FEDERAL COURT OF AUSTRALIA

Charlie v Minister for Immigration and Border Protection [2018] FCA 607

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted leave to rely on the amended proposed originating application filed 22 November 2017.

2.    The application for an extension of time within which to seek judicial review of the respondent’s decision made on 5 October 2016 be refused.

3.    The applicant pay the respondent’s costs, to be agreed or assessed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    This is an application for an extension of time within which to seek judicial review of a decision by the Assistant Minister for Immigration and Border Protection (the Minister) made under s 501CA of the Migration Act 1958 (Cth) by which the Minister decided not to revoke an earlier decision of a delegate to cancel the applicant’s visa on character grounds. If such an extension of time were granted, the applicant seeks a writ of certiorari to quash the Minister’s decision and a writ of mandamus requiring the Minister to determine the decision according to law.

2    On 6 October 2017, the court made orders listing for hearing the application for extension of time, and in the event that the extension were granted, the judicial review application.

The facts

3    The applicant was born in 1970 on Daru Island, Papua. At the time, Papua was administered by Australia as a Possession of the Crown and as part of an administrative union known as the Territory of Papua and New Guinea. Papua was, until 1975, part of “Australia” for the purposes of the Australian Citizenship Act 1948 (Cth) (the Citizenship Act). The applicant’s grandparents were also born in Papua. He was five years old when, in September 1975, Papua New Guinea (PNG) became an independent sovereign State.

4    By virtue of the Citizenship Act, because he was born in Papua, the applicant was a citizen of Australia at the time of his birth. However, that right of citizenship did not entitle him to enter or reside in Australia. Before Independence Day in September 1975, in order to enter or reside in Australia, the applicant, like all people in a similar position, was required to obtain an entry permit.

5    When PNG became an independent sovereign state in 1975, the applicant automatically acquired PNG citizenship by virtue of the fact that he had two grandparents who were born in Papua: see s 65(1) of the Constitution of the Independent State of Papua New Guinea (the PNG Constitution) (which provided that “[a] person born in the country before Independence Day who has two grand-parents who were born in the country or an adjacent area is a citizen”). For a detailed history of the changes to citizenship effected by the PNG Constitution in 1975, see Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte AME (2005) 222 CLR 439 at 445-455, [1]-[23].

6    I note for completeness that Part IV of the PNG Constitution relevantly provides in s 64(1) that “no person who has a real foreign citizenship may be or become a citizen [of PNG]”. In circumstances where the applicant was born in “Australia”, this may appear at first glance to preclude the applicant from being deemed a PNG citizen under the PNG Constitution. However, the applicant was not a “real foreign citizen” because, although he was an Australian citizen by virtue of his birth in Papua, he had never been granted a right to permanent residence in Australia: see s 64(4) of the PNG Constitution.

7    The applicant moved to Darnley Island in 1976. Darnley Island was, and is, part of Australia. In 1982, the applicant was granted an Australian Permanent Entry Permit, which later became a “Class BF transitional (permanent) Visa” (the visa).

8    In May 1996, the applicant commenced service with the defence forces of the Commonwealth of Australia as a private in the Army Reserves. He applied for Australian citizenship in March 1997, which was granted in February the next year, when, it seems, he was still serving in the Army Reserves. In May 2001, however, before Australian citizenship was conferred, the grant of citizenship was revoked on character grounds.

9    As an adult, the applicant committed a number of serious criminal offences. In 2007, for example, he was convicted of an offence involving a sexual attack on an elderly woman in her home and sentenced to 4 years in jail. He has been detained, and remains, in immigration detention since he was released from jail.

10    On 10 June 2015, a delegate of the respondent made a decision mandatorily to cancel the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth). Section 501(3A) provides:

The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii) paragraph (6)(e) (sexually based offences involving a child); and

(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

11    The fact and significance of s 70(1)(e) of the PNG Constitution was not known by the applicant or the delegate (or the Minister).

12    The delegate was satisfied that the applicant did not pass the character test because of the operation of s 501(7)(c) (substantial criminal record) (s 501(3A)(a)(i)) and because he was serving a sentence of imprisonment on a full-time basis (s 501(3A)(b)). It follows that the mandatory terms of s 501(3A) required the Minister to cancel the applicant’s visa (the cancellation decision).

13    The applicant was told that he could request revocation of the decision to cancel his visa. The applicant then sought such revocation.

14    On 31 March 2016, the Minister’s Department, the Department for Immigration and Border Protection (the Department), sent further information to the applicant that might have been taken into account when making its decision as to whether to revoke the cancellation decision and invited comment.

15    On 19 April 2016, the applicant responded to the invitation to comment.

16    On 23 September 2016, the applicant returned to the Department a completed Personal Circumstances Form.

17    On 5 October 2016, the Minister made a decision under s 501CA(4) of the Act not to revoke the cancellation decision.

18    Section 501CA of the Act relevantly provides:

Cancellation of visa--revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for making the original decision; and

(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3) As soon as practicable after making the original decision, the Minister must:

(a) give the person, in the way that the Minister considers appropriate in the circumstances:

(i) a written notice that sets out the original decision; and

(ii) particulars of the relevant information; and

(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

(5) If the Minister revokes the original decision, the original decision is taken not to have been made.

…

19    The Minister’s decision was recorded in a statement of reasons signed on 5 October 2016.

20    It is not necessary to record the Minister’s reasons for declining to revoke the cancellation decision. It is sufficient for the purposes of this application to note that the decision to do so was premised on the fact that the applicant claimed on multiple occasions, and the Minister accepted (particularly in light of its own assessment that the applicant did not hold Australian citizenship), that the applicant was and remained a citizen of PNG.

21    Sometime after the decision not to revoke the cancellation decision was made, someone (it seems that it was probably a lawyer then assisting pro bono on the applicant’s behalf) unearthed the fact that s 70(1)(e) of the PNG Constitution, at all relevant times, provided that “ … a citizen who has reached voting age and is of full capacity who – (e) enters or serves in the armed forces of another country, except with the express approval of the Head of State, acting with, and in accordance with, the advice of the National Executive Council … loses his citizenship”.

22    It follows, assuming that the applicant had not served in the Australian Army “with the express approval of the Head of State [of PNG]” (of which there was, obviously, no evidence before the Minister), that the applicant in all likelihood lost his citizenship when he “entered” or “served” in the Australian Army. If that is so, then the applicant, not being a citizen of any other country, would be stateless and would, therefore, face the prospect of indefinite immigration detention in Australia.

23    The applicant now seeks to contend that the Minister committed jurisdictional error because he did not consider, or take into account, something that he did not know (that the applicant was, or may be, stateless), and which was contrary to the applicant’s own case (that he was a citizen of PNG) and that the Minister did not therefore take into account the prospect of him being indefinitely detained in immigration detention. He also seeks leave, pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), to adduce further evidence of the relevant provision of the PNG Constitution.

Application for extension of time

24    The applicant sought leave to rely on an amended proposed originating application filed 22 November 2017 and sought, by way of affidavit and in oral submissions, an extension of time within which to bring an application for review. The Minister opposed the leave, not on the basis of prejudice, but on the basis that the substantive grounds were not of sufficient merit to warrant an extension of time. The application contains these grounds (paragraph 1 fell away: see Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61; [2018] HCA 2):

2. The Respondent erred in his exercise of jurisdiction as he made an error of law amounting to jurisdictional error.

Particulars

a. The Respondent wrongly found that the Applicant is a Papua New Guinean Citizen and has a right to return to Papua New Guinea.

b. This is because:

i. The Applicant served in the Australia Army Reserve for a period of time (6 years); and

ii. By operation of s 70 of the PNG Constitution, any citizenship which the Applicant may have held in the past was automatically revoked when he served in the Australian Army Reserves.

c. The Respondent was on notice of the uncertainty surrounding the citizenship. The Respondent was on notice that the Applicant arrived in Australia in the 1970s with his family, prior to Papua New Guinean independent in 1975, and claimed in 2002 to be an Australian citizen. The Respondent was on notice of the Applicant’s enrolment in the Australian Army.

d. The Respondent was on notice that the Applicant was not represented. It is unreasonable to expect an unrepresented applicant to be familiar with foreign citizenship laws. It is reasonable to expect that the Respondent would be aware of these issues, or should make enquiries regarding these issues where doubt patently arises on the facts. The Respondent made an error determinative of the outcome regarding an issue central to the exercise of the power.

3. Further and in the alternative, the Respondent erred in his exercise of jurisdiction as he failed to take into account a mandatory relevant consideration.

Particulars

a. By wrongly finding that the Applicant is a citizen of Papua New Guinea, the Respondent failed to consider the possible effects of revoking the Applicant’s visa if he is in fact stateless that he faced the prospect of indefinite detention.

4. The Respondent's exercise of the power to revoke the mandatory cancellation of the Applicant’s visa was unreasonable and therefore not authorized by s 501CA of the Act.

Particulars

a. The Applicant claimed on several occasions that he was a citizen of Australia.

b. If the Applicant was correct about this he was therefore not a citizen of PNG.

c. On 23 March 2006 a delegate of the Respondent provided “advice on the citizenship status of” the Applicant, by reference to inter alia the Australian Citizenship Instructions which contained references to the PNG Constitution.

d. If the Applicant were a citizen of PNG he lost that status and became stateless because he served in the Australian Army reserves around 1996-97. The Applicant informed the Department of this service in 1997, in his application for Australian citizenship.

e. The delegate of the Respondent had access to all the material which was needed to show that the Applicant was not a citizen of PNG but unreasonably failed to make that conclusion.

f. Despite being on notice as to these matters, the Respondent unreasonably failed to ascertain the fact as to the Applicant's statelessness by reference to material which was readily available to him.

25    Properly understood, the grounds and the submissions made in respect of them (in oral argument and in subsequently filed written submissions) raise three interrelated issues of substance.

26    The first issue is whether there was anything in the material before the Minister that indicated that the applicant faced a prospect of indefinite detention, which the Minister was obliged to consider in coming to his decision not to revoke the cancellation decision. (The Minister did not dispute the proposition that, if the case advanced by the applicant before the Minister had unavoidably or squarely raised the question whether he would face the prospect of indefinite detention in Australia if the cancellation were not revoked, that was something that he would have been bound to have considered: cf. NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; Caric v Minister for Immigration and Border Protection [2017] FCA 1391 at [12]-[16]).

27    The second issue is whether the applicant should be given leave to rely on the further evidence of the PNG Constitution, and s 70(1)(e) in particular, pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), which provides that: “[t]he Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate”.

28    The third issue is related to the second – namely, whether the Minister was entitled to rely on the material before him, including, in particular, the applicant’s confirmation that he was a citizen of PNG, and if that is so, whether there is any utility in admitting further evidence.

Issue one

29    Counsel for the applicant contended that there was material before the Minister that suggested that the applicant did contend that he was an Australian citizen. The evidence before the Minister included a letter dated 31 March 2008 in which the applicant wrote: “I am responding to your letter dated 17 March 2008 whereby you are still stating that I am a PNG resident. The information you have is incorrect … At the time of applying for citizenship I was advised to do so by a government official, not realising that there was no need as I am now an Australian citizen by birth”. In the same letter the applicant told the Department: “and I also served in the Australian military and have a tax file number.” Counsel submitted that the evidence of the correspondence from the applicant to the Department showed that the applicant was confused or “uncertain in his own mind” about his citizenship, because he later asserted he was a PNG citizen. Counsel contended that that should have put the Citizenship Section of the Queensland State Office on notice of a need to clarify the actual position of his citizenship. It was these factors that, it was submitted, meant that the delegate “had access to all the material which was needed to show that the Applicant was not a citizen of PNG but unreasonably failed to make that conclusion”.

30    I cannot accept that submission. It is clear that by the time that his application came to be considered by the delegate, the applicant had expressly disavowed any suggestion that he was an Australian citizen, instead insisting that he was a citizen of PNG. In a letter dated 19 April 2016, for example, the applicant wrote to the Department “responding about a matter that has to be resolved” and to correct “errors” in his previous application. One of the errors he sought to correct was that he was born on Daru Island, not Thursday Island, and that his grandparents were born in PNG - which necessarily means that he is PNG citizen. This is consistent with what he told the Department representative in his compliance interview – that is, that he is a citizen of PNG. It is also clear from the decision of the Assistant Minister that the applicant’s case was founded on the fact that he was a citizen of PNG. The Assistant Minister’s reasons, for example, include the following:

19. In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the impediments that [the applicant] will face if removed from Australia to his home country of Papua New Guinea …

…

21. [The applicant] advised that he cannot return to Papua New Guinea because he has been raised in Australia, has not lived in Papua New Guinea and does not know anyone there.

22. I accept that [the applicant] may experience emotional and financial hardship if removed from Australia and separated from his family … However as a citizen of Papua New Guinea, [the applicant] will have access to government support services equal to that of other citizens of that country which will assist his reintegration.

(Emphasis added).

31    In any event, the critical fact remains that the applicant never told the delegate or the Minister about the existence of s 70 of the PNG Constitution. Absent that fact, the proverbial “shoe” could never have dropped, because there was no occasion to consider the significance in relation to the applicant’s PNG citizenship of the fact that he had served in the Australian military. For these reasons alone, the grounds particularised in grounds 2(a), (b), (c) and 4(a)-(f) cannot succeed.

Issue two

32    The Minister opposed the granting of leave to adduce fresh evidence about the PNG Constitution.

33    In order for an appellate court to receive further evidence, two conditions must be satisfied. First, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial. Secondly, the evidence must be such that very probably the result would have been different. “It is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, ‘probability’, and at the highest, ‘certainty’, of a different result, has been used …” (citations omitted): see NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [43].

34    Counsel for the Minister submitted that “there is no doubt that the evidence was available”. Although acknowledging the applicant was at the relevant time unrepresented, the Minister submitted that the evidence about s 70, and its connection with the fact that the applicant had served in the Australian Army, “could with reasonable diligence have been produced to the Minister in response to the invitation to make representations about revocation of the original decision made under s 501(3A). As the applicant acknowledges, s 70 of the PNG Constitution was at all relevant times in the form referred to in the applicant’s submissions.”

35    As to whether admission of the evidence would “probably” or “certainly” have led to a different result, the Minister submitted that he would have needed to have been satisfied not only as to the applicant’s service in the army but additionally with the qualification in s 70(1)(e), namely that the applicant would not have lost his PNG citizenship if his service in the Australian army had been given “with the express approval of the Head of State, acting with, and in accordance with, the advice of the National Executive Council.” The Minister said that, in the absence of evidence on that question, it could not be known or even guessed whether the applicant had, in fact, automatically forfeited his PNG citizenship.

36    I am bound to accept those submissions. In my view, in a case such as this, it is not open to the court to admit fresh evidence, for the purpose of making findings of fact, simply to contradict a finding of fact made by the Minister – even more so when, as here, it is sought to be admitted to contradict the very thing that the applicant himself insisted was the fact, namely, that he was a citizen of PNG. As the Full Court explained in Minister for Immigration and Border Protection v Tesic (2017) 251 FCR 23 at [48]-[55]:

The Minister had before him material on which to base his findings. Those findings could not be suggested to be legally unreasonable on the material before the Minister. The findings by the Minister were not as to a jurisdictional fact. There was no relevant procedural error alleged. Evidence is not to be adduced on judicial review merely on the basis that it goes to a mandatory consideration, even assuming that the period over which the respondent trafficked in dangerous drugs was a mandatory consideration.

In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 McHugh, Gummow and Hayne JJ said, at [72]-[73] (omitting footnotes):

The considerations that are, or are not, relevant to the Tribunal’s task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider. ...

This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.

Put shortly, it is not permissible to conflate evidence with mandatory considerations.

In our opinion, in the present circumstances evidence was inadmissible before the primary judge to contradict the material on which the Minister made his findings of fact …

It is to be recalled that in Waterford v Commonwealth (1987) 163 CLR 54 Brennan J said at 77–78:

A finding by the A.A.T. on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the A.A.T. Act confers on a party to a proceeding before the A.A.T. a right of appeal to the Federal Court of Australia “from any decision of the Tribunal in that proceeding” but only “on a question of law”. The error of law which an appellant must rely on to succeed must arise on the facts as the A.A.T. has found them to be or it must vitiate the findings made or it must have led the A.A.T. to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact.

The position of the Minister as primary decision-maker on judicial review for jurisdictional error can be no more favourable to the admission of fresh evidence than the position in respect of the AAT on an appeal limited to a question of law. The Minister’s findings were not vitiated by an error of law.

In Szelagowicz v Stocker (1994) 54 IR 302 at 308,, in relation to the broader “no evidence” grounds in s 5(1)(h) and (3)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the plurality said: “[Those grounds] do not permit evidence to be adduced to contradict either evidence or material which was before the decision-maker or an inference which was available to be drawn from that evidence or material.” See also McCormack v Deputy Commissioner of Taxation Large Business & International (2001) 114 FCR 574 at [40]. This was not a “no evidence” case, as to which see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.

…

In our opinion it was not open to the primary judge to admit fresh evidence, and then make findings of fact, which contradicted the Minister’s findings. The reasoning of the primary judge … shows that her Honour was there directing herself to impermissible merits review.

(Emphasis added).

Issue three

37    Issue three is a related question, namely whether, even assuming leave to adduce further evidence were to be given, there would be any utility in doing so. The answer to that question involves similar considerations to issue two. The Minister submitted that his “decision was based on the material that was available to him, including material supplied by the applicant. The applicant himself had made it clear in that material that he was a PNG citizen. … The Minister was entitled to rely on the material before him including in particular the applicant's confirmation that he was a citizen of PNG”. In my view, that proposition must also be accepted. See Fraser v Minister for Immigration and Border Protection (2015) 145 ALD 337; [2015] FCAFC 48 at [17] (per Kenny, Buchanan and Rangiah JJ) (“The Minister’s decision was based on all the material which was available to him, including material supplied by the appellant. He was not under a free standing duty to make further enquiries. The fact that further enquiries were not made did not signify that the Minister had failed to carry out the statutory task”); Viane v Minister for Immigration and Border Protection [2018] FCA 3 per Bromwich J at [29] (“Given that the claim relied upon has not been demonstrated to exist, nothing turns on the fact that such a claim was not considered. There was no failure of the kind alleged, such that the question of jurisdictional error does not arise”).

38    As the Minister’s counsel put it succinctly: “The Minister … was not required to consider a claim that was never made.” I agree. See Abebe v Commonwealth of Australia (1999) 197 CLR 510, 576 at [187] (per Gummow and Hayne JJ) (“The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention ... The Tribunal must then decide whether that claim is made out”).

39    For those reasons each of the grounds sought to be advanced to challenge the Minister’s decision would be bound to fail. Such an application could only succeed if jurisdictional error could be shown. No jurisdictional error can be made out in circumstances where the essence of the case sought to be put is that the Minister was required to consider a claim that was never made. For those reasons, it would be futile to admit the further evidence of s 70 of the PNG Constitution.

Application for extension of time

40    The Court has a general power to extend a time fixed by the Federal Court Rules: r 1.39, Federal Court Rules 2011 (Cth). While the Court has an unfettered discretion to grant an extension of time in the circumstances, the relevant considerations for the Court in determining such an application include the length of the delay, the reasons for the delay, any prejudice to the respondent and the merits of the proposed appeal: see generally AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 341 at [10].

41    For the reasons given above, in my view, the proposed appeal has no merit. In those circumstances, it is not necessary to consider the other factors that may be taken into account in exercising the court’s discretion.

42    The application for an extension of time within which to seek judicial review of the decision will accordingly be refused.

Associate:

Dated:    3 May 2018