FEDERAL COURT OF AUSTRALIA

FRO18 v Minister for Home Affairs [2018] FCA 1657

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time under subs 477A(2) of the Migration Act 1958 (Cth) is refused.

2.    The applicant is to 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

PERRY J:

1.    INTRODUCTION

1    By an application filed on 20 July 2018, the applicant seeks an extension of time within which to seek judicial review of a decision by the first respondent, the Minister for Home Affairs and (then) Minister for Immigration and Border Protection (the Minister) made on 9 January 2018. By that decision, the Minister decided not to exercise his power under subs 501CA(4) of the Migration Act 1958 (Cth) (the Act) to revoke a decision made by his delegate pursuant to subs 501(3A) of the Act to cancel the applicant’s Spouse (Permanent) (Class BS) visa (the visa).

2.    BACKGROUND

2    I note that I have summarised details relating to the applicant at a general level only and made an order that these reasons be published under a pseudonym because the applicant submitted to the Minister that he may face harm from Islamic fundamentalists if returned to Lebanon because of the nature of his crimes (a submission which the Minister accepted) and that he may therefore wish to apply for a protection visa (as the Minister also accepted) (Minister’s reasons at [23]-[26]). In addition, at the hearing before me the applicant also submitted that he feared harm from other sources if returned, as I explain below.

3    The applicant is a citizen of Lebanon. He arrived in Australia in the early 2000s as a young adult.

4    On 3 June 2016, the applicant’s visa was cancelled pursuant to subs 501(3A) of the Act because a delegate of the Minister was satisfied that he did not pass the character test by operation of subs 501(6)(e). Subsection 501(6)(e) provides that a person does not pass the character test if a person has been convicted by a court in Australia of one or more sexually based offences involving a child. The applicant was convicted of sexual intercourse with a person under the age of 10 years and sentenced to a term of imprisonment of more than 12 years. An appeal against the severity of this sentence was dismissed. The applicant was also convicted of contravening an apprehended violence order for which he was sentenced to 2 months imprisonment to be served concurrently.

5    On 19 June 2016 the applicant applied to the Minister to seek revocation of the cancellation decision pursuant to subs 501CA(4) of the Act. That section provides that:

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.

6    On 20 January 2017, the Department of Immigration and Border Protection (the Department) sent a letter by email to the applicant attaching further information which it said may also be taken into account when making the decision whether or not to revoke the original cancellation decision, namely, a National Police Certificate dated 15 June 2016 and the judgment of the appellate court dismissing the appeal against the applicant’s sentence (inaccurately described in the letter as “Sentencing Remarks” of the appellate Court).

7    On 9 January 2018, the Minister made a decision personally not to revoke the delegate’s decision to cancel the applicant’s visa. First, the Minister found that the applicant did not pass the character test by virtue of subs 501(6)(e) of the Act  on the basis of his conviction of sexual intercourse with a person under the age of 10 years (as the applicant acknowledged in his representations).

8    Secondly, the Minister was not satisfied that there was another reason why cancellation should be revoked. The matters taken into account by the Minister in reaching that view may be briefly summarised as follows.

(1)    The Minister found that it was not in the best interests of the applicant’s children that the visa cancellation decision be revoked given that: his offending was committed against one of his own children; his wife has refused to allow him to have any contact with any of his children; the applicant had not had any contact with them since 2008; and there is no evidence detailing the legality, nature or likelihood of any future relationship with his children notwithstanding his aspiration to live with them following his release from prison.

(2)    With respect to the expectations of the Australian community, the Minister found that Australian community would expect the applicant not to hold a visa due to the seriousness of his offence.

(3)    The Minister acknowledged that the applicant submitted that, if he is returned to Lebanon, he “fears that Islamic fundamentalists will kill him if they discover the nature of his criminal conviction” (Minister’s reasons at [23]). However, the Minister considered that it was unnecessary to determine whether non-refoulement obligations were owed to the applicant as he was able to make a valid application for a protection visa at which time the question of whether non-refoulement obligations were owed would be fully assessed. (I note that a non-refoulement obligation is an obligation not to return a person to her or his country of origin because they fear harm of a relevant kind.) In this regard, the Minister referred to the Department’s practice of first considering the protection claims raised by an applicant in a protection visa application before looking at other criteria such as character. The Minister found that this practice was “reinforce[d]” by a Ministerial direction under s 499 of the Act (Direction 75) requiring this practice to be followed (Minister’s reasons at [25]). Further quite apart from whether his claims would engage Australia’s non-refoulement obligations, the Minister accepted that the applicant “would face hardship arising from the actions of Islamic fundamentalists were he to return to Lebanon and details of his criminal conviction became known” (Minister’s reasons at [26]).

(4)    The Minister took into account the strength, nature and duration of the applicant’s ties with Australia including the period of time he has lived in Australia, noting his offending during that time. The Minister also noted the positive contributions he had made to the community and the favourable comments made about his work ethic in sentencing remarks. He also took into account the applicant’s family and social ties to Australia but, given the breakdown of his relationship with his wife, found that she will not experience significant emotional hardship in the event of his removal, but may experience financial hardship by virtue of the applicant no longer paying the Victims’ Compensation Levy. The Minister further took into account a letter of support and accepted that the applicant’s extended family in Australia may experience emotional hardship on his removal.

(5)    With respect to the extent of impediments that the applicant may suffer if removed from Australia, the Minister accepted that the applicant may suffer emotional hardship from being separated from his children, Australian family and friends. The Minister also found that, while the applicant may experience difficulties in re-establishing himself in Lebanon, he is unlikely to suffer any significant language or cultural barriers. The Minister also referred to the applicant’s fear of harm if returned to Lebanon if Islamic fundamentalists discover his criminal offences but found that, as Lebanon has a functioning law enforcement and justice system, he would be able to seek necessary assistance or help from the authorities.

(6)    With respect to the protection of the Australian community, the Minister noted the applicant’s claim that he would not reoffend but acknowledged the seriousness of sexual offences against a minor and the sentencing judge’s comment as to the horrific nature of the crime. The Minister also found that the sentence the applicant received further indicated the seriousness of the offending and found that the Court viewed the offending as “very serious”, as did the Minister.

(7)    The Minister next considered whether the applicant posed a risk to the Australian community through reoffending. The Minister noted mitigating factors as detailed in the sentencing remarks, including that the offence was not planned, the applicant had good prospects of rehabilitation, no previous convictions and, prior to his convictions, would have been considered a person of good character. The Minister also accepted the applicant’s advice that he pleaded guilty in order to spare his family further hurt. He took into account the applicant’s acknowledgement that he “committed a terrible criminal offence” and has expressed remorse. He further took into account the applicant’s advice that he has learnt to read and write in English and has participated in various courses, accepting that these courses will assist in his rehabilitation, as would the family support, employment and accommodation available to the applicant on his release. However, the Minister also considered that the applicant’s progress towards rehabilitation was not complete given statements by him indicating that he had not fully understood and acknowledged his sexual offending. Furthermore, while the applicant had achieved parole at the earliest possible release date and would be on parole in a supervised environment for a number of years tempering any risk posed to the community, the Minister considered that any progress the applicant has made towards rehabilitation is yet to be tested in the community. The Minister also took into account the disregard the applicant demonstrated for the law in breaching the conditions of his AVO. For those reasons the Minister found that “there is a risk, albeit low,” that the applicant will reoffend and that, if he did so in a similar manner against minors, it could result in serious emotional and psychological harm to vulnerable members of the Australian community (Minister’s reasons at [72]).

9    The Minister concluded that the applicant represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any other considerations. Accordingly, the Minister was not satisfied that there was another reason why the cancellation decision should be revoked.

3.    CONSIDERATION

3.1    Relevant principles applicable to an application for an extension of time

10    Subsection 476A(1)(c) of the Act provides this Court with jurisdiction to conduct judicial review of a decision made by the Minister personally under s 501CA. However, by virtue of subs 477A(1) of the Act any such application must be made within 35 days of the date of the Minister’s decision. The Minister’s decision was made on 9 January 2018, and the applicant was notified of that decision on 11 January 2018. Accordingly, the time within which the application for judicial review could have been instituted as of right expired on 15 February 2018. However this application was not made until 20 July 2018 and therefore over 150 days out of time. Accordingly, the applicant must persuade the Court that it is appropriate to grant an extension of time under subs 477A(2). That section provides that:

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.

11    As such, subs 477A(2) confers a discretion on the Federal Court to grant an extension of time where both of the criteria specified in subsections (a) and (b) are met.

12    In the present case, the applicant has filed an application which complies with the first criterion. The considerations relevant to determining whether it is in the interests of the administration of justice to grant an extension of time include the length of the delay, the applicant’s explanation for the delay, any prejudice to the respondent and the prospects of success of the proposed application if leave were granted: Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [26] (the Court); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J). Furthermore, as the Minister submitted, where delay (as here) is lengthy, a case would need to be exceptional before a court would grant an extension of time: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 (McHugh J).

3.2    The explanation for the delay

13    The Minister accepted that he would not be prejudiced by the grant of an extension of time but submitted that the applicant’s explanation for the delay was not adequate.

14    In the application for an extension of time under the heading “[g]rounds of application”, the applicant states:

As advice by the Immigration to withdraw Application from Federal Circuit Court and Proceed to Federal Court. (Letter Attached).

15    There is, however, no letter attached to the application. At the hearing, the applicant confirmed that he did not intend to attach a letter and that the grounds on which he relied in support of his application were set out in his affidavit in support of his application.

16    In his affidavit in support of the application for an extension of time, the applicant deposes under a heading “Statement for Extension of time” that:

In the past years I was suffering from depression and anxiety and ongoing mental health issues since 2015 After I got my decision from NCCC was stressed out and did not know what to do after that decision I could not do my paperwork in time since I am in Immigration Detention Centre and lack of access to legal representation and there is no social worker who could help me. I have been instructed by Immigration Department and Australian Border Force to request federal Court to review my decision which was made on Feb 12 of 2018 by NCCC requesting court to consider my application for Review of a Migration Decision.

(Errors in original)

17    I note that the applicant has also referred to a decision made on 12 February 2018 in his “grounds of application”. There is no evidence before me as to what decision the applicant is referring to, and I note that the applicant properly annexed the non-revocation decision of 9 January 2018 to his affidavit. As the applicant was not cross-examined and his explanation is credible (as the Minister accepted), I accept his evidence in so far as it relates to his health and difficulties in completing the necessary paperwork. Furthermore, as the Minister also accepted, the applicant’s circumstances and, in particular, his capacity to access assistance, legal or otherwise, are affected by the fact that he is not at liberty but is in immigration detention. Nonetheless, the Minister submitted that the explanation given by applicant was not adequate. In this regard the Minister emphasised that the applicant does not suggest that the delay was brought about due to efforts to obtain legal assistance and that the applicant was ultimately able to file these documents without the assistance of a lawyer. The Minister also pointed out that there is no medical evidence before the Court regarding the applicant’s mental health issues and whether they caused him to be unable to commence proceedings on time.

18    However, having regard among other things to the seriousness of the consequences to the applicant and the fact that he has been immigration detention for some time, any inadequacies in the applicant’s explanation for the delay would not be determinative in this case if I were satisfied that the proposed application for judicial review had any reasonable prospects of success.

3.3    Would the proposed application for judicial review have any reasonable prospects of success?

3.3.1    No reasonable prospects of success

19    In considering the merits of the proposed application for judicial review, the proposed grounds 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 (see by analogy MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] (the Court)).

20    In determining whether the application for judicial review would have any merit, it is important to emphasise at the outset that on such an application the Federal Court is confined to deciding whether the Minister’s decision was made lawfully under the Act, that is, whether his decision is invalid by reason of a jurisdictional error.  The Minister would make a jurisdictional error if, for example, he misunderstood the criteria under the Migration Act by which to determine whether or not to revoke the cancellation decision, or if he failed to comply with the requirements of procedural fairness: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court).  However, this Court has no jurisdiction to revoke the decision to cancel the applicant’s visa or to correct any mistaken findings of fact by the Minister in the revocation decision: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). The question of whether or not this Court agrees with the Minister’s decision is not a basis for finding that decision invalid.

21    The proposed grounds set out in the originating application are as follows:

1.    The respondent’s decision was unreasonable.

2.    The respondent’s decision involved an error of law.

3.    The respondent’s took into account irrelevant considerations.

4.    The respondent’s failed to make relevant considerations into account.

5.    The respondent’s in making its decision did not comply with the rules of natural justice.

6.    There was insufficient evidence or no evidence to support various findings made by the respondent’s.

7.    The respondent’s denied the appellant procedural fairness.

(Errors in the original)

22    In broad terms, these grounds identify different kinds of jurisdictional error. However, these alleged errors are expressed in generic terms only. None of the grounds identifies the particular respects in which it is said that the Minister fell into a jurisdictional error of the kind alleged. For example, no particular consideration is identified as having been overlooked by the Minister. Nor were these grounds elaborated upon in oral or written submissions by the applicant. The failure to particularise a ground of review is a sufficient basis on which to dismiss the ground: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J) (applying WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] (Lucev J) which was upheld on appeal in WZATH v Minister for Immigration and Border Protection [2014] FCA 969 (Siopis J)).

23    Notwithstanding that this would suffice to dispose of the application for an extension of time, I have considered whether any error of the general nature alleged might reasonably be evident given the seriousness of the consequences to the applicant, the fact that he is unrepresented, and the difficulties he may have by reason of being in immigration detention in accessing services which might otherwise be available to assist him in preparing for, and presenting, his application.

3.3.2    First and sixth proposed grounds of judicial review

24    The first and sixth proposed grounds of the originating application allege that the Minister’s decision was unreasonable and that there was insufficient evidence to support the Minister’s findings. Legal unreasonableness invaliding the Minister’s decision would be established if, for example, the non-revocation decision lacked an evident or intelligible justification, or was a decision that no reasonable decision-maker could have made, such as where the decision was simply not open on the evidence or there is no logical connection between the evidence and the inferences or conclusions drawn: see e.g. Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [135] (Crennan and Bell JJ); Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [28] (French CJ) and [72] (Hayne, Kiefel and Bell JJ). However in line with the principles earlier referred to, an administrative decision is not legally unreasonable merely because a litigant or the Court disagrees, even emphatically, with the outcome or justification: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [92] (Wigney J).

25    In the present case, the Minister gave detailed reasons for concluding that the protection of the Australian community outweighed any other considerations in the applicant’s favour. As I have earlier summarised, in reaching that decision the Minister had regard to and assessed matters which were logically capable of bearing upon the Minister’s exercise of discretion including the best interests of the applicant’s minor children, the expectations of the Australian community, the harm that the applicant feared from Islamic fundamentalists if he were returned to Lebanon, the strength, nature and duration of his ties to Australia, the extent of impediments if he were to return to Lebanon, and the protection of the Australian community. Furthermore, in considering these matters, the Minister took into account the representations made by the applicant, the letter of support provided on his behalf, positive comments by the sentencing judge, and other material before him. Based upon that material, it was open to the Minister to reach the conclusion that he did. It follows in my view that the first and sixth proposed ground of judicial review would not have any reasonable prospects of success.

3.3.3    Second, third and fourth proposed grounds of judicial review

26    With respect to the second, third and fourth proposed grounds, there is nothing apparent in the Minister’s reasons which suggests a failure to consider relevant considerations, consideration of an irrelevant consideration or other error. In this regard, it was apparent from the applicant’s oral submissions that he was very concerned that if he was returned to Lebanon, he would be in great danger and may be killed. However, there is no error evident in the Minister’s consideration of this issue. The Minister took into account Direction 75 enacted under s 499 of the Act on 5 September 2017 which requires that decision-makers assess whether an applicant meets a protection criteria, before considering any grounds upon which an applicant may be ineligible for the grant of a protection visa. The Minister also considered whether the applicant’s claims to fear of harm from Islamic fundamentalists if returned to Lebanon was a reason why the cancellation decision should be revoked in the context of considering impediments to his return and found that the Lebanese authorities would be able to afford him protection. As such, in my view, no arguable case of jurisdictional error is demonstrated in the Minister’s consideration of these claims: cf BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 at [70]-[72] (Bromberg and Mortimer JJ).

27    In this regard, I considered whether the apparent description of the applicant’s claim to fear being killed by Islamic fundamentalists (as correctly described by the Minister at [23]) as “hardship arising from the actions of Islamic fundamentalists” (as described at [26]) might be suggestive of error. However, while “hardship” is a plainly inappropriate word and an understatement of the dangers described by the applicant, it is important that the Minister’s reasons not be read with an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). In this regard, it seems clear that the use of the word “hardship” goes no higher than mere looseness of language given the correct description of the claim shortly before in the Minister’s reasons and the consideration given at [42]-[43] as to the availability of protection from the authorities in Lebanon for his fears for his “personal safety” from Islamic fundamentalists. As such, I do not consider that there is a reasonable prospect that any argument based upon the use of the word “hardship” might succeed.

28    At the hearing, the applicant also said that he feared harm from the mafia, Hezbollah and his wife’s family (who he said had connections with those organisations) all of which would harm him because of the nature of his offending in Australia. He accepted that he had not raised these matters before. However, he said that he had not been aware of them until about a month ago after his visa was cancelled and the Department’s advice that he would be deported. He said that his family in Lebanon told him that he was “crazy” to come back, his wife’s family “is waiting for you here”, and they have “a big family” with “a connection with Hezbollah and this mafia”. After reviewing the material, the Minister agreed that these claims to fear harm had not be raised before the Minister and this accords with my own consideration of the material put before the Minister by the applicant. In those circumstances, the Minister correctly submitted that he could not have fallen into error in failing to consider reasons why the applicant should not be returned which were not raised by the applicant in the context of the decision not to revoke the cancellation decision. That would not, however, prevent such claims being considered in the context of any application for a protection visa which the applicant may make.

29    Finally, the applicant submitted that there were reasons why the cancellation decision should be revoked including that he was very sorry, he was a changed man, and he should be given a second chance to be a good man, a good father and a good Australian. However, for the reasons I have explained at [20] above, this Court cannot consider whether having regard to these and other matters, it agrees with the Minister’s decision not to revoke the cancellation decision. It can consider such matters only to the extent to which they show jurisdictional error on the part of the Minister. In this regard, it is apparent from the face of the Minister’s decision that he took into account these and the other representations by the applicant as to why the cancellation decision should be revoked by engaging with them in an active intellectual process: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [44]-[46] (the Court). In other words, they were not simply dismissed without any real consideration.

30    For these reasons, proposed grounds two, three and four of the application for judicial review do not have any reasonable prospects of success.

3.3.4    Fifth and seventh proposed grounds of judicial review

31    Proposed grounds five and seven allege a breach of “procedural fairness” and “natural justice” respectively. These are different phrases for describing the same kind of error, relevantly, a failure to afford the applicant a reasonable opportunity in all of the circumstances to present an affirmative case as to why the cancellation decision should be revoked and to answer material or information potentially adverse to him: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 (the Court); Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 (WZARH) at [52]-[55] (Gageler and Gordon JJ). The proposed grounds do not, however, identify the manner in which it is said that the Minister failed to accord the applicant procedural fairness. Furthermore, the Minister in fact afforded the appellant a reasonable opportunity to answer material or information which might suggest that the visa cancellation should remain in effect and to present an affirmative case as to why the discretion under s 501CA should be exercised in his favour. No more is required in order to comply with procedural fairness: WZARH at [52] (Gageler and Gordon JJ). It follows in my view that neither ground five nor seven has any reasonable prospects of success.

4.    CONCLUSION

32    For these reasons, the application for an extension of time under subs 477A(2) of the Act should be refused with costs.

Associate:

Dated:    2 November 2018