FEDERAL COURT OF AUSTRALIA

Huynh v Minister for Home Affairs [2018] FCA 665

ORDERS

THE COURT ORDERS THAT:

1.    The applicant's application for an interlocutory injunction is refused.

2.    The applicant is to pay the respondent's costs of the injunction 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

BANKS-SMITH J:

Background

1    On 9 May 2018 I heard an urgent application by Mr Huynh for an interlocutory injunction to restrain the Minister for Home Affairs from deporting him from Australia. I made orders at the end of the hearing dismissing the application. These are my reasons.

2    Mr Huynh told me that he had been given notice on 2 May 2018 that he was to be removed on 10 May 2018.

3    Mr Huynh sought the injunction pending the hearing of an application for an extension of time for leave to appeal and an appeal from the decision of Barker J in Huynh v Minister for Immigration Border Protection [2016] FCA 314, in which his Honour dismissed an application for judicial review of the decision of the Minister to cancel his resident return visa under s 501(2) of the Migration Act 1958 (Cth). The application for an extension of time and leave to appeal was filed on 7 May 2018.

Chronology leading to cancellation of visa

4    The following chronology is taken from the primary judge's reasons.

5    Mr Huynh is a citizen of Vietnam who arrived in Australia on a refugee visa as a 16 year old dependant of his aunt.

6    He was granted a resident return visa. Between 1994 and 2000 he was convicted of offences in New South Wales and received a warning that his visa may be revoked. In 2001 he relocated to Western Australia.

7    In December 2002 his visa was cancelled. He then went through an appeal process which was ultimately unsuccessful and he was detained in immigration detention. However, in 2007 he was granted another resident return visa. By that time he had a partner and children.

8    In December 2010 Mr Huynh was convicted of assault with intent to rob and sentenced to 2 years imprisonment, wholly suspended for 12 months.

9    In June 2015 he received notice of the intention of the Department of Immigration and Border Protection to consider the cancellation of his visa.

10    The Minister cancelled Mr Huynh's visa under s 501(2) on 14 October 2015. The Minister took into account countervailing considerations but decided that Mr Huynh represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the countervailing considerations.

Judicial review before the Federal Court

11    As noted, Mr Huynh sought judicial review from the Minister's decision by application to the Federal Court. That application was refused on 13 April 2016. Mr Huynh was represented by senior counsel at the hearing.

12    Four grounds of review were pressed before the primary judge. Grounds 1 to 3 related primarily to an argument that cancellation of his visa was disproportionate to the risk of future harm to the community and was legally unreasonable. Ground 4 alleged jurisdictional error in that the Minister had proceeded on the basis Mr Huynh's sentence for robbery was one of incarceration and so a sentence of last resort, when the applicant had received a suspended sentence. The grounds of review before the primary judge are set out in full at Huynh v Minister for Immigration Border Protection [13].

Consideration of prospect of extension of time application

13    Taking into account that the primary judge's reasons were delivered on 13 April 2016, and under the Federal Court Rules 2011 (Cth) a notice of appeal should have been filed within 21 days, Mr Huynh's application is approximately two years late.

14    On any measure, that is an excessive period of time and Mr Huynh needed to address the reasons for that delay. Mr Huynh did not file an affidavit that dealt with delay. However, he made oral submissions and drew attention to various difficulties he faced in bringing an application for an appeal. Primarily, he expressed concern that he had originally had a lawyer who was advising him with respect to a protection visa application and Ministerial intervention and also, as he understood it, any appeal from Barker J's decision. He said that his lawyer stopped acting for him in December 2017 and he was left with no knowledge of how he should pursue the appeal. He also said that he had trouble in finding a lawyer and was confused by the process.

15    Mr Macliver, who appeared for the respondent, informed me that Mr Huynh in fact brought an application for a protection visa which was refused. On review to the Tribunal, the decision to refuse the protection visa was affirmed and an application to the Federal Circuit Court for judicial review was dismissed on 18 August 2017. Taking those matters into account, and assuming that Mr Huynh was represented by a lawyer during that period, there is still no explanation as to why the appeal from Barker J's decision was not pursued. More to the point, there is no explanation other than the common difficulties faced by persons in detention as to why no steps have been undertaken since December 2017 to progress any appeal.

16    In BNV15 v Minister for Immigration and Border Protection [2017] FCA 1048, McKerracher J summarised relevant statutory provisions with respect to appeals and noted that, for example, where an applicant is delayed in instituting an appeal by more than 9 months it would require an exceptional case before an extension of time should be granted. His Honour noted as follows (at [23]):

The applicant's affidavit does not provide any satisfactory explanation for the whole of the period of delay. The fact that he was in immigration detention, has not been able to engage a lawyer, and that his English is not good, does not justify the granting of an extension of time. Many persons who are in the same position as the applicant are able to bring applications and appeals with the required time limits. However, I would infer that there was some degree of confusion on the part of the applicant as to his rights.

17    His Honour did not consider on the facts of the case that there was a satisfactory or persuasive explanation for the full extent of the delay: see also Minister for Immigration and Multicultural Affairs v Kabail [1999] FCA 344; (1999) 93 FCR 498; QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7].

18    In general, the longer the delay the more persuasive the explanation must be: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] (delay of 18 months considered excessive).

19    Taking into account the principles discussed in those cases, the two year delay on the part of Mr Huynh is clearly excessive and there is no satisfactory explanation for it. In the circumstances of this case, it would weigh heavily against any extension of time to appeal being granted.

20    I have also considered whether there might be arguable grounds of appeal. The proposed grounds of appeal set out in Mr Huynh's application are as follows:

1.    His Honour did not take into consideration relevant laws, facts, and regulations.

2.    His Honour [took] into consideration irrelevant laws, facts, and regulations.

3.    His Honour did not take into consideration the United Nations convention for the rights of the child.

4.    His Honour did not take into consideration the fact that the applicant continued to reside in the community for about 5 years after his last conviction.

5.    His Honour ignored the [misinterpretation] of law by the first respondent.

6.    His Honour did not take into consideration the applicant's family rights as unit of the community and the hardship they will suffer after losing the family's head.

21    Mr Huynh did not file an affidavit that addressed the proposed grounds but he made lengthy oral submissions. In particular, I asked him about the nature of his complaints with respect to grounds 1, 2 and 5. He was unable to enunciate any particular error. Taking into account that those grounds are entirely without particulars, on the face of it, they would be dismissed. Mr Macliver referred to the principle that failure to particularise a ground of review is sufficient basis for it to be dismissed: see McKerracher J's collection of the relevant cases in MZARG v Minister for Immigration and Border Protection [2018] FCA 624 at [25]. Mr Huynh's grounds are not particularised in any manner which makes them meaningful or identifies any error in the primary judge's judgment.

22    As to proposed grounds 3 and 6, I invited Mr Huynh to address me on the matters that he considered the Minister or the primary judge had failed to consider in the context of his position of a father of two minor children and the effect on his family of revocation of his visa. Mr Huynh made lengthy oral submissions as to the difficulties that will be faced by his wife and children in Western Australia should he be deported. I also asked Mr Huynh if there was anything he wished to raise as to proposed ground 4 and he referred to his employment and conduct within the community and that he has made efforts to change his behaviour.

23    I note from the Minister's Reasons (as set out at Huynh v Minister for Immigration Border Protection [12]) that the issue of Mr Huynh's role in the community post his offending and the effect of his removal on his children and family unit were addressed by the Minister: paras [38] - [43] and paras [52] - [54] of the Minister's reasons.

24    Relevantly, at paras [25], [27], [29], [34] and [36] of his Reasons, the Minister also considered Mr Huynh's conduct following his conviction, his prospects of rehabilitation, his general conduct in the community since the expiry of his suspended prison sentence, his insight into his offending, the fact he has not been convicted of any further criminal offences since December 2011 and the fact he complied fully with his parole order.

25    Those respective issues and the manner in which they had been considered and weighed by the Minister were considered by the primary judge, in particular at paras [48]-[54] and [55]-[56], [80]-[104], [106]. The primary judge found that taking into account the Minister's discretion, it was not demonstrated that the decision was so disproportionate to the purpose of the Minister's power that it was legally unreasonable.

26    Taking into account that the matters raised by the proposed grounds of appeal go to the merits of the decision of the Minister, that such matters were clearly contemplated and considered by the Minister and that the proposed grounds of appeal do not address the manner in which it is said that the primary judge erred in his review of the Minister's reasoning, I do not consider the proposed grounds raise any arguable appellable error by the primary judge. I have not overlooked the question of the balance of convenience (as to which no submissions were made) but in the current circumstances of a lack of a serious question to be tried, that issue would not change my determination.

27    In the circumstances I declined the application for interlocutory relief.

Associate:

Dated:    11 May 2018