FEDERAL COURT OF AUSTRALIA

Cayzer v Minister for Immigration and Border Protection [2017] FCA 1189

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s application for an extension of time under r 31.23 of the Federal Court Rules 2011 (Cth) to lodge an application for review of a migration decision is refused.

2.    The Applicant pay the Respondent’s costs of the application, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

KERR J:

1    By an application filed on 16 June 2017 the Applicant applies for an extension of time to lodge an application for the review of a migration decision. Section 477A of the Migration Act 1958 (Cth) (the Migration Act) provides that such an application must be brought within 35 days of the migration decision having been made, subject to the power of the Court to order that period to be extended as it considers appropriate if, inter-alia, the Court “is satisfied that it is necessary in the interests of the administration of justice to make the order”.

2    The decision the Applicant seeks an extension of time to review was made on 27 October 2014.

3    It was a decision of the Minister to cancel the Applicant’s Class BF Transitional (Permanent) Visa under s 501(2) of the Migration Act.

4    Transitional permanent visas are not 'granted' in the same way as other visas. Instead, all Transitional Permanent visas came into effect on 1 September 1994 by operation of law under the Migration Reform (Transitional Provisions) Regulations 1994 (the Transitional Regulations). The Transitional Regulations provided for persons of various circumstances to be taken to hold a transitional permanent visa as from 1 September 1994. It is uncontentious that such a circumstance had applied to the Applicant.

5    The Applicant was born in Scotland. He arrived in Australia from the United Kingdom with his family in 1965. He was then aged 5 years old. From the age of 5 he had never lived anywhere but Australia.

6    As a person holding a Class BF Transitional (Permanent) Visa ordinarily Mr Cayzer would have been entitled to reside in Australia for the remainder of his life.

7    However, on 11 November 2011 he was convicted in the Supreme Court of Tasmania of a serious crime. The offence for which he was convicted was Maintain Sexual Relations with Persons under 17 Years of Age. He was sentenced to four years imprisonment.

8    Section 501(2) of the Migration Act provides:

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)    The person does not satisfy the Minister that the person passes the character test.

9    By notice dated 8 January 2014 the Minister informed the Applicant that he was considering cancelling the Applicant’s visa pursuant to that provision. The Applicant made submissions in writing to the Respondent urging a different outcome on 21 March 2014 and 8 July 2014.

10    Those representations failed to persuade the Minister. On 27 October 2014 the Minister decided to cancel the Applicant’s visa. Mr Cayzer was informed by officers of the Department of Immigration and Border Protection that he must report to them by 31 October and that upon reporting he would be detained pending his removal from Australia.

11    The Applicant immediately challenged the Minister’s decision. Initially these proceedings concerned his liability to be removed from Australia and/or detained pending hearing: Cayzer v Minister for Immigration and Border Protection [2014] FCA 1166; Cayzer v Minister for Immigration and Border Protection (No 2) [2014] FCA 1283. Those interlocutory matters concluded upon the Minister undertaking by his counsel that the Applicant would not be removed from Australia pending the determination of his application.

12    Mr Cayzer’s substantive application was then heard and determined by Mortimer J: Cayzer v Minister for Immigration and Border Protection (No 3) [2016] FCA 806; (2016) 242 FCR 169. As her Honour’s decision reveals, the Applicant pressed submissions inter-alia: (a) that he had acquired Australian citizenship in 1981 when he had sought to join the Australian armed forces; (b) that by reason of his status as an elector, the reasoning of the High Court in Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28 was distinguishable and any conclusion it might appear to compel that he was not an alien did not apply to him; and (c) that the Minister’s decision was void for unreasonableness. The full list of Mr Cayzer’s contentions appears at [20] of her Honour’s reasons. All were determined adversely to the Applicant by her Honour.

13    An appeal from that decision was dismissed; Cayzer v Minister for Immigration and Border Protection [2016] FCAFC 176 (Kenny, Flick and Griffiths JJ) as was, on 11 May 2017, Mr Cayzer’s application for special leave to appeal to the High Court; Cayzer v Minister for Immigration and Border Protection and Anor [2017] HCASL 117 (Bell and Nettle JJ).

14    The present application for extension of time, if granted, would permit the Applicant to pursue a second challenge to the same decision on new grounds, not within 35 days but some two and a half years after its making. The new grounds sought to be advanced are:

1.    The Minister made a jurisdictional error by purporting to exercise s 501(2) of the Migration Act 1958 (Cth) (Act) in relation to the Applicant when the Applicant was not a “person” within the meaning of the provision as he attracted Art 12(4) of the International Covenant on Civil and Political Rights (ICCPR).

a.    The Applicant was a person for whom Australia was “his own country” within the meaning of Art 12(4) of the ICCPR in light of the jurisprudence of the Human Rights Committee in Nystrom v Australia No 1557/2007 and Warsame v Canada No 1959/2010;

b.    Under the principle of legality the term person in s 501(2) of the Act is not to be construed as infringing fundamental rights unless it does so with irresistible clarity (X7 v Australian Crime Commission (2013) 248 CLR 92 at [158]);

c.    Fundamental rights for this purpose include the right recognised by Art 12(4) of the ICCPR (DPP v Kaba (2014) 44 VR 526 (Kaba) at [181]);

d.    There is nothing irresistible in the use of the term person by the Act which would prevent the term from being construed under the principle of legality to exclude a person such as the Applicant who attracted Art 12(4) of the ICCPR.

2.    In the alternative to Ground 1, the Minister made a jurisdictional error by purporting to exercise s 501(2) of the Act in relation to the Applicant when the Applicant was not a “person” within the meaning of the provision as he attracted the fundamental common law right of a subject of the Crown to remain in Australia as amplified to include the Applicant by reference to Art 12(4) of the ICCPR.

a.    If, contrary to Kaba, Art 12(4) of the ICCPR does not of itself attract the principle of legality, the Applicant nonetheless enjoys a fundamental right grounding a favourable application of the principle to s 501(2) of the Act;

b.    A citizen has a fundamental common law right to enter and remain in Australia (Potter v Minahan (1908) 7 CLR 277; Air Caledonie v Commonwealth (1988) 165 CLR 462 at 469; R (Banncoult) v Secretary of State for Foreign and Commonwealth Affairs [2009] AC 453 (Bancoult) at [44], [70], [88], [123], [151]);

c.    The right attracts the principle of legality (Bancoult at [45]);

d.    The right should be developed in light of international law, specifically Art 12(4) of the ICCPR, so that it protects the Applicant (Mabo v Queensland (No 2) (1992) 170 CLR 1 at 42).

3.    The Minister’s conduct under s 501(2) of the Act was legally unreasonable (SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 at [10], [59]) with the unreasonableness generated by inconsistency with Art 12(4) of the ICCPR (Premalal v Minister for Immigration (1993) 41 FCR 117 at 138; R v Ministry of Defence; Ex parte Smith [1996] QB 517).

15    In AYX15 v Minister for Immigration and Border Protection [2017] FCA 1037 Perry J conveniently summarised at [9] and [10] the principles which this Court will apply in the ordinary course in determining whether or not an extension of time should be granted. I respectfully adopt her Honour’s summary as a correct statement of the relevant law. It is as follows:

[9]    The principles relevant to the exercise of discretion to grant an extension of time for an appeal are well established. These principles may be summarised as follows.

(1)    An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.

(2)    The length of the delay is a relevant factor.

(3)    The applicant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.

(4)    Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.

(5)    The merits of the substantive appeal, if leave were granted, are properly to be taken into account.

(See e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.)

[10]    As to the last of these matters, it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and the Court, and the impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess ‘the merits’ in a fairly rough and ready way”: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]. In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground: see MZABP (FCA) at [62].

16    What then are the circumstances asserted on the Applicant’s behalf that would warrant the Court being satisfied that the grant of an extension of time in this instance “is necessary in the interests of the administration of justice”?

17    The sole evidence before the Court in that regard is the affidavit of Mr Geoffrey Tremayne of 16 June 2017. It is a relatively short document. I include it in its entirety:

I Geoffrey William Tremayne say on oath:

1.    The contents of paragraphs 2 and 3 are true based on my knowledge. The balance of the affidavit is true to the best of my knowledge, information and belief based on my inquiries of relevant persons.

2.     I am the Applicant's solicitor and I am authorised to make this affidavit on the Applicant's behalf.

3.     I have instructed new counsel in this matter and am satisfied that there is scope for a fresh judicial review proceeding on reasonably arguable grounds. Annexed and marked "GWT1" is a copy of the proposed application.

4.     This matter has a long history. The Applicant arrived in Australia as a small child in 1965. He was a permanent resident but did not acquire citizenship. On 11 November 2011, the Applicant was convicted of a sexual offence and sentenced to imprisonment. He was released on parole in mid-2014.

5.     On 27 October 2014, the Applicant's visa was cancelled by the Minister personally. Annexed and marked "GWT2" is a copy of the Minister's decision. On or about 23 November 2014, the Applicant was taken into immigration detention. He has been in immigration detention ever since and is presently detained on Christmas Island.

6.     I note that s.486D of the Migration Act 1958 (Cth) does not apply as the present case does not concern a Tribunal decision. However, for completeness, I disclose that the Applicant has previously challenged the Minister's decision on constitutional grounds in the Federal Court without success. Those grounds differ from the grounds now put forward by the Applicant which concern statutory interpretation. The earlier proceedings included a judgment of the Full Federal Court: [2016] FCAFC 176. The High Court refused special leave to appeal: [2017] HCASL 117.

7.     The grounds now put forward by the Applicant are novel and creative but are substantially different from the case previously advanced by the Applicant. The arguments are presently reserved before Justice Bromwich of the Federal Court in Sydney in a separate proceeding involving a different Applicant, NSD 115/2017.

8.     If the Applicant's case on the grounds set out in Annexure "GWT1" is successful there is the most serious consequence: the Minister's decision set out in Annexure "GWT2" was without statutory power and invalid. Conversely, if the grounds are not adjudicated the Applicant faces deportation from his homeland of more than 50 years without having had a final opportunity to establish jurisdictional error.

9.    This case is appropriate for an extension of time and hearing.

18    There is nothing to indicate when Mr Tremayne became the Applicant’s solicitor.

19    Mr Tremayne’s affidavit contains nothing to gainsay the proposition that the grounds now sought to be advanced could have been raised in the earlier litigation. There is nothing that adequately explains why the grounds now sought to be advanced were not previously advanced.

20    For the Applicant, Mr Jones submits (at [2] of his written submissions) that that affidavit establishes the delay was due to the Applicant’s pursuit of constitutional litigation.

21    If that submission is taken to assert that the nature of the previous litigation was such as to exclude the possibility of those grounds being advanced concurrently with those actually contended for, I reject that proposition.

22    As the record demonstrates (Affidavit of David Wilson dated 27 July 2017) and as Mr Lloyd and Mr Hume submit, the Applicant advanced not only constitutional grounds but also many other grounds, in his previous litigation.

23    Neither Australia’s accession to the International Covenant on Civil and Political Rights (the ICCPR) nor the Human Rights Committee’s decision in the Nystrom matter (Human Rights Committee, Views: Communication No. 1557/2007, 102nd sess, UN Doc CCPR/C/102/D/1557/2007 (18 July 2011) (‘Nystrom’)) which Mr Jones submits to be relevant to the proper understanding of Art 12(4) and its potential impact on the proper construction of s 501(2) of the Migration Act were unknown at the time of the Minister’s decision to cancel Mr Cayzer’s visa. Both were public and readily accessible.

24    As Mr Lloyd and Mr Hume submit (at [14] of the Respondent’s submissions) there was no mutual exclusivity between his running the constitutional points which he then advanced and also taking points of the kind now sought to be raised – that being proven by the very case the Applicant actually ran.

25    It may be accepted that the Applicant’s representatives in his previous litigation did not in terms advance the grounds which Mr Tremayne deposes new counsel has advised him to be “reasonably arguable”.

26    However as Mr Lloyd and Mr Hume submit, the relief sought in Mr Cayzer’s earlier litigation sought an order “that the first respondent acted ultra vires in applying the Migration Act 1958 (Cth) to the applicant”.

27    As the Respondent submits, the whole thrust of the case advanced by the Applicant in the prior proceedings in support of that relief was that the strength, nature and duration of Mr Cayzer’s ties to Australia meant he was beyond the scope of s 501(2).

28    If a grant of an extension of time were made having regard to the proposed statutory construction ground, the same factors and the weight to be accorded to them would have to be entirely revisited.

29    For the above reasons I reject the notion that somehow the constitutional aspects of the case he previously advanced would have precluded the grounds the Applicant now seeks to propound being asserted. I proceed on the basis that the Applicant is seeking time be extended to permit him to litigate issues which had been open to him to raise, but which were not raised in express terms, in his earlier litigation.

30    The principles stated by Perry J are not to be applied as fixed rules and the weight to be given to particular factors will depend on the circumstances of the particular matter before the Court. While the general rule is that an applicant must show an acceptable explanation of the delay, the absence of such an explanation will not in every case preclude an extension being granted: see Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142 at [33].

31    As the evidence before me stands it can be accepted that the grounds now sought to be raised were not previously advanced, at least in express terms, but the reason for that remains unexplained.

32    Given the Applicant has put no evidence before me to explain why that argument was not previously advanced, it is unprofitable for me to speculate as to the reasons. The grounds now sought to be pressed may not have been advanced because Mr Cayzer’s legal team in the earlier proceedings took a forensic decision that that they had insufficient prospects of success, or the benefit of expressing his claim in that precise form may never have occurred to them. There are many possible permutations, none established by the evidence. Nothing before me suggests that Mr Cayzer’s former legal team led by senior and experienced counsel acted with disregard to his interests.

33    While the principles stated by Perry J apply in the ordinary case, I regard myself as bound by the reasoning of Gageler J in Vella v Minister for Immigration and Border Protection [2015] HCA 42; (2015) 90 ALJR 89 (Vella) to proceed on the basis that an even more stringent approach must apply where a matter has been litigated to finality and then a party against whom the case has been decided seeks to raise a new argument that could have been put during the hearing but was not.

34    Vella is not on all fours with this matter but I accept Mr Lloyd and Mr Hume’s submission that it is strongly analogous. Like Mr Cayzer, Mr Vella had lived in Australia for most of his life but had never become an Australian citizen. (The argument that Mr Cayzer was an Australian citizen is foreclosed as a matter of res judicata). On 13 June 2014 the Minister cancelled Mr Vella’s visa under s 501(3) of the Migration Act and, after receiving submissions from Mr Vella, decided not to revoke that cancellation. Mr Vella challenged the Minister’s decision not to revoke the cancellation. His application was dismissed in the Federal Court and on appeal to the Full Court. Special leave was refused.

35    Mr Vella then sought to commence proceedings in the original jurisdiction of the High Court challenging the cancellation decision, including on certain constitutional and constructional grounds as later unsuccessfully advanced by Mr Cayzer. He needed leave to extend time under s 486A(2) of the Migration Act to commence those proceedings. As Mr Lloyd and Mr Hume submit, while s 486A(2) applies in respect of time limits for proceedings in the High Court, that section is relevantly identical to s 477A(1) as it applies to proceedings in this Court.

36    At [18] his Honour quoted the statement of principle set out in University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 (Metwally (No 2)) at [483]:

Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

37    His Honour continued at [19]:

The principle to which reference was made in Metwally (No 2) is reflected in the overlapping doctrines of issue estoppel and abuse of process recently considered in Tomlinson v Ramsay Food Processing Pty Ltd [(2015) 89 ALJR 750 at [22]-[26]]. It is not necessary or appropriate to bring either of those specific doctrines to bear in the present case. It is sufficient that the principle tells strongly against the conclusion that the interests of the administration of justice make it necessary to extend time for a party to litigate issues which that party has already had an opportunity to raise in earlier litigation.

38    As against this, Mr Jones submits at [2] and [3] of his written submissions that the critical factor is the strength of the Applicant’s case. However those submissions were advanced without reference to the significant hurdle the Applicant would have to overcome even if he were granted an extension of time to lodge his application. As the Respondent’s submissions foreshadow, it would be met by a claim based on the doctrine of Anshun estoppel.

39    In oral argument, Mr Jones accepted the reasoning and authority of Kong v Minister for Immigration and Citizenship [2011] FCA 1345; (2011) 199 FCR 375 (Kong) in which Flick J concluded that the doctrines of Anshun estoppel and abuse of process operate not only in inter partes litigation but also in judicial review processes: see [35]-[40]. Analogously to the doctrine stated by the High Court in Metwally (No 2) a party may be estopped from later raising an argument in a subsequent proceeding which he or she could reasonably have relied on in an earlier proceeding – whether that be by reason of forensic choice, negligence, inadvertence or accident.

40    Mr Lloyd and Mr Hume submit that the circumstances in Kong would be relevant by analogy:

[26]    There is a useful analogy with the circumstances before Flick J in Kong. There, the relevant visa cancellation decision was made by the Migration Review Tribunal on 30 March 2005; at [2]. There were proceedings in the Federal Magistrates Court and the Federal Court, which were determined in May and November 2006 respectively: at [2]. The High Court ultimately refused special leave to appeal: at [2]. On 9 May 2011, the Applicant then sought to commence new proceedings before the Migration Review Tribunal, but the Tribunal ruled that it lacked jurisdiction: at [4]. Proceedings were then commended in the Federal Magistrates Court on 29 July 2011 and, ultimately, in the Federal Court on 9 August 2011. In the second set of proceedings, the applicant relied on a different ground of jurisdictional error: at [30]. The relevant ground had been first discerned in the decision of Dai v Minister for Immigration and Citizenship (2007) 165 FCR 458. The Minister accepted that the decision was infected by Dai error, but nonetheless opposed the grant of relief on the grounds of res judicata and Anshun estoppel: at [19] – [20].

[27]    Flick J ultimately concluded that the new proceedings were barred by Anshun estoppel. Flick J held (at [42]):

Mr Kong cannot now rely upon the jurisdictional error exposed by Dai. The public interest in the certainty of administrative decision-making prevails over permitting Mr Kong the freedom to raise the argument some four years after the decision of the Full Court in Dai and seven years after the cancellation of his visa. After such a period of time, the importance to be ascribed to possibly inconsistent judgments being delivered – one in 2006 and the other in 2011 in this appeal – is only increased and weighs heavily against Mr Kong.

41    They submit that there would be even a stronger case for the application of Anshun estoppel in any new proceedings brought by the Applicant than was present in Kong:

[28]    … In Kong, the new ground relied on was not “discovered” until after the applicant had sought judicial review. Flick J relied on this as a matter cutting against the application of Anshun estoppel: at [40]. It also appears that the applicant may have been unrepresented in the earlier proceedings: see at [41]. Neither of these points can be made in respect of the Applicant.

42    Mr Jones did not make submissions relevant to those submissions other than to observe that Flick J had left open the possibility of there being some flexibility in the application of the doctrine of Anshun estoppel in public law litigation. I accept that submission. However, in the absence of any reason for such flexibility to apply in Mr Cayzer’s instance having been identified, the Applicant’s contention that he has a strong case provided only that an extension of time be granted cannot be accepted.

43    Nor am I persuaded that, assuming the Anshun hurdle may be surmounted, the Applicant’s case would be a strong one. Mr Jones’ submissions with regard to Grounds 1 and 2 were as follows:

Ground 1

[15]    In DPP v Kaba (2014) 44 VR 526, Bell J of the Supreme Court of Victoria held as follows (at [181]):

Applying these principles, treating the rights and freedoms in the ICCPR as fundamental rights and freedoms for the purposes of the principle of legality would, I think, be a natural and appropriate step to take. It would reflect the close relationship between common law rights and freedoms and those recognised in the ICCPR. It would be consistent with the widespread acceptance of the ICCPR in the Australian legal system. It would fit well into the constitutional relationship between parliament and the judiciary. It would not represent backdoor importation of an unincorporated convention into Australian law. It would bring a greater measure of certainty to the identification of the rights covered by the principle without limiting those already covered or inhibiting the capacity of the common law to develop in this regard. In relation to the issue of limitation of rights, it would fit with the way in which, under the existing principle, legislation is read down (where appropriate) so as to be compatible with human rights.

[16]    In light of Kaba, the threshold question is whether the Applicant attract[s] rights and freedoms recognised by the ICCPR. As indicated, Art 12(4) of the ICCPR is relevant. The critical issues are:

(a)    whether Australia is the Applicant’s “own country” within the meaning of Art 12(4) of the ICCPR; and

(b)    whether the legislative scheme, in effectively depriving the Applicant of the right to enter Australia, does so “arbitrarily”.

[17]    In Nystrom v Australia, Communication No 1557/2007 (Nystrom), the United Nations Human Rights Committee considered the meaning of Art 12(4) of the ICCPR. The Committee remarked (at 7.4, references omitted):

… the Committee recalls its General Comment No 27 on freedom of movement where it has considered that the scope of “his own country” is broader that the concept “country of his nationality”. It is not limited to nationality in a formal sense, that is nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. In this regard, it finds that there are factors other than nationality which may establish close and enduring connections between a person and a country, connections which may be stronger than those of nationality. The words “his own country” invite consideration of such matters as long standing residence, close personal and family ties and intentions to remain, as well as to the absence of such ties elsewhere.

[18]    The Committee applied this criterion to the facts before it as follows 9at 7.5, references omitted):

In the present case, the author arrived in Australia when he was 27 days old, his nuclear family lives in Australia, he has no ties to Sweden and does not speak Swedish. On the other hand, his ties to the Australian community are so strong that he was considered to be “an absorbed member of the Australian community” …the Committee considers that the author has established that Australia was his own country within the meaning of Article 12, paragraph 4 of the Covenant, in the light of string ties connecting him to Australia, the present of his family in Australia, the language he speaks, the duration of his stay in the country and the lack of any other ties than nationality with Sweden.

[19]    This reasoning leads to the same conclusion with respect to the Applicant in the present case. The Applicant came to Australia as a small child. All of his immediate family and extended family live in Australia. He completed all of his education in Australia. His partner lives in Australia. His career has been in Australia and he has voted in Australian elections (GWT 16 [17] to 17 [31]).

[20]    This leaves the question of arbitrariness. In Nystrom, the Committee remarked (at 7.6):

… the Committee recalls its General Comment No 27 on freedom of movement where it has stated that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable. A State party must not, by stripping a person of nationality or by expelling an individual to a third country arbitrarily prevent this person from returning to his or her own country.

[21]    In Warsame v Canada, Communication No 1959/2010, the Committee held the following (at 8.6):

… a deportation of the author to Somalia would render his return to Canada de facto impossible due to Canadian immigration regulations. The Committee therefore considers that the author’s deportation to Somalia impeding his return to his own country would be disproportionate to the legitimate aid of preventing the commission of further crims and therefore arbitrary.

[22]    The Committee elsewhere referred to the fact that the author’s return to Canada on a visitor’s visa would be impossible “for a significant lapse of time” (at 8.10).

[23]    In Amohanga v Minister for Immigration and Citizenship (2013) 209 FCR 487 (Amohanga), Edmonds J said, albeit without referring to Nystrom or Warsame, the following (at [40], references omitted):

The consideration of the applicant’s visa involved a determination according to law in which a number of factors, including the effect on the applicant’s family and personal circumstances, were considered. In my view, it is clear that the process of cancellation and hearing before the Tribunal could not, on any meaning of the word, be described as arbitrary.

[24]    However, as Warsame effectively recognised, the concept of arbitrariness for Art 12(4) of the ICCPR “is not to be confined to procedural arbitrariness” (at 8.8). The same point was made by Bell J in Kaba, where his Honour quoted from an earlier judgment he had delivered in Patrick’s Case [2011] VSC 327 at [85] on the concept of arbitrariness for the purposes of the ICCPR:

[Arbitrariness] extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful.

[25]    Amohanga should not be applied in the present case. The conclusion of Edmonds J as to arbitrariness was in obiter. Contrary to Warsame and Kaba, his Honour did not consider substantive arbitrariness. Further, there is such arbitrariness present on the facts of this case because (and this will presumably be common ground) the Applicant will not realistically be permitted to re-enter Australia for a substantial period (GWT p 14 [2] – [3]).

[26]    As the Applicant attracts Art 12(4) of the ICCPR, the next question is how, in accordance with Kaba, the principle of legality operates in the present case. The principle of legality states that legislation will not be construed as intended to remove a fundamental common law right unless it is expressed with “irresistible clearness”, meaning that it is manifest that Parliament has considered and determined to abrogate the right (X7 v Australian Crime Commission (2013) 248 CLR 92 at [158] per Kiefel J). The right of the Applicant to enter and remain in Australia is sufficiently important to attract the principle of legality (Bancoult at [45]).

[27]    Section 501(2) of the Act is confined to a “person”. It is submitted that, in accordance with the principle of legality, the general term “person” should be read down so as to exclude a person enjoying the right to enter and remain in Australia as “his own country” under Art 12(4) of the ICCPR.

[28]    This would have the result that, as s 501(2) of the Act was not available with respect to the person, there was no scope for the minister to cancel the Applicant’s visa. By purporting to do so by reference to s 501(2) of the Act, the Minister made a jurisdictional error.

Ground 2

[29]    In any event, apart from Kaba, there is a fundamental common law right which, in light of the [sic] Art 12(4), would likewise trigger the principle of legality in the present case. There is old and high authority that an Australian citizen has a common law right to enter and reside in Australia (Potter v Minahan (1908) 7 CLR 277; Air Caledonie v Commonwealth (1988) 165 CLR 462 at 469 per the Court; R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2009] AC 453 (Bancoult) at [44], [70], [88], [123], [151]). The right does not extend to aliens (Musgrove v Chun Teeong Toy[1891] AC 272; Ruddock v Vadarlis (2001) 110 FCR 491).

[30]    On the face of it, therefore, the fundamental common law right is not relevant to the Applicant, who is not a citizen. However, in Mabo v Queensland (No 2) (1992) 170 CLR 1(Mabo) at 42, Brennan J (Mason CJ and McHugh J agreeing) said:

Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights (68) See Communication 78/1980 in Selected Decision of the Human Rights Committee under the Optional Protocol, vol.2, p 23 brings to bear on the common law the powerful influence of the Covenant and the international standards it imports.

The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.

A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.

[31]    It is submitted that the common law right of an Australian citizen to enter and reside in Australia should be extended to a person in his “own country” within the meaning of Art 12(4) of the ICCPR.

44    Mindful of Perry J’s observation (which I respectfully adopt) that in considering an applicant’s prospects of success (which her Honour then expressed as relevant in relation to a proposed appeal – but which in my view is equally apposite to all circumstances in which leave to proceed out of time has been sought) that the court should not conduct a summary hearing but rather is to assess the merits “in a fairly rough and ready way” I find myself unpersuaded by Mr Jones’ submissions to the view that the case the Applicant would seek to advance based on those submissions is a strong one.

45    I do not doubt that the propositions advanced are arguable but they clearly face formidable obstacles.

46    The Applicant’s contentions as advanced in support of Ground 1 require the ordinary reading of the words of s 501(2) of the Migration Act to be displaced, having regard directly or indirectly to the terms of Art 12(4) of the ICCPR.

47    That is not a small step. In the ordinary course giving effect to the ordinary meaning of the text of a statute is the beginning and end of the judicial task.

48    Moreover it is well settled law that the international obligations Australia may enter into do not for that reason alone become incorporated into its domestic law. Thus, as an example, when the Human Rights Committee communicated its view to Australia that the then Tasmanian laws that made male homosexual conduct illegal were in violation of the obligations Australia had entered into when it acceded to the ICCPR, that of itself did not effect any alteration to those laws – rather it became the lawful basis for the Commonwealth Parliament to have legislated to override those laws.

49    The highest the Applicant’s case for direct application of a convention such as the ICCPR can be put appears to me to be as was expressed by Gleeson CJ in Re Woolley; Ex parte M276/2003 [2004] HCA 49; (2004) 225 CLR 1 (Re Woolley) at [11]:

If the scheme of the legislation, expressed in unambiguous language, were to be considered inconsistent with Australia’s international obligations under the Convention on the Rights of the Child, that would not justify a refusal by the Court to give effect to the legislation. Of course, if the statutory language were ambiguous, and if it were possible to give it a fair interpretation consistent with those obligations, different considerations would apply …

50    I do not take what Bell J concluded in Director of Public Prosecutions v Kaba [2014] VSC 52; (2014) 44 VR 526 with reference to ‘the principle of consistency’ to have altered that position. As his Honour noted at [145] the principle that a statute ought be construed consistently with undertakings accepted by Australia as its international obligations operates conditionally upon the statute or subordinate legislation subject to construction being relevantly ambiguous.

51    Mr Jones’ written submissions do not assert any relevant ambiguity in the language of the statute.

52    In oral argument Mr Jones sought to respond to that difficulty. He drew the Court’s attention to the general terms in which lawful and unlawful non-citizens are referred to in the Migration Act. To the extent that that submission equates generality to ambiguity it cannot be accepted. That a provision may be expressed in general terms does not of itself render a statute relevantly ambiguous so as to engage the interpretive principle: Re Woolley.

53    No ambiguity of the language of the statute having been asserted, it cannot be accepted that the Applicant has any case, let alone a strong case on the basis of the principle of consistency as discussed by Bell J, for the statute to be construed other than on its own terms.

54    In respect of Ground 2, Mr Jones accepts that there is no presently existing authority to support any contention that there is any fundamental common law right for a non-citizen to enter and remain in Australia whatever their circumstance (at [29] and [30]).

55    Mr Jones, however, cites the observations of Brennan J at [42] (Mason CJ and McHugh J concurring) in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 to the effect that while the common law does not necessarily conform with international law, international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.

56    On that premise Mr Jones submits that “the common law right of an Australian to enter and reside in Australia should be extended to a person in his ‘own country’ within the meaning of Art 12(4).”

57    To accept that if leave were to be granted for an extension of time it would be open to advance such an argument does not compel a finding that the Applicant’s prospects of success on that ground are strong. As the law currently stands there appears to be clear authority that the common law does not recognise that a person in the Applicant’s position can cease to have the status of (and associated disadvantages of) alienage (Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101 at 111) or not be subject to the vulnerability of an alien to exclusion or deportation: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 29-30).

58    As to Ground 3, Mr Jones accepted in oral argument that the principle established by the High Court in Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 does not apply so as to have required the Minister to have given express consideration to the Applicant’s possible rights under Art 12(4). Accepting that to be so, it is difficult to understand why the Minister’s decision with respect to the Applicant would be more vulnerable to attack on the grounds of legal unreasonableness if leave be granted than when such arguments were advanced in the earlier proceedings. As the Respondent notes the Minister plainly had regard to the strength, nature and duration of the Applicant’s ties to Australia. In any event I am satisfied that the reasoning of Einfeld J in Premalal v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 122; (1993) 41 FCR 117 at 138 does not support the conclusion submitted for by Mr Jones at [35] of his written submissions.

59    Mr Lloyd and Mr Hume’s written submissions advance many other arguments in support of the Minister’s contentions that the Applicant’s case would not be a strong one. I mean the Respondent’s counsel no discourtesy by not addressing those submissions in further detail.

60    Even putting the Anshun estoppel hurdle entirely aside for the reasons I have set out above, I am not satisfied that if leave to proceed out of time were granted that the Applicant’s case would be a strong one. Mr Jones’ submissions self-evidently rely, at least in some measure, upon the prospect that a court might further develop the law rather than simply apply established principles.

61    In oral argument Mr Jones himself referred to the grounds that he would seek to advance on Mr Cayzer’s behalf as “transnational”, “novel”, “technical” and “exotic”.

62    I would adopt those descriptions. Giving effect to the rough and ready assessment I am required to make, my conclusion is that the propositions sought to be advanced by the Applicant were leave to be granted are not unarguable, but that it would be an error to conclude they have been demonstrated to have strong prospects of success.

63    In respect of Mr Cayzer’s application for an extension of time Mr Jones accepts that given the matter has already previously been litigated to finality, albeit without reference to the specific grounds now sought to be advanced, the reasoning of Gageler J in Vella would require him to establish exceptional circumstances.

64    Mr Jones submits that because there are potentially decisive new grounds available to be argued, coupled with a consequence as can be imagined for the Applicant should he not be permitted to advance those grounds, those two factors taken together should be accepted as exceptional circumstances as required by Vella.

65    Mr Cayzer’s circumstances are not to be envied. As I apprehend it the foreseeable consequences of the refusal of this application will be that he will be removed from Australia to the United Kingdom, a country where he will have few if any links having not lived there since the age of 5.

66    However, relevantly indistinguishable unenviable consequences for Mr Vella attended him in consequence of Gageler J’s decision to refuse him an extension of time in those proceedings. Notwithstanding those adverse consequences, his Honour held that principle tells strongly against the conclusion that the interests of the administration of justice make it necessary to extend time for a party to litigate issues which that party has already had an opportunity to raise in earlier litigation.

67    Having regard to my conclusions that (a) no acceptable reason for the delay has been forthcoming; (b) a new proceeding would face the risk of dismissal on Anshun grounds; and (c) given I have not been persuaded that the grounds sought to be advanced have strong prospects of success, I do not accept that exceptional circumstances exist.

68    The Applicant’s application for an extension of time must be refused.

Associate:

Dated:    6 October 2017