mother. He appears to contend, however, that the Tribunal should have done more to ascertain the whereabouts of his mother and take into account her attitude to the cancellation of his visa. This, he contended, would have been relevant to his ties to Australia and the emotional hardship his mother would suffer if he was returned to Vietnam.

46    This argument, however framed, would be doomed to fail. First, the evidence before the Tribunal was that Mr Tran was no longer in contact with his mother. Mr Tran did not contend otherwise. Second, there was no evidence that either Mr Tran or his aunt was able to contact Mr Tran’s mother, had tried to contact her, or wanted to contact her. Nor was it suggested that the Tribunal should contact her. There was nothing before the Tribunal to indicate what his mother’s attitude would be if located or contacted by the Tribunal or anyone else. It could not, in these circumstances, be suggested that the Tribunal was under any duty to inquire into the whereabouts or attitude of Mr Tran’s mother: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30]-[32].

47    Beyond these arguments advanced by Mr Tran, there is nothing to indicate that the Tribunal erred in any way in the conduct of its review. It carefully and conscientiously considered all the evidence, applied the Direction and weighed up all the relevant considerations as it was required to do. There is nothing to suggest that the exercise by the Tribunal of its discretion upon review miscarried in any way.

48    The absence of any apparent merit in Mr Tran’s proposed review of the Tribunal’s decision is another reason to refuse his application for an extension of time.

Disposition

49    Mr Tran has not satisfactorily explained the 18 month delay in filing his application. Nor has he demonstrated that he has an arguable case that the Tribunal erred in any way. His application for an extension of time within which to file an application for review of the Tribunal’s decision must be dismissed with costs.

Associate:

Dated:    30 May 2014