FEDERAL COURT OF AUSTRALIA
McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109
ORDERS
Applicant | ||
AND: | ASSISTANT MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent | |
DATE OF ORDER: | 20 February 2018 |
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The applicant pay the respondent’s costs, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MCKERRACHER J:
THE APPLICATION
1 Mr McLachlan applies for an extension of time within which to challenge a decision of the Minister not to revoke a visa cancellation decision.
FACTUAL AND PROCEDURAL BACKGROUND
2 Mr McLachlan is a citizen of New Zealand having been born in that country on 8 August 1994. He first arrived in Australia on 4 February 2008 and was granted a Class TY Subclass 444 Special Category (Temporary) visa. Mr McLachlan was granted further Subclass 444 visas on 24 January 2009 and 29 May 2011 (visa).
3 Between 27 July 2010 and 26 July 2012, Mr McLachlan was convicted of various offences committed as a juvenile, including assault occasioning actual bodily harm.
4 On 13 December 2012, Mr McLachlan was convicted of larceny and sentenced to imprisonment for 8 months suspended on entering a bond.
5 On 29 August 2013, Mr McLachlan was convicted of the offence of larceny and was sentenced to 8 months’ imprisonment, with a non-parole period of 5 months.
6 On 18 October 2013, Mr McLachlan was convicted of aggravated breaking and entering for which he was sentenced to imprisonment for 2 years, with a non-parole period of 12 months.
7 On 10 February 2015, Mr McLachlan’s visa was cancelled by a delegate of the Minister under s 501(3A) of the Migration Act 1958 (Cth). Mr McLachlan was advised of the cancellation of his visa by letter from the Department of Immigration and Border Protection dated 10 February 2015, which also advised him that he had an opportunity to request that the decision to cancel his visa be revoked. The letter further advised Mr McLachlan that s 501CA(4) of the Migration Act allowed him to make representations about possible revocation of the visa cancellation decision on the grounds that he passed the character test, or that there was another reason why the decision should be revoked. The letter also enclosed a copy of Direction No 65, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, made by the Minister pursuant to s 499 of the Migration Act and advised Mr McLachlan that he should address each paragraph in Pt C that was relevant to his circumstances.
8 On 2 March 2015, Mr McLachlan lodged with the Department a request that the Minister revoke the mandatory cancellation of his visa, and provided reasons as to why the original decision should be revoked.
9 On 19 March 2015, Mr McLachlan was convicted of breaking and entering, for which he was sentenced to 2 years’ imprisonment, with a non-parole period of 12 months.
10 On 14 and 27 July 2016, an officer of the Department wrote to the applicant advising that the Department had received information which might be taken into account when making the decision whether to revoke the decision to cancel his visa under s 501CA of the Migration Act. The letters set out the information and invited his comments on the information.
11 On 28 September 2016, Mr McLachlan was convicted in the New South Wales Burwood Local Court of ‘Cause harm to Commonwealth official’ and was sentenced to a term of imprisonment of 7 months.
12 On 9 December 2016, another officer of the Department wrote to Mr McLachlan advising him that the Department had information which might be taken into account when making a decision whether to revoke the decision to cancel his visa, including the sentencing remarks of the New South Wales District Court on 19 March 2015, and a report from the New South Wales Department of Corrective Services dated 25 October 2016 in relation to his conviction on 28 September 2016 (copies of which were enclosed), and inviting his comments on this information.
13 On 24 January 2017, Mr McLachlan provided further information to the Department, including information from his mother, Ms Ana Head, supporting Mr McLachlan’s request that the decision that his visa be cancelled be revoked.
14 On 25 January 2017, Mr McLachlan faxed a letter to the Department, together with other documents, including a Personal Circumstances Form.
15 On 23 February 2017, the Assistant Minister for the Department made a decision pursuant to s 501CA(4) of the Migration Act not to revoke the decision to cancel Mr McLachlan’s visa.
16 By letter dated 23 February 2017, the Department advised Mr McLachlan of the Assistant Minister’s decision not to revoke the cancellation of his visa, and provided him with copies of the decision, the Assistant Minister’s Statement of Reasons, and the attachments to that Statement.
17 On 29 May 2017, Mr McLachlan lodged electronically with this Court an application for extension of time and leave to appeal. Under the heading of ‘Application for extension of time’, Mr McLachlan states that he applies for an extension of time to seek leave to appeal, and that the grounds of the application are set out the accompanying affidavit.
18 By an affidavit of Mr McLachlan dated 18 May 2017 (Mr McLachlan’s affidavit), Mr McLachlan provided reasons why he was not able to comply with the 35 day time limit, and reasons why he believes his application has merit.
19 On 20 June 2017, the Court made programming orders, including that by 4.00pm on 15 August 2017, Mr McLachlan should file and serve any amended application giving complete particulars of each ground of review, and any affidavit containing any additional evidence upon which Mr McLachlan proposes to rely relevant only to the grounds of review.
20 Mr McLachlan has not filed and served any amended application or any further affidavit.
RELEVANT STATUTORY PROVISIONS
21 Pursuant to s 476A(1)(c) of the Migration Act, the Court has jurisdiction in relation to migration decisions made personally by the Minister under s 501CA.
22 The time for filing and serving an application under s 476A(1)(c) is governed by s 477A of the Migration Act which relevantly provides:
477A Time limits on applications to the Federal Court
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.
THE EXTENSION OF TIME
23 Pursuant to s 477A(1) of the Migration Act, Mr McLachlan was required to make his application for review of the Assistant Minister’s decision within 35 days of the date of his decision, that is, by 30 March 2017.
24 The application before the Court was not filed until 29 May 2017. It was therefore 95 days after the Assistant Minister’s decision.
25 Section 477A(2) of the Migration Act provides that the Court may, by order, extend the 35 day period if Mr McLachlan has made an application for that order in writing specifying why Mr McLachlan considers that it is ‘necessary in the interests of the administration of justice’ to make the order, and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order. The ‘interests of the administration of justice’ is different from ‘the interests of justice’, importing considerations of management of the matter by the Court: see Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 (at [24]-[28]); WZANW v Minister for Immigration [2009] FMCA 1075 (at [25]); WZANX v Minister for Immigration [2009] FMCA 1010 (at [11]).
26 In Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491, McHugh J discussed the principles governing applications for the enlargement of time under the High Court Rules. Those principles are relevantly analogous to those that apply to applications for an extension under s 477A. In summary, McHugh J said that:
(1) The grant of an enlargement of time is not automatic (at [13]).
(2) A case ‘would need to be exceptional’ before the time for commencing proceedings was enlarged by many months (at [13] citation omitted).
(3) An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension (at [15]).
(4) In deciding whether or not to enlarge time, the explanation for the delay in commencing proceedings is a relevant consideration for the Court, and the applicant’s prospects of success in the proceedings (at [13]).
(5) Where an applicant seeks the issue of the constitutional writs, which are directed at the acts or decisions of public bodies or officials, the public interest requires that there be an end to litigation about the efficacy of such acts or decisions (at [15]).
27 In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (at 553-554), after examining the rationale for limitation provisions, McHugh J explained that (citations omitted):
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated … A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced." But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension. (Emphasis added)
28 Mr McLachlan has provided some explanation as to why he did not comply with the 35 day time limit or lodged his application in his affidavit dated 18 May 2017. However, those explanations appear to be all directed to Mr McLachlan’s attempt to lodge his application within the 35 day period, and provide no information as to the substantial further 60 day period from 30 March 2017 until lodging his extension of time application on 29 May 2017. The relevant paragraphs ([6]-[10]) of Mr McLachlan’s affidavit read as follows:
6. I had the Application and other documents ready to send of via email but was unable to send it of [sic] through my email because I was having difficulty logging into my account.
7. Once I did log in I couldn't get the paper work open on Microsoft word so I tried downloading it to a USB.
8. I then asked an officer to print it out but he said the printer did not work.
9. [deleted]
10. The next step I took was to send the paperwork via fax. I was told to go [sic] the education centre but when I went there the fax machine wasn't even plugged in. I was told by an officer that it is getting fixed. I then asked another officer to send it from the main office. He refused so I ended up sending it by express mail to my mother.
29 Mr McLachlan has not therefore provided any satisfactory, let alone persuasive, explanation for the full extent of the delay of 60 days beyond the 35 day statutory limit.
PROSPECTS OF SUCCESS OF MR MCLACHLAN’S PROPOSED GROUNDS OF APPLICATION
30 More importantly perhaps, and in any event, Mr McLachlan’s prospects of success are insufficient to justify an extension of time being granted in the interests of the administration of justice.
31 The application for an extension of time does not contain any proposed grounds of review of the Assistant Minister’s decision, but in Mr McLachlan’s affidavit he states (at [11]):
I believe my Application has merit for the reasons set out in the Application. The Respondent failed to take into account my particular circumstances in making his decision. In particular he made findings without have [sic] regard to evidence about whether adequate health care is available to me in New Zealand, which is significant given the state of my health. He also failed to assess the risk of my reoffending in his reasons.
32 Although Mr McLachlan states that his application has merit for the reasons set out in the application, as noted above, Mr McLachlan states in his application that the grounds of application are set out in the accompanying affidavit. The only reasons are those set out at [11] of Mr McLachlan’s affidavits, which provide that the Assistant Minister made findings without regard to the evidence about whether health care is available to him in New Zealand, and also failed to assess the risk of Mr McLachlan reoffending.
33 Neither of these two proposed grounds of application has any merit.
34 In arriving at his decision, the Assistant Minister noted in his Statement (at [25]) that a psychiatric report from Dr Richard Furst, dated 17 March 2015, indicated that Mr McLachlan suffered from Substance Use Disorder, Drug Induced Psychosis, Antisocial Personality Disorder, and was at risk of developing Schizophrenia. The Assistant Minister then stated:
While medical treatment for Mr MCLACHLAN’S mental health conditions is available in New Zealand, I find that his mental health and functioning will significantly increase the impediments he will face in establishing himself in New Zealand.
35 The Assistant Minister further stated (at [27]) of his Statement that:
New Zealand is culturally and linguistically similar to Australia and has comparable standards of health care, education and social welfare support. Mr MCLACHLAN will have equal access to these as do other New Zealand citizens.
36 The Assistant Minister nevertheless concluded (at [27]) that, given Mr McLachlan’s particular circumstances, including his mental health conditions, ‘non-revocation of the cancellation decision will involve substantial hardship for him’.
37 The Assistant Minister’s conclusions that medical treatment for Mr McLachlan’s mental health conditions is available in New Zealand, and that New Zealand has comparable standards of health care to Australia to which Mr McLachlan will have equal access, were conclusions that were reasonably open to him, and do not disclose any jurisdictional error. The Assistant Minister was not required to refer to any specific evidence in order to arrive at those conclusions, which were based on an understanding that New Zealand is a country with equivalent standards of health, welfare and education to Australia.
38 Accordingly, Mr McLachlan’s first proposed ground of review has no prospects of success.
39 Mr McLachlan’s second proposed ground of review, namely that the Assistant Minister failed to assess the risk of his reoffending, also has no prospects of success.
40 The Assistant Minister considered Mr McLachlan’s risk of reoffending in considerable detail under the heading of ‘Risk to the Australian community’ (at [45]-[64]) of his Statement.
41 The Assistant Minister’s conclusion, that there is a likelihood that Mr McLachlan will re-offend (at [64]), was a conclusion more than reasonably open to the Assistant Minister in light of his consideration of Mr McLachlan’s history of offending (at [29]-[44]), that notwithstanding the counselling he attended in 2013 to address his substance abuse issues and his detoxification while in prison, he committed a further offence only three and a half weeks after his release on parole on 4 April 2014 (at [54]), and that in his psychiatric report dated 17 March 2015, Dr Furst expressed the view that Mr McLachlan had a ‘poor long term prognoses with a high risk of relapsing into drug use and re-offending’ (at [51]). The Assistant Minister’s conclusion does not demonstrate any jurisdictional error.
42 Accordingly, the second proposed ground of review, that the Assistant Minister failed to access the risk of Mr McLachlan re-offending, cannot be made out.
43 Therefore, Mr McLachlan’s proposed grounds of application have no prospects of success that suggest that the administration of justice would be served by granting an extension of time under s 477A(2).
CONSTITUTIONAL VALIDITY OF S 501(3A) OF THE MIGRATION ACT
44 Delivery of this judgment was postponed until the outcome of an application by Mr Falzon in the High Court of Australia in which an applicant sought a writ of certiorari to quash the decision of the Minister not to revoke the decision to cancel his visa, a writ of certiorari to quash the decision of the Minister to cancel his visa, a writ of mandamus directing his release from immigration detention immediately, and a declaration that s 501(3A) of the Migration Act is invalid: High Court Application No. S31 of 2017; John Falzon (Plaintiff) and Minister for Immigration and Border Protection (Defendant).
45 Mr Falzon's application asserts that s 501(3A) of the Migration Act is invalid because it purports to confer the judicial power of the Commonwealth on the Minister in a manner contrary to Ch III of the Constitution. The application was filed in the High Court on 14 February 2017. That argument has now been rejected and is unavailable to Mr McLachlan, even if he had also relied upon it: Falzon v Minister for Immigration and Border Protection [2018] HCA 2. Mr McLachlan was informed by the Court that delivery of judgment in this matter would await the decision in the High Court of Falzon.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. |
Associate:
Dated: 20 February 2018
