FEDERAL COURT OF AUSTRALIA

Rere v Minister for Immigration and Border Protection [2018] FCA 846

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is dismissed.

2.    The applicant pay the respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    On 11 December 2017, the applicant filed an application under s 477A(2)(a) of the Migration Act 1958 (Cth) for an extension of time within which to lodge an application for review of a decision of the Assistant Minister for Immigration and Border Protection to cancel the applicant’s Class TY, Subclass 444 Special Category (Temporary) visa pursuant to s 501(2) of the Act.

2    Section 476A(1)(c) confers original jurisdiction on this Court to review the Minister’s cancellation decision. Pursuant to s 477A(1), an application for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(c) in relation to a migration decision must be made to the Court within 35 days of the “date of the migration decision”. The “date of the migration decision” is defined by s 477(3)(d) as “the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate”.

3    The Minister’s decision to cancel the applicant’s visa was set out in a document dated 7 September 2017. However, it is common ground that “the date of the written notice of the decision” was 24 October 2017, the letter constituting that written notice being delivered to the applicant by hand on the same day. Accordingly, the “date of the migration decision” was 24 October 2017. It follows that the applicant was required to lodge any application for review of the Minister’s decision within 35 days of that date, being 28 November 2017.

4    The applicant lodged his application for an extension of time and accompanying affidavit electronically at 10:35am on 11 December 2017. Both documents were stamped as filed two days later, on 13 December 2017. Pursuant to r 2.25(3)(a) of the Federal Court Rules 2011 (Cth), the application is taken to have been filed the day it was lodged, on 11 December 2017. The applicant therefore requires an extension of 13 days in which to apply to this Court for review of the Minister’s decision under s 477A(1).

5    The Court has power to grant an extension under s 477A(2).

BACKGROUND

6    The applicant is a citizen of New Zealand. He arrived in Australia as one-month-old child on 6 March 1994 and has departed and returned to Australia on eight separate occasions. He has a four-month-old son with his former partner.

7    The applicant pleaded guilty to contravening an apprehended violence order (domestic) and was found guilty of common assault and damaging property, those offences occurring on 8 September 2014. On 2 June 2015, at the age of twenty-one, the applicant was sentenced in respect of those offences in the Local Court of New South Wales to 6 months for damaging property, 12 months for assaulting a named individual and 15 months for contravening a domestic violence order. The sentences were to be served concurrently. All sentences were suspended upon entering good behaviour bonds. He had imposed on him a final domestic violence order, for a period of four years, protecting a named individual who had by that time been subject to domestic violence at his hands on three separate occasions. He was also required to serve 150 hours of community service.

8    By letter dated 30 March 2017, received by the applicant on that day, the Minister notified the applicant of his intention to consider cancelling the applicant’s temporary visa under s 501(2) of the Act. No response was received from the applicant to the Minister’s letter. A similar letter, dated 19 October 2016, had been sent to the applicant, but had been returned to sender.

9    On 28 June 2017, the Minister sent a further letter, inviting the applicant to comment on further information the Minister had received, being an email and letter from Fairfield Community Corrections, both dated 27 June 2018. This letter to the applicant was returned to sender and no response was received from the applicant.

10    On 7 September 2017, the Minister cancelled the applicant’s visa under s 501(2) of the Act on the basis that the applicant did not pass the character test as defined in s 501(6)(a) of the Act by reason of his having been “sentenced to a term of imprisonment of 12 months or more”: s 501(7)(c). The fact that the sentence was suspended does not alter the fact that s 501(7)(c) applied; it is nonetheless a sentence of imprisonment and is regarded as a very serious form of punishment: Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [73], per Allsop CJ, Griffiths and Wigney JJ.

11    As noted above, the written notice of the cancellation of the visa, dated 24 October 2017, was received on that day by the applicant.

APPLICATION FOR EXTENSION OF TIME

12    The application for an extension of time was filed on 11 December 2017 and supported by an affidavit sworn by the applicant on 2 November 2017. Annexed to the affidavit was a document titled “Draft Originating application for review of a migration decision”, which set out the grounds of review on which the applicant proposed to rely, should an extension of time be granted.

13    On 8 February 2018, Markovic J granted the applicant leave to file an amended application for an extension of time giving complete particulars of all grounds of review and affidavit material upon which he intended to rely by 6 April 2018. On 26 April 2018, the Registry received a fax from the applicant of a document titled “Amended application for extension of time” (amended application). The amended application was accepted for filing the following day. It comprised:

(1)    the first three pages of the original application filed on 11 December 2017;

(2)    the orders of Markovic J dated 8 February 2018; and

(3)    the first and second pages of the applicant’s affidavit sworn on 2 November 2017.

14    The amended application did not purport to amend any of the grounds of review set out in the draft application for review, which was annexed to the applicant’s affidavit filed on 11 December 2017. Nor did it include further particulars in relation to any of those review grounds, or any additional affidavit material. Each of the documents comprising the amended application was identical to, or in substance the same as, a document which had already been filed.

15    Where, as is the case here, an application for review is not made within the 35 day period prescribed by s 477A(1), s 477A(2) provides this Court with a discretion to extend the time within which an application may be made. Section 477A(2) provides:

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.

16    In considering whether to exercise the discretion to extend time under s 477A(2), and recognising that the discretion is unconfined and that each case turns on its own facts, relevant considerations generally include: the length of the delay; the applicant’s explanation for the delay; whether the application for review would have any prospects of success if an extension of time were granted; and the prejudice, if any, which the respondent might suffer if an extension were granted: Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [26] (Siopis, White and Perry JJ); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9; Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32] to [39], per Griffiths J (with whom Edmonds J agreed).

17    The assessment of the prospects of success of the proposed review arises in the context of an interlocutory application for an extension of time under s 477A(2), and caution is required in assessing the merits at that interlocutory stage of the proceeding, and in determining what significance or weight to give to the resulting conclusion: Mentink at [37] and [38], per Griffiths J, referring to the decisions of French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98 and Katzmann J in ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at [111]; see also: MZABP v Minister for Immigration and Border Protection (2014) 242 FCR 585 at [62]-[63], per Mortimer J. In considering the question of merits, the applicant’s proposed grounds of review 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: Guo at [27]. If it appears from such an examination that the proposed appeal has no realistic prospect of success, it would not ordinarily be in the interests of justice to grant an extension of time. I proceed with the analysis on this basis.

Delay and explanation for delay

18    As mentioned, the applicant requires an extension of 13 days in which to apply to this Court for review of the Minister’s decision under s 477A(1). Proper recognition must be afforded to the fact that the legislature has imposed a particular time limit, in this case 35 days. I do not consider a delay of 13 days, of itself, necessarily to weigh particularly heavily against the exercise of the discretion to extend time. Nevertheless, there must be some reason to extend time and it must be “in the interests of the administration of justice” to do so: s 477A(2). The length of the delay is related to the explanation for that delay in that the longer the delay, the more satisfactory the explanation would need to be: Jess v Scott (1986) 12 FCR 187 at 195, per Lockhart, Sheppard and Burchett JJ; Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [14], per Farrell J. 

19    In his affidavit sworn on 2 November 2017, the applicant stated at [2]-[5]:

2.    I am making this affidavit in Support of my Application for Extension of Time to appeal the decision by the Minister to cancel my VISA. I have attached a copy of the Ministers decision. I am seeking to remain in Australia, I have a 4 year old son that resides with his mother here in Australia and being deported to New Zealand would have devastating effects on myself and restrict my support in raising my son, as I have always been a part of his life from birth. I have lived in Australia since I was 3 months old and do not have a family unit in New Zealand as my immediate family all reside in Australia.

3.     A copy of my Draft Originating Application for Review of a Migration Decision is attached to this Affidavit.

4.    To my best knowledge I sent my forms in several times and it kept getting sent back saying INCOMPLETE, I had troubles understanding what to fill in and troubles getting on the computer due to limited resources at Villawood detention centre.

5.     I also had difficulty obtaining the correct forms and details which I did not have considering I am in the Villawood Immigration Detention Centre. I do not have legal representation and have been unclear on what exactly is required.

20    The date on the draft application for review of a migration decision, as annexed to the applicant’s affidavit, is 2 November 2017. The applicant is self-represented and was in detention. These are facts which might show why the applicant may have faced difficulty in lodging his application earlier. However, as the Minister pointed out in his written submissions, there is no evidence before the Court of the applicant’s first attempt to lodge his application, how he attempted to send “forms” various times, or evidence of his application being returned.

21    Although I do not regard the explanation as particularly satisfactory, I would not refuse an extension on this basis, given the relatively short delay.

Prejudice

22    The Minister did not claim in his submissions that prejudice would be suffered if time were extended. The mere absence of prejudice to the respondent does not justify, on its own, the grant of an extension of time: Mentink at [33].

Merits of proposed application for review

23    In his draft application for review, which was annexed to his affidavit filed on 11 December 2017, the applicant advanced the following grounds of review:

1.    Ministers decision was legally unreasonable.

2.    The Minister has not taken into account my remorse and rehabilitation sought from crime committed, family and relationship considerations, being primarily the care of my 4 year old son in which I have every intention of supporting.

3.    I have contributed to the community by being previously employed.

24    I consider each of the proposed grounds below.

Ground one

25    Ground one states:

Ministers decision was legally unreasonable.

26    The Minister’s decision to cancel the applicant’s visa was based on several identified considerations, including:

(1)    the applicant having been sentenced, on 2 June 2015, to 15 months imprisonment, suspended on entering into a good behaviour bond;

(2)    the failure of the applicant to satisfy the Minister that the applicant did pass the character test;

(3)    the “very serious” nature of the applicant’s violent offences;

(4)    the applicant’s former partner being subjected to repeated acts of domestic violence over a period of time, more specifically on 14 February 2014, 7 April 2014 and 8 September 2014;

(5)    the final domestic violence order against the applicant, protecting his former partner for a period of four years;

(6)    the fact that the custodial sentence was suspended because the applicant was actively involved in rehabilitation;

(7)    the fact that between 2011 and 2015, the applicant had been convicted or found guilty of prohibited drug supply, use of offensive language in/near a public place/school and not producing evidence of concession entitlement;

(8)    the fact that the Fairfield Community Corrections stated that the applicant’s risk rating was assessed as medium risk of reoffending as per the Level of Service Inventory – Revised;

(9)    the fact that the applicant had refrained from reoffending for some three years, but that he was a repeat offender, had a pattern of domestic violence-related offences and had offended despite an apprehended violence order against him;

(10)    the fact that the applicant was not in a domestic relationship at the time and that his rehabilitation had not been tested in the same environment as his previous offending; and

(11)    the fact that the applicant was subject to supervision and that his ability to refrain from offending in the community without supervision had only been tested for a relatively short time.

27    The Minister noted that the applicant had a four year old son and concluded that it was in the best interests of the child not to cancel the applicant’s visa. The Minister treated this as a “primary consideration”.

28    The Minister considered various matters, which at least in some respects, were in the applicant’s favour:

(1)    the applicant probably suffered from depression (at [22], [50]);

(2)    the applicant ceased using cannabis in February 2015 when he was 21, a substance he had used daily since the age of 15;

(3)    the applicant had on his own volition engaged with services addressing the cause of his offending behaviour;

(4)    the applicant voluntarily engaged in a research study through the University of New South Wales in March 2015 addressing people with a violent background where the participants were required to take daily medication as well as partake in counselling – the sentencing Magistrate had noted that the applicant had complied with all requirements of the study including participating in psychometric testing, blood testing and psychiatric assessment;

(5)    the applicant was engaged with a drug and alcohol worker through the Salvation Army, was doing very well on the programme, focusing on anger management, and had reported feeling better and being able to cope without resorting to violence;

(6)    the Magistrate had suspended the applicant’s sentences due to voluntary engagement with rehabilitation and involvement in programs;

(7)    the applicant had successfully completed domestic violence counselling and had completed five sessions for men who had been abusive towards their partners; and

(8)    the applicant has completed his 150 hours community service order.

29    The Minister noted that, although the applicant had refrained from reoffending for some three years, the applicant was “a repeat offender and ha[d] a pattern of domestic violence related offences and continued to offend despite an apprehended violence order against him”: at [34]. The Minister concluded that there was an ongoing likelihood that the applicant would reoffend and that if he did engage in further criminal conduct of a similar nature, it could result in conduct that could cause psychological and/or physical harm to a member of the Australian community.

30    The Minister weighed “countervailing considerations” – that is, considerations which favoured not cancelling the visa – against the significant harm he considered could be inflicted if the applicant remained in Australia. In particular, he referred to the best interests of the applicant’s child, the impact on family members, his length of residence in Australia, the hardship he would face in resettling in New Zealand and his contribution to Australia through his employment.

31    Having weighed those matters, the Minister decided to cancel the visa. The weight to be given to the various considerations, for and against, was a matter for him. As Charlesworth J (with whom Flick and Perry JJ agreed) said in Muggeridge v Minister for Immigration and Border Protection (2017) 351 ALR 153 at [41]:

… To the extent that a possibility of recidivism was lawfully identified by the Minister on the material before him, it would be open to the Minister to view that possibility as unacceptable so as to outweigh the very strong considerations that favoured a decision not to cancel the visa.  It matters not that another decision-maker might have reasoned to a different conclusion on the same material upon which the Minister relied, and it forms no part of the role of a court on judicial review to supplant the decision-maker’s view of what is “reasonable” with that of its own: Stretton at [21] (Allsop CJ) …

32    There is no real prospect of a Court concluding that the Minister’s decision was legally unreasonable. There are cases in which this has occurred, for example: Muggeridge (a s 501(2) case) and Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620 (a s 501CA case). However, those cases are quite different from the present. Unlike the position in both Muggeridge and Ogbonna, the Minister identified in his reasons various matters which underpinned his conclusion that the applicant was likely to reoffend and reached that conclusion in a lawful manner – see also: Griffiths v Minister for Immigration and Border Protection [2018] FCA 629. His conclusion – that there was an ongoing likelihood the applicant would reoffend and that, if he did engage in further criminal conduct of a similar nature, it could result in conduct that could cause harm to a member of the Australian community – was not illogical, irrational, arbitrary or capricious on the material before the Minister.

33    It is not to the point that a different decision-maker may have reasoned to a different conclusion on the same material. Having regard to the scope and purpose of s 501(2) of the Act, the decision cannot be said to fall outside the range of possible lawful outcomes: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11]. The Minister’s reasons recount a consideration of factors weighing against and in favour of cancelling the visa. There is no logical disconnect between the findings and the conclusions or in the decision more generally. The Minister’s decision does not lack an intelligible or evident justification and is not irrational, or plainly unjust, having regard to the purpose of the statute and the evidence and facts before the Minister: Stretton at [3].

34    This ground of review could not result in an appeal to this Court being allowed.

Ground two

35    Ground two states:

The Minister has not taken into account my remorse and rehabilitation sought from crime committed, family and relationship considerations, being primarily the care of my 4 year old son in which I have every intention of supporting.

36    Contrary to the terms of this ground, and as set out above, the Minister did consider the applicant’s rehabilitation. At [40], the Minister found that not cancelling the applicant’s visa was in the best interest of the applicant’s son. At [46]-[47], the Minister stated it was highly likely that the applicant had immediate family in Australia, and that cancellation of the visa would have an adverse effect on the applicant’s family and social networks. The applicant’s remorse was not specifically referred to by the Minister, because the applicant did not respond to the Minister’s invitation to make submissions as to why his visa should not be cancelled. It was not otherwise an obvious matter raised as a reason not to cancel the visa on any of the materials before the Minister.

37    This proposed ground must fail.

Ground three

38    Ground three states:

I have contributed to the community by being previously employed.

39    At [48] and [59], the Minister considered the positive contribution of the applicant to the Australian community through his employment. However, in reaching his conclusion, the Minister noted that even strong countervailing considerations (which included his employment as well as the consequences of the decision for minor children and other family members) were insufficient for him not to cancel the applicant’s visa in circumstances where significant harm could be inflicted on the community should he reoffend in a similar fashion. The conclusion reached by the Minister that there was a likelihood that the applicant would reoffend was a conclusion that was open to him on the material before him.

40    This proposed ground has no realistic prospects of success.

Other matters

41    At [52] and [53] of his decision, the Minister stated:

52.    I accept that Mr RERE [the applicant] will suffer significant hardship should he return to New Zealand given his length of stay in Australia and Australian family ties. I accept Mr RERE is likely to suffer emotional hardship should he be separated from his minor son. I accept that given Mr RERE’s history of depression, this emotional hardship may exacerbate any mental health issues. Further Mr RERE is likely to face difficulties re-establishing himself in New Zealand should he have no family support.

53.     However, as a New Zealand national, I find that Mr RERE would be eligible for the same social and financial services available to other New Zealand citizens. I find that Mr RERE will have access to health services in New Zealand should it be required.

42    These conclusions do not disclose jurisdictional error and were reasonably open to the Minister, notwithstanding a lack of any reference to specific evidence in order to arrive at those conclusions, which were based on an understanding that New Zealand is a country with equivalent standards to Australia in the relevant respects: McLachlan v Minister for Immigration and Border Protection [2018] FCA 109 at [35]-[37], per McKerracher J. No specific evidence is required to underpin the Minister’s conclusion that there was a comparable system of healthcare and social support in New Zealand: Hands v Minister for Immigration and Border Protection [2018] FCA 662 at [38], per Griffiths J.

Conclusion

43    For these reasons, the application for an extension of time must be dismissed with costs.

Associate:

Dated:    7 June 2018