FEDERAL COURT OF AUSTRALIA

Rolfe v Department of Home Affairs [2018] FCA 1674

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The costs of the application be assessed on a lump sum basis.

3.    In the absence of any agreement as to the lump sum figure:

(a)    on or before 16 November 2018 the respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Courts Costs Practice Note (GPN-COSTS);

(b)    on or before 30 November 2018 the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the GPN-COSTS.

4.    The matter of an appropriate lump sum figure for the respondent's costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

COLVIN J:

1    On 27 February 2017, a delegate of the Minister cancelled Mr Rolfe's visa under s 501(3A) of the Migration Act 1958 (Cth). Mr Rolfe made representations to the Minister seeking revocation of the decision to cancel the visa. Those representations were made pursuant to s 501CA of the Act.

2    The Assistant Minister did not revoke the visa cancelation. He formed the view that Mr Rolfe did not pass the character test and he was not satisfied that there was another reason why the cancellation decision should be revoked. On that basis, he concluded that the power to revoke was not enlivened and the visa cancelation continued to have effect.

3    The Assistant Minister was acting as the Minister for the purposes of the Act: see Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; (2016) 249 FCR 275 at [18]-[21].

4    The decision of the Assistant Minister was made on 27 February 2018. It was not until 27 June 2018 that the application for review of the decision was filed in this Court. The time limit for commencing the application was 35 days: s  477A.

5    Mr Rolfe seeks an extension of time in which to bring the application and seeks substantive relief quashing the decision if the extension is granted.

6    On 2 August 2018 I made orders that Mr Rolfe file and serve an amended application giving full particulars of each proposed ground of review and any affidavit. Other directions were made and the matter was listed for hearing today. Mr Rolfe is in immigration detention. Arrangements were made for Mr Rolfe to appear by video-link. When the video-link was established, the Court was informed Mr Rolfe had been called to attend the video room from the marshalling area but he did not attend and did not wish to attend.

7    The Minister has filed and provided to Mr Rolfe a written outline of submissions dated 25 October 218. The matter has proceeded in the absence of Mr Rolfe.

8    The application for an extension of time is opposed by the Minister. The principles to be applied on the application for an extension of time are well established: see AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193; (2015) 238 FCR 341 at [10]-[12] and SZVZH v Minister for Immigration and Border Protection [2018] FCA 896 at [28]-[29].

9    For the following reasons, I am not satisfied that the extension should be granted. Therefore, the application should be dismissed.

10    First, the delay of three months in commencing the application has not been explained.

11    Second, the grounds of review advanced on the application are not particularised. They are stated in the application in the following terms:

1.    I've never been warned in the past

2.    Due to procedural unfairness from the Minister in regards to his submissions.

12    As to the first ground, there was no statutory requirement to provide any warning to Mr Rolfe before making the decision to cancel his visa. Indeed, the terms in which s 501(3A) are expressed impose a statutory requirement upon the Minister to cancel a visa in the circumstances there described. There is no suggestion that those circumstances did not arise in this case. In particular, there has been no dispute raised by Mr Rolfe that he does not satisfy the character test by reason of his past offending resulting in a lengthy term of imprisonment. The first ground has no merit.

13    As to the second ground, it is a complaint about procedural fairness made without any particulars. As the process did not involve the Minister making submissions, I understand the ground to be a complaint about the Minister's consideration of the submissions made by Mr Rolfe. The materials before me show that Mr Rolfe was afforded an opportunity to make representations to the Minister and those representations were considered by the Minister. In my view the Minister was required, when making a decision under s 501CA, to form the required state of satisfaction by reference to all matters which, together with other matters, carry sufficient weight or significance to satisfy the Minister to revoke the cancelation which matters are made manifest as significant matters by the manner in which they are expressed. I refer to my reasons in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [68]. A failure to consider each substantial complaint of that kind may be a failure to afford procedural fairness: Viane at [77]. I refer also to the reasons of Rangiah J (Reeves J agreeing) at [24]-[31]. On my review of the materials, in the absence of submissions from Mr Rolfe, I have not been able to identify any failure by the Minister of that character. Therefore, the second ground also lacks merit.

14    Third, Mr Rolfe has chosen not to appear on the application.

15    Fourth, the interests of administration of justice in those circumstances do not support any further delay in the determination of the application. In those circumstances, I will make orders dismissing the application with costs.

Associate:

Dated:    1 November 2018