FEDERAL COURT OF AUSTRALIA

SQNR v Minister for Immigration and Border Protection [2016] FCA 925

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to appeal from the orders made by Justice Tracey on 10 October 2014 is refused.

2.    The interlocutory application filed by the applicant on 17 June 2016 is dismissed.

3.    The applicant pay the first respondent’s costs of the application as agreed or taxed.

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

REASONS FOR JUDGMENT

NORTH J:

introduction

1    On 6 June 2016, the applicant applied for an extension of time within which to appeal from orders made by Tracey J on 10 October 2014. His Honour dismissed an application for review of a decision of the Administrative Appeals Tribunal made on 15 January 2014. The Tribunal had affirmed a decision of the delegate of the Minister to cancel the applicant’s spouse visa under s 501(2) of the Migration Act 1958 (the Act).

background

2    The applicant is a citizen of Fiji. He first came to Australia on a visitor visa in January 1989. In May 1995, he returned to Fiji when a permanent visa was refused in March of that year. He then obtained a provisional spouse visa in 2007, and then a spouse visa in 2008. Apart from a short trip to Fiji, he has lived in Australia since then.

3    On 13 August 2012, the applicant was convicted in the County Court of Victoria of the offence of engaging in an indecent act with a child under 16 years old and a second offence of sexual penetration of a child under 16 years old. The offences were committed against the applicant’s 12 year old nephew over an 18 month period. On the first offence he was sentenced to imprisonment for two years and on the second offence to imprisonment for 18 months, 12 months of which was to be served concurrently. Thus, the total effective sentence was two and a half years imprisonment.A non-parole period of 15 months imprisonment was fixed.

4    On 18 October 2013, the applicant’s spouse visa was cancelled under s 501(2) of the Act, shortly before he was due for release on parole in November 2013.

5    On 10 February 2014, the applicant’s name appeared on the website of the Department of Immigration and Border Protection with over nine thousand other people held in immigration detention. That event gave rise to litigation by people affected in or about that time. In the applicant’s case, rather than appealing from the orders made by Tracey J in October 2014, he applied for a protection visa in part based upon the data breach event. That application was refused.

the application for an extension of time

6     The application for an extension of time from the orders made by Tracey J was commenced once the protection visa application and all appeals, including to the High Court of Australia, had been completed. Those events lie at the centre of the applicant’s explanation for the delay.

7    The applicant advanced three grounds of appeal before Tracey J. In this application for an extension of time, the applicant contended that his Honour erred in rejecting each of those grounds. The applicant filed two affidavits in support of his application, one affirmed on 2 June 2016 and the other affirmed on 19 July 2016. He also filed an outline of submissions dated 19 July 2016. The respondent filed an outline of submissions dated 26 July 2016.

8    The considerations generally relevant to an application to extend time to appeal are the length of the delay, the explanation for the delay, any prejudice to other parties and the merits of the application to be advanced on appeal. It is convenient, firstly, to consider this last factor by reference to the basis upon which Tracey J rejected the applicant’s application.

9    Before Tracey J, the applicant advanced three grounds of appeal. The first ground was that the Tribunal failed to have regard to particular information relating to the rehabilitation programs undertaken by the applicant and assessments made by Corrections Victoria of his risk of recidivism.

10    His Honour held that there were documents which the applicant said the Tribunal had not taken into account, but which, in truth, the Tribunal had taken into account. His Honour said there were other documents not specifically referred to by the Tribunal, but in those cases the Tribunal dealt with the subject matter of the documents. His Honour said, at [18]:

These complaints failed to distinguish between relevant considerations and particular pieces of evidence:  see, for example, Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 236 (Carr J); Nguyen v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1996) 68 FCR 463 at 472-3. The Tribunal was bound, by the direction, to give primary consideration to the protection of the Australian community from criminal or other serious conduct. In doing so it was required, among other things, to take into account the risk of the applicant reoffending and the mitigation of that risk (if any) achieved by way of rehabilitation. These were matters which the Tribunal clearly took into account when deciding to affirm the decision under review.

11    His Honour then dealt with the applicant’s complaint that the applicant’s inability to attend rehabilitation courses was the result of being transferred to immigration detention on completion of his prison term. His Honour, however, concluded that the Tribunal had given its reason for not relying on this factor in the applicant’s favour on the question of his chances of rehabilitation. His Honour said at [19]:

…The Tribunal also dealt (at [92]) with evidence given to it by the applicant that he would willingly have undertaken a six or nine month sex offenders programme had it been available to him.  Having heard this evidence, however, and observing the applicant over two days and having heard the evidence of other witnesses the Tribunal said that it was “satisfied that his subsequent expression of willingness to undertake treatment was self-serving and not a genuinely expressed belief of any need for treatment …”.

There was no error in his Honour’s approach on this ground.

12    The second ground addressed by Tracey J was that the Tribunal had erred by failing to consider whether the applicant’s ethnicity and the political situation in Fiji gave rise to an international non-refoulement obligation. His Honour referred to the decision of the Tribunal where it stated that Australia’s non-refoulement obligations were not relevant to the determination of the application before it.

13    The applicant argued before his Honour that there was evidence of serious economic hardship he would face if returned to Fiji, particularly because of the downturn in the tourist industry. His Honour said at [24] that the Tribunal dealt with these matters and continued:

It is implicit in this treatment of the applicant’s case, as argued in the Tribunal, that the applicant had not there argued that the economic harm anticipated by him, should he return to Fiji, rose to the level of serious harm that would have engaged Australia’s non‑refoulement obligations. The solicitor who appeared for the Minister at the Tribunal confirmed that no submission was made by the applicant in the Tribunal that non-refoulement obligations prevented his return to Fiji..

14    His Honour observed that the Tribunal was bound to deal with claims which the applicant failed to articulate, but which clearly arose on the materials before it. However, his Honour concluded at [26]:

The material on which the applicant sought to rely could not, in my view, have founded a clearly articulated claim for non-refoulement. Much of the material was dated and little of it dealt expressly with the applicant’s personal circumstances. That which did concentrated on employment and health issues. At no point did he claim to fear persecution for a Convention reason or significant harm should he return to Fiji. In this context it is to be recalled that he voluntarily returned to that country in 1995 and remained there for 12 years without any suggestion of him suffering persecution for a Convention related reason.

Again, there was no error in the approach taken by his Honour on this ground.

15    The third ground addressed by Tracey J was whether the Tribunal had erred by finding that there was a likelihood of a negative impact on the victim and his family if the applicant’s visa was not cancelled when there was no evidence to support the finding as in Williams v Minister for Immigration and Citizenship [2013] FCA 702 ; (2013) 126 ALD 299. His Honour correctly distinguished the facts of that case. He said that the Tribunal referred to evidence in the statement of the applicant’s ex-wife that the victim had been very badly affected by this experience and that the victim’s mother (the deponent’s sister):

Would be devastated if the applicant remained in Australia.

16    His Honour concluded at [32]:

This material clearly supported the findings made by the Tribunal as to the adverse impact of the applicant’s offending on both the victim and on the reaction of the victim and some of his immediate family members to the applicant’s conduct.

17    In his affidavits and outline of submissions, the applicant sought to raise several further arguments which had not been advanced before Tracey J. The applicant would require leave to advance those arguments on appeal because they had not been advanced initially.

18    One argument is that the decision of the Tribunal was unreasonable in that it lacked an evident or intelligible justification. This argument is not particularised. Without particulars, it is not possible to determine whether there is merit in that argument.

19    Another argument concerned the use by the Tribunal of Ministerial Direction No. 55. Although in the written materials it appeared that the applicant was suggesting that the Tribunal should have referred to Ministerial Direction No. 65, it became clear in the course of the oral hearing that this was not the case. Based upon the written submission, the Minister correctly pointed out that Direction No. 65 commenced on 23 December 2014, that is to say, 11 months after the Tribunal decision. Thus it could not be said that the Tribunal was bound to apply Direction No. 65. However, in his oral submission the applicant explained that the ground amounted to no more than saying if the matter was returned to the Tribunal, he would ask that the earlier direction apply because it had a more lenient regime than the later direction. The applicant said that Direction No. 55 permitted the Tribunal to determine that the applicant be given a warning rather than be removed from Australia because the offences were his first offences. Alternatively, it seems to have been put that the Tribunal might have in applying Direction No. 55 given the applicant a warning rather than come to the view that he should be removed.

20    The argument concerning the Direction was not put to Tracey J, was entirely within the discretion of the Tribunal and provides no basis for an appeal from the decision of Tracey J nor a valid criticism of the decision of the Tribunal.

21    Then the applicant appears to have submitted that he was denied procedural fairness in relation to the consideration of the best interests of his children because of the way witnesses on the subject were dealt with by the Tribunal and counsel for the Minister. However, no evidence of the proceeding before the Tribunal was placed before Tracey J or before this Court. Thus no basis for the allegation has been demonstrated.

22    Then the applicant contended that he was denied procedural fairness because no weight was given to support letters from prominent people in the community. The Tribunal decision does not specifically refer to the suggested support letters from prominent people in the community. At the oral hearing the applicant explained that three letters were submitted from church leaders, one from the Salvation Army, one from the prison fellowship which he explained as being a Seventh-Day Adventist association and one from a Catholic priest. He said there was also a letter from Jobsearch apparently about his ability to obtain employment on release. The letters from the churchmen, the applicant explained, went to his character, explained that he had accepted responsibility for his wrongdoing and generally indicated their support for the applicant.

23    The question of the support for the applicant was considered by the Tribunal in a number of places. Further, there were references throughout the Tribunal decision generally to the documents provided to it. Counsel for the Minister pointed, for example, to the Tribunal decision at [32] as one example of the Tribunal’s reference to the documents provided to it.

24    The Tribunal at [75] referred to the support which appeared from exhibited documents and correspondence from members of the applicant’s extended family. It was up to the Tribunal to choose the evidence upon which it would base its decision concerning the support which the applicant had in the community. There is no error in the failure of the Tribunal to specifically refer to the letters from the churchmen.

25    The applicant then submitted that the Tribunal erred in its consideration of his medical condition. This was a matter which he emphasised in his oral submissions. He explained his ongoing difficulties from injuries which resulted from a workplace accident. In his written submissions, the applicant referred to the view of the delegate that the removal of the applicant from Australia is likely to complicate his application for workers compensation arising out of that injury. He submitted that the Tribunal had no basis upon which to attack his brother whilst his brother gave evidence of the applicant’s medical condition. The Tribunal dealt with this matter at [83] as follows:

The applicant has previously suffered a neck injury which resulted in surgery following a work accident in Melbourne.  He currently has a Workcover application seeking an impairment lump sum and has engaged solicitors in Melbourne.  The future of that application remains uncertain.  However, the applicant’s evidence of continuing complaints of neck, shoulder and right arm pain is in my view capable of being treated in Fiji.  Whilst the applicant’s brother described Fiji as a third world country, he did indicate that hospitals exist where treatment, if needed, could be provided.  There is no evidence of the applicant suffering any other illness or injury which would be likely to cause him to need medical treatment.

In essence, the applicant seems to challenge the merits of this finding. That course is not open on an application for judicial review. It is therefore not open on an appeal from a judgment dealing with the judicial review. The argument was not advanced before Tracey J and leave to advance it on appeal would not be granted.

26    The applicant then contended that the Tribunal took into account an irrelevant consideration, namely, a letter from the applicant’s father which, although generally in support of the applicant, also showed the applicant’s propensity to violent outbursts. That was not irrelevant. It related to the evidence of Dr Willis, a psychologist, who had explained as referred to in [55] of the Tribunal’s decision, that:

…probable dynamic risk factors, if present, which might increase the risk of re-offending were alcohol abuse, befriending males under 16 years of age and problems managing his emotions.

[Emphasis added]

This consideration led the Tribunal to a concern about the risk of the applicant reoffending.

27    Finally, the applicant claimed that Tracey J failed to consider the implication of the release of his personal details by the Department. The data breach incident occurred on 10 February 2014.

28    It could not therefore give rise to an argument that the Tribunal made a jurisdictional error by failing to take it into account because the Tribunal decision was made before the data breach, on 15 January 2014.

29    The event may have established a basis for a protection visa application. The applicant made such an application on 30 October 2014. The application was refused: AAG15 v Minister for Immigration & Anor [2015] FCCA 2445; AAG15 v Minister for Immigration and Border Protection [2016] FCA 67. The refusal was challenged all the way to the High Court which upheld the refusal on 3 June 2016: AAG15 v Minister for Immigration and Border Protection [2016] HCATrans 131.

30    The event might also have provided a basis for a delay in removal whilst the Minister considered the exercise of discretion under section 417 of the Act: see SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125; 234 FCR 1. But in the applicant’s case, that process was concluded on 30 March 2016 when the applicant was told that his request for the exercise of discretion under section 417 would not be referred to the Minister.

31    Consequently, there is no basis upon which the data breach could successfully be raised on any appeal in this matter.

32    I am prepared to assume, for the purpose of this application, that the applicant has an explanation for the delay in bringing this application. I am also prepared to assume, for the purpose of the application, that the Minister would not suffer prejudice if the time for appeal were extended. However, it follows from these reasons for judgment that the applicant’s appeal is bound to fail. In those circumstances, the grant of an extension of time would be futile. The application for an extension of time is therefore refused.

33    On 17 June 2016, the applicant filed an interlocutory application seeking an injunction preventing the Minister removing the applicant from Australia until the hearing and determination of the appeal, a writ of habeas corpus requiring the Minister to produce the applicant at the hearings of the matter and that the matter be heard by three judges of the Court.

34    Because the application for an extension of time has been refused, there is no basis for the interlocutory orders sought. There can be no impediment arising from the currency of this matter to the removal of the applicant from Australia. There are no further hearings to be conducted in the matter at which the applicant will need to attend, and there will be no appeal to be conducted by three judges of the Court.

35    Consequently, the interlocutory application is also dismissed.

Associate:

Dated:    2 August 2016