FEDERAL COURT OF AUSTRALIA

Duwai v Minister for Immigration and Border Protection [2014] FCA 1141

THE COURT ORDERS THAT:

1.    The application for an extension of time 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

Introduction

1    This is an application for an extension of time. It appears that the extension of time is sought in order to bring an appeal to the Court from the second respondent (“Tribunal”) under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). However, this Court has no jurisdiction under s 44(1) in relation to the Tribunal’s decision: s 483 Migration Act 1958 (Cth) (“Act”). For that reason, with the concurrence of the first respondent (“Minister”), I will treat the application as an application under s 477A of the Act for an extension of time within which to bring proceedings under s 476A(1)(b) of the Act: see FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1 at [3] per French CJ and Gageler J; at [24] per Hayne J; and at [49] per Crennan and Bell JJ.

2    Section 477A relevantly provides:

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

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

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

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

3    The date of the “migration decision” in this case was the date of the Tribunal’s written decision, namely, 24 May 2013: ss 477A(3), 477(3)(a). Thus, the period within which any application for review was to be made expired on 28 June 2013. This application was more than one year and one month out of time.

4    It may be accepted that the condition contained in s 477A(2)(a) has been satisfied. That means that the issue for determination is whether the Court is satisfied that an extension of time is necessary in the interests of the administration of justice.

Relevant Considerations

5    The principles to be applied in determining the issue are straightforward. Murphy J summarised them as follows in MZYYO v Minister for Immigration and Citizenship (2013) 214 FCR 68 at 73 [30]:

The authorities set out various factors that may inform the discretion to extend a time limit including the acceptability of any explanation for the delay in filing the application, the length of the delay, the existence of any prejudice to the other party arising from delay, the substantial merits of the application, and consideration of fairness as between the applicant and other persons in a like position: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J, and the authorities there cited.

6    The relevant considerations in this matter are the length of the delay, the explanation for that delay, and the substantive merits of the application.

Delay and explanation

7    As noted in [3] above, the delay in this case is considerable. The applicant asserts that he was not aware that there were only 35 days within which to bring an application for judicial review. That is difficult to accept. The applicant was able to bring a timely application for review of the cancellation decision before the Tribunal. In any event, even if the applicant were not aware that the time limit was 35 days, he does not say that he was unaware that there was a time limit and does not say that he made any effort to find out what that limit was: see SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33]. Nor does he say when and how he found out there was a time limit. These matters weigh heavily against the grant of an extension of time.

8    Before turning to the substantive merits of the application, it is relevant to set out a brief summary of the relevant facts.

Relevant facts and Tribunal’s decision

9    The applicant is a citizen of Fiji who first arrived in Australia on 27 April 1983 when he was 11 years old. He obtained permanent residence on 25 September 1989 and, as at 25 February 2013, held at Class BF Transitional (Permanent) visa. The applicant had, during his time in Australia, been convicted of numerous criminal offences and, as a result, had spent a large number of years in prison. On 25 February 2013, a delegate of the Minister decided to cancel his visa under s 501(2) of the Act. The applicant applied to the Tribunal for review of that decision. The Tribunal conducted a hearing of the matter on 9 May 2013 and made its decision on 24 May 2013.

10    The applicant does not take issue with any of the reasons for the Tribunal’s decision. For that reason, it is sufficient to describe them very briefly. First, the Tribunal was satisfied that the applicant failed the character test in s 501(6) of the Act by reason of the length of his prison sentences. Secondly, the Tribunal considered the matters referred to as primary considerations in a direction made by the Minister pursuant to s 499 of the Act. On doing so, the Tribunal had regard to the fact that the applicant had committed over 20 serious crimes involving threats of violence to vulnerable people and that, in light of the applicant’s lack of insight into his drug problems and criminality. It found that there was a real risk of re-offending and that the type of offences likely to be committed carry a significant danger of severe physical and psychological damage to community members. It concluded that the protection of the public outweighed other primary considerations including the applicant’s ties arising from 30 years in Australia and the best interests of his son. For those reasons, it affirmed the decision under review.

Substantive merits of the application

11    The first ground of the proposed application is that the Tribunal’s decision was unconstitutional and beyond power. The basis for this ground appears to be that, in circumstances where the applicant had been in Australia for 30 years and is “an Australian”, the decision to cancel the applicant’s visa was a denial of procedural fairness and not done in just terms.

12    There appears to be some confusion in this ground. First, the reference to “just terms” in conjunction with the claim of unconstitutionality appears to be a reference to the protection afforded by the limitation on the power of the legislature to acquire property found in s 51(xxxi). Regardless of the breadth of the term “property” in that placitum (see Wurridjal v The Commonwealth (2009) 237 CLR 309 at 359–260 [87]–[89] per French CJ and cases there cited), a visa cannot fall within the meaning of that term. Secondly, and more importantly, at issue here is not the exercise of the legislative power of the Commonwealth, but the executive power. Thus, the Tribunal’s decision itself cannot be criticised as being beyond the power granted by s 51(xxxi). Thirdly, and in any event, it appears that what the applicant really means is that the decision was not on “just terms” because it was procedurally unfair. Understood in those terms, the ground does not raise any constitutional issue.

13    However, so understood, the ground is not made out simply because there is no evidence of unfairness. The only thing that can be established is that the applicant had a hearing before the Tribunal. There being nothing to suggest that the hearing was an inadequate opportunity for the applicant to present his case and to meet the case against him, the ground has no prospects of success.

14    The second ground is that Nystrom was wrongly decided and should be revisited. The case referred to is Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, a decision of the High Court. As such, the decision is binding on this Court and there are no prospects of the ground succeeding.

15    The third ground is that s 501 of the Act is inconsistent with s 201 and other provisions of the Act and so unconstitutional and invalid. This argument was rejected by the High Court in Nystrom and thus has no prospects of success in this Court.

16    The fourth ground is that the application ought not to be punished twice for the offences committed by him in Australia. It is well-established that the cancellation of a visa is not punishment unless it can be established by evidence that the purpose of the decision-maker was to punish the visa holder: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 at [66]. There is no evidence here that the Tribunal intended any punishment of the applicant. Indeed, the reasons for its decision reveals that the most significant factor in its decision was the protection of the Australian community.

17    For those reasons, none of the grounds raises any arguable jurisdictional error.

Conclusion

18    There has been a significant delay in seeking judicial review of the Tribunal’s decision with no adequate explanation. None of the grounds raised has any merit. For those reasons, I am not satisfied that an extension of time is necessary in the interests of the administration of justice. The application must be dismissed with costs.

Associate:

Dated:    27 October 2014