FEDERAL COURT OF AUSTRALIA

Pirini v Minister for Immigration and Border Protection [2018] FCA 945

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time included in the amended originating application filed on 27 October 2017 (Amended Application) be dismissed.

2.    The Amended Application be dismissed.

3.    The applicant pay the respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    By originating application filed on 20 September 2017 the applicant seeks judicial review of a decision of the Assistant Minister for Immigration and Border Protection (Assistant Minister) made on 19 August 2017 (Originating Application). The Assistant Minister had determined, under s 501CA(4) of the Migration Act 1958 (Cth) (Act), not to revoke the mandatory decision under s 501(3A) of the Act to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa (Visa).

2    Section 477A(1) of the Act provides that an application in relation to a migration decision to which, relevantly, s 476A(1)(c) of the Act applies, must be made to the Court within 35 days of the date of that decision. In this case the date of the migration decision, which is the decision of the Assistant Minister made pursuant to s 501CA(4) of the Act, was 9 August 2017: see s 477A(3) and s 477(3)(d) of the Act. The Originating Application was lodged with the Court six days outside the 35 day time limit imposed by s 477A(1) of the Act. Accordingly, the applicant requires an extension of time within which to make his application: see s 477A(2) of the Act.

3    At the time of filing his Originating Application with the Court the applicant did not file an application for an extension of time. On 27 October 2017 the applicant filed an amended originating application (Amended Application) in which, among other things, he seeks, by way of interlocutory relief, an extension of time within which to file the Originating Application. The application for an extension of time and the Amended Application were before me for hearing at the same time.

Background

4    The applicant is a male citizen of New Zealand. He arrived in Australia in 1997 at the age of 21 and has resided in Australia since that time.

5    The applicant has three children born in 2005, 2006 and 2008 respectively who are Australian citizens. They live with their Australian born mother who is the applicant’s wife.

6    On 21 June 2013 the applicant was convicted in the Local Court of New South Wales (Local Court) of assault occasioning actual bodily harm and contravention of prohibitions/restrictions in an apprehended domestic violence order (AVO). He was sentenced to 12 months imprisonment.

7    On 2 July 2013 the Department of Immigration and Border Protection (Department) notified the applicant that his Visa may be liable to cancellation under s 501 of the Act.

8    On 22 October 2013, after taking into account all relevant considerations, a delegate of the Minister decided that the Visa would not be cancelled on character grounds and that the applicant would be permitted to remain in Australia on that Visa. However, the delegate decided the applicant was to be given the following formal warning:

Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.

9    On 8 April 2014, 11 June 2015, 13 May 2016 and 12 October 2016 the applicant was convicted of further offences including domestic violence related common assault, multiple contraventions of AVO prohibitions/restrictions, resisting an officer in their execution of duty and assaulting an officer in their execution of duty.

10    On 25 November 2016 the Visa was cancelled pursuant to s 501(3A) of the Act. A delegate of the Minister found that the applicant did not pass the character test as he had a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(c) of the Act because he had been sentenced to a term of imprisonment of 12 months or more on 21 June 2013. The applicant was invited to make representations to the Minister for Immigration and Border Protection (Minister) about revoking the decision to cancel the Visa.

11    On 29 November 2016 the applicant made representations to the Minister seeking revocation of the decision to cancel the Visa pursuant to s 501CA(4) of the Act.

12    On 27 June 2017 the Department invited the applicant to comment on the following information which may be taken into account when making the decision whether to revoke the decision to cancel the Visa under s 501CA of the Act:

•    Notice of decision not to cancel visa dated 22 October 2013

•    Acknowledgement of receipt received 19 December 2013

•    Prison report from New South Wales Corrective Services dated 16 August 2013

•    Sentencing Remarks dated 21 June 2013

•    Personal Details Form dated 11 July 2013 and letter

•    Submission dated 8 October 2013

13    On 9 August 2017 the Assistant Minister decided not to revoke the decision to cancel the Visa pursuant to s 501CA(4) of the Act.

the assistant minister’s decision

14    The Assistant Minister found that the applicant did not pass the character test because of the operation of s 501(6)(a) of the Act on the basis of s 501(7)(c) because he had been sentenced to a term of 12 months imprisonment. Relevantly, the Assistant Minister noted that the applicant did not dispute the information in the national police certificate about his criminal convictions and sentences or that he did not pass the character test.

15    The Assistant Minister was not satisfied that the applicant passed the character test as defined in s 501 of the Act and therefore found that s 501CA(4)(b)(i) of the Act was not met.

16    The Assistant Minister then turned to consider whether there was another reason why the Visa should be revoked pursuant to s 501CA(4)(b)(ii). In undertaking that task the Assistant Minister had regard to, among other things, the applicant’s representations and the documents he submitted in support of those representations. The Assistant Minister noted that in the material provided, the applicant had given the following reasons why the original decision should be revoked:

    the best interests of his three minor children would not be served by his return to New Zealand;

    his children and partner would not relocate to New Zealand with him;

    Australia has been his home for the past 20 years;

    he has contributed to the Australian community through employment;

    his father would be affected badly as they are very close;

    his eldest daughter is a severe asthmatic whose treatment would benefit from his presence.

17    The Assistant Minister considered the best interests of the applicant’s three minor children who are Australian citizens. He noted that they lived with their mother to whom the applicant had been married for 12 years and from whom he had been separated for two years. He noted the applicant’s claim that he had a very close bond with his children, that he spoke with them daily, that prior to his incarceration he saw them daily and that his deportation would have a dramatic effect on them. The Assistant Minister considered a medical report about his oldest child in which the treating doctor made the point that the applicant’s support would help her to achieve her treatment goals. He also considered letters of support from the applicant’s two older children. The Assistant Minister found that, notwithstanding the applicant’s past conduct, it was in the best interests of the applicant’s three children that the original decision be revoked.

18    The Assistant Minister considered the strength, nature and duration of the applicant’s ties to the Australian community. He found that the Australian community may afford the applicant a higher tolerance of criminal conduct given the length of time he had resided in Australia. The Assistant Minister accepted that a decision not to revoke the original decision would result in emotional hardship to the applicant’s father, would impact the applicant’s wife both financially and practically and might cause the applicant’s siblings and other family members emotional distress.

19    The Assistant Minister considered the extent of impediments to the applicant if he was removed from Australia. He found that, notwithstanding the applicant’s period of absence from New Zealand and the emotional and practical challenges he would face as a result, basic social, medical and economic support available to New Zealand citizens would be available to the applicant to enable him to maintain basic living standards. The Assistant Minister also found that the applicant has a good employment history and that his age and experience should enable him to find work which would ameliorate his economic hardship after his removal.

20    The Assistant Minister then considered the protection of the Australian community. In doing so, he had regard to the nature and seriousness of the applicant’s criminal offending noting that “violent offences are very serious”. The Assistant Minister referred to the sentencing remarks made in the Local Court on 21 June 2013 where, among other things, the Magistrate had said that he had no alternative but to sentence the applicant to a term of imprisonment as he had “pushed it to the end of the limits”. The Assistant Minister also had regard to the applicant’s history of violent or violence related offending and his prior convictions for which he had received sentences of imprisonment, bonds, community based orders, fines and licence disqualifications.

21    The Assistant Minister found that the sentences that the applicant had received were a further indication of the seriousness of his offending, that the applicant “has a substantial criminal history which includes violent and other offences” and that “despite various court dispositions including terms of imprisonment, he continued to offend”. The Assistant Minister concluded that the applicant engaged in “recidivist criminal offending” and considered “his criminal history overall to be serious”.

22    The Assistant Minister considered whether the applicant posed a risk to the Australian community through reoffending by having regard to any mitigating or casual factors and the steps the applicant has undertaken to reform as well as his conduct in the custodial and non-custodial environment. The Assistant Minister:

(1)    noted the Magistrate’s remarks on sentencing on 21 June 2013 about the applicant’s poor role as a father and the further remarks made by a magistrate of the Local Court on 11 June 2015;

(2)    acknowledged the applicant’s submissions that he had made a few poor choices in life for which he and his children have paid dearly; that he will never reoffend again knowing that if he does he will never see his children; that it was the thought of not waking up with his children every morning that caused him to breach the court’s order; and that he now finally accepts that he and his wife have separated and that if his wife permits him access to their children he will no longer be a threat to her or their children; and

(3)    took the applicant’s final submission into account in concluding that there remained the potential for harm to the applicant’s wife should she not permit him to contact the children.

23    The Assistant Minister noted that the applicant’s offending was the result of substance addiction and his relationship breakdown; that the risk of the applicant continuing to engage in substance abuse, about which he had made no submissions, increased the likelihood of his reoffending; that the applicant’s past custodial sentences had failed to curb his reoffending; and that the multiple charges of contravening apprehended domestic violence orders demonstrated a disregard for the law on the applicant’s part which was indicative of his propensity to reoffend. The Assistant Minister concluded that, given the applicant’s criminal history, his questionable insight and his proven willingness to breach conditional liberty and court orders, there is an ongoing risk that he will reoffend.

24    The Assistant Minister was not satisfied that there was another reason why he would revoke the original decision pursuant to s 501CA(4)(b)(ii) of the Act. In reaching that decision, the Assistant Minister concluded that the applicant represents an unacceptable risk to the Australian community and that the protection of the Australian community outweighed the best interests of the children as a primary consideration and any of the other matters taken into account, including the applicant’s lengthy residence and bonds in Australia, employment and familial ties and the hardship the applicant, his family and his social networks will endure in the event the original decision is not revoked.

Amended application

25    The Amended Application seeks, by way of interlocutory relief, an extension of time within which to make the application and sets out the applicant’s grounds of review. They are:

1.    Justice was not done with the decision.

2.    Pending the outcome of FALZON.

3.    The decision of the Respondent was invalid because section 501(3A) of the Migration Act 1958 (Cth), on which it depended, was itself invalid as purporting to confer judicial power on the Respondent, contrary to Ch III of the Constitution.

Particulars

(a)    The decision dated 25 November 2016, being the mandatory decision to cancel the Applicant's visa is based on invalid law. The decision of the Respondent dated 9 August 2017 not to revoke the mandatory visa cancellation decision was invalid because it upheld a decision based on an invalid law.

(b)    Section 501(3A) of the Act purported to require the respondent, relevantly, to cancel the applicant’s visa where the respondent was satisfied that the applicant did not pass the character test because of the operation of s 501(6)(a) (substantial criminal record), on the basis of s 501(7)(c) (sentence to a term of imprisonment of 12 months or more), and the applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution.

(c)    Once the relevant provisions of s 501(3A) had been met by the applicant, the respondent considered that he had no discretion other than to cancel the applicant's visa and detain the applicant.

(d)    The cancellation of the applicant's visa under s 501(3A) of the Act and the consequential detention of the applicant, in circumstances where the respondent considered that he had no discretion to do otherwise, rendered s 501(3A) a punitive provision and therefore an unlawful interference by the respondent in the Judicial power of the Commonwealth in Chapter III of the Constitution of Australia.

(underlining omitted)

26    The Originating Application was accompanied by an affidavit affirmed by the applicant on 19 September 2017 in which the applicant stated (as written):

1.    I want to appeal the decision of Hon. Ass. Immigration Minister Alex Hawke. In his decision Hon. Ass. Minister said that, when my visa was cancelled under 501 section I was serving a sentence of imprisonent, which is right. But when I received this decision I was in Villawood detention center.

2.    On Dec 19, 2016, I made representation seeking revocation of the mandatorary visa cancellation decision, representations were made within the tie period in accordance with the regulations.

3.    Although Hon. Ass. Minister also stated in his decision that my representation was made in accordance with the invitation as required under s 501 of the Act.

4.    In the decision making Hon. Minister stated that it does not pass the character test because of substantcial criminal record, but Hon. Minister didn't noticed that I am changed man now, the love for my daughters ,totally changed me. I love my daughters more than anything else in my life.

5.    Hon. Minister stated in his decision that he can't see any other reason to revoke original decision, but main reason is my family my daughters, they are everything to me. I prefer to die rather than being separated from my kids. The supporting letters from my kids are also attached with this affidavite.

6.    In the decision from the Hon. Assitant Minister Alex Hawke I also stated that I have very close bond with my all 3 children and that I am very much and active father in thier lives , if anything in my life than those are my daughters. I talk to my daughters everyday on phone and through visits here at Villawood detention facility. Also that was stated in the medical report ijn relationto my eldest daughter Pieta Pirini 12yrs old , Dr Jayasuriya stated that my daughter needs her fathers support by as well as her mothers, to help her to acheive her treatment goals in relation to my daughters chronic asthma condition. I have been in my daughters lives since thier birth up untill this present day. So please accept my application to appeal the decision to have my visa rienstated due to proceedual fairness.

…

Relevant principles – extension of time

27    Section 477A(2), which empowers the Court to extend the time for making an application seeking a grant of relief in relation to a decision made pursuant to, among others, s 501CA, provides:

(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.

28    The principles to be applied on an application to extend time were recently summarised by Thawley J in Rere v Minister for Immigration and Border Protection [2018] FCA 846 at [16]-[17] as follows:

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.

Consideration

29    The Originating Application was filed six days late. The applicant’s affidavit sets out matters going to the process undertaken by the Department and the Assistant Minister and which go to the merits of the decision. The applicant does not provide any explanation for the delay, which is not lengthy. The Assistant Minister does not say that he would suffer any prejudice if an extension of time was granted. In the circumstances of this case, neither of these factors is determinative of whether an extension of time should be granted.

30    The issue for the Court is whether the grounds in the Amended Application have any reasonable prospects of success. In my opinion, having considered them, they do not.

31    By the first ground the applicant asserts that “[j]ustice was not done with the decision”. No particulars of this ground are provided in the Originating Application or the Amended Application and the applicant has not provided any written submissions in support of the ground. In oral submissions the applicant raised matters going to the merits of the Assistant Minister’s decision, including the reasons for his convictions and his relationship with his children.

32    The applicant’s submissions were made sincerely and the applicant, who is not legally represented, did the best he could. But, as I have already observed, those submissions went to the merits of the Assistant Minster’s decision. Neither the ground itself nor the applicant’s oral submissions identify any legal error in the decision nor elucidate why it was that “justice was not done”. The ground does no more than express the applicant’s disagreement with and disappointment in the decision.

33    In coming to his decision the Assistant Minister took into account the material that was before him, including the representations made by the applicant. He made findings in relation to each consideration that he identified and took those findings into account before coming to a conclusion which was open to him on the material before him. This ground has no prospect of success.

34    The second ground was included in the Originating Application and further particularised in the Amended Application prior to the outcome of the decision of the High Court of Australia in Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61; [2018] HCA 2 (Falzon). As the Assistant Minister submitted, it is now settled that s 501(3A) of the Act does not confer judicial power on the Minister and the scheme for mandatory detention and removal of unlawful non-citizens in Div 7 and Div 8 of Pt 2 of the Act does not make the mandatory cancellation provisions invalid: Falzon at [48] and [63] per Kiefel CJ, Bell, Keane and Edelman JJ. This ground must fail.

conclusion

35    For the reasons given above the application for an extension of time must fail and should be dismissed. Because the order for an extension of time was sought in the Amended Application, that too should be dismissed. The applicant should pay the Assistant Minister’s costs.

36    I will make orders accordingly.

Associate:

Dated:    21 June 2018