FEDERAL COURT OF AUSTRALIA

Ronaki v Minister for Home Affairs [2018] FCA 1678

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed with costs as assessed or agreed.

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

REASONS FOR JUDGMENT

STEWARD J:

1    The applicant was born in New Zealand and arrived in Australia at the age of 10 in 1990. He was the holder of a Class TY Subclass 444 Special Category (Temporary) visa (the “visa”). On 29 November 2016, a delegate of the first respondent (the “Minister”) cancelled that visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the “Act”) on the ground that the applicant did not pass the character test due to his criminal record. The applicant submitted a request that this decision be revoked pursuant to s 501CA(4) of the Act. On 4 December 2017, a delegate of the Minister decided not to revoke that decision.

2    That determination was reviewed by the second respondent (the “Tribunal”). On 8 March 2018, the Tribunal affirmed the decision not to revoke the cancellation decision. The applicant now seeks judicial review of that ruling in this Court. He was required, however, by s 477A of the Act, to commence such a proceeding within 35 days of the date of the Tribunal’s decision. The applicant failed to do this. He now seeks an extension of time within which to commence judicial review proceedings pursuant to s 477A(2) of the Act.

Relevant Principles

3    Section 477A of the Act provides:

Time limits on applications to the Federal Court

(1)    An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(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.

(3)    In this section:

date of the migration decision has the meaning given by subsection 477(3).

(4)    For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection 477(3).

(5)    To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision

4    In exercising the discretion conferred by s 477A(2) in an application for an extension of time, factors to take into account are the extent of the delay, any prejudice the Minister might suffer because of the delay, the explanation for the delay and the merits of the proposed application: Singh v Minister for Immigration and Border Protection [2017] FCA 150 at [19]; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; and Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

Length of Delay

5    The applicant was 11 days late in filing his application. The delay was thus minimal. This factor favours the applicant.

Prejudice

6    The Minister properly accepted that he would not be relevantly prejudiced if an extension of time were to be granted. Again, this factor favours the applicant.

Explanation for Delay

7    The applicant filed and served an affidavit affirmed on 18 April 2018 which deposed to the following matters:

1.    The first respondent decision made on 05/December/20117 to be quashed

2.    The second respondent decision on 08/March/2018

3    The respondent decision was unreasonable.

4.    The respondent decision involved an error of law

5.    The respondent took into account irrelevant consideration.

6.    The respondent failed to make relevant [consideration] into account

7.    The respondent in making its decision did not comply with the rules of natural     justice and denied the applicant procedural fairness

8.    There was insufficient evidence or no evidence to support various finding     made by the respondent

9.    The respondent failed to properly exercise their discretion under 501 CA and     s 501 CA(4) of the Immigration act 1958 (Cth).

(Errors in the original.)

8    Plainly, the foregoing does not contain any explanation for the delay of 11 days. During the hearing, I asked the applicant to provide such an explanation. He told me that he had wanted to be referred to a lawyer for pro bono assistance and that this had not occurred. Understandably, he was unsure of what was required. He said he was, at the time, on Christmas Island, which did not have all the “equipment”; that he did not get the paperwork in time; and that he got help from a friend. He said he believed he deserved an extension of time.

9    In my view, given that the applicant was not represented before the Tribunal, and has since not been represented by a lawyer, this explanation may be accepted. Again, this factor favours the applicant, if only slightly.

Merits of Proposed Application

10    I turn now to consider the merits of the application for judicial review. In his request for revocation of the cancellation decision, the applicant identified the following matters which he relied upon:

(1)    all his family and friends lived in Australia and that he had no family in New Zealand for emotional or financial support;

(2)    he spent his formative years growing up in Australia and had made a positive contribution to the community in the period before going to prison;

(3)    there was no risk that he would reoffend again in the future because he had addressed his offending behaviour whilst in custody where he had completed rehabilitation programs;

(4)    if returned to New Zealand, he would become destitute;

(5)    he needs to remain in Australia to be a positive role model and provider for his partner and her son;

(6)    his mother and siblings would be devastated, and his sisters would be denied his fatherly support;

(7)    he loves Australia and it is only by chance that he did not apply for citizenship in the past;

(8)    he wants to marry his partner who wishes to reside in Australia; and

(9)    if returned to New Zealand, he fears gang members might try to recruit him.

11    The applicant supplied further information to the Minister, which was accurately summarised in the Minister’s written submissions before me in terms, which I adopt, as follows:

The visa cancellation had already affected his family, and removal “would place undue hardship both emotionally and financially” on them.

The applicant has an ongoing relationship with [x], his partner’s child, who has been adversely affected by the cancellation.

The applicant has a strong bond with his partner, [x].

He has no family or support in New Zealand, has nowhere to live and fears for his emotional and physical wellbeing there.

He considered that he did not pose a threat to the Australian community. His past drug habit contributed to his offending behaviour, but he has now addressed that addiction issue. He has also participated in various programs in prison.

Gang members within New Zealand would forcibly recruit him, and he would face repercussions if he refused.

He has made positive contributions to the Australian community, and his employer would like him to remain.

(Citations omitted.)

The Tribunal’s Decision

12    I have carefully reviewed the decision of the Tribunal. It set out the applicable legislative regime contained in ss 501(3A) and 501CA of the Act, which I need not reproduce. It directed its attention, in accordance with s 499 of the Act, to the Minister’s “Direction No. 65” (the “Direction”) and considered each of the primary considerations specified by that Direction, being namely:

(1)    protection of the Australian community from criminal or other serious conduct;

(2)    the best interests of minor children in Australia; and

(3)    the expectations of the Australian community.

It also considered the “other considerations”, for the purposes of the Direction, being:

(1)    international non-refoulement obligations;

(2)    strength, nature and duration of ties to Australia;

(3)    impact on Australian business interests;

(4)    impact on victims; and

(5)    extent of the impediments that would be faced if removed.

13    The Tribunal had regard to the following material:

(1)    the “G documents”;

(2)    a document from the Victorian Department of Justice and Regulation entitled “Contravention of Community Correction Order by Conditions”;

(3)    a Victoria Police document headed “Preliminary Brief – Statement Made by Informant”;

(4)    a witness statement from the Applicant comprising five pages with an attached statement from a person known as “Pana” who was the owner of “Pana’s Wheels and Tyres” in Hoppers Crossing;

(5)    a witness statement from Mr Gregory Muao (whose partner is the applicant’s cousin);

(6)    an email in the form of a statement from Mr Jordan Hoko;

(7)    a witness statement in the form of an email from the applicant’s mother;

(8)    a witness statement in the form of an email from the applicant’s sister;

(9)    a witness statement in the form of an email from the applicant’s partner;

(10)    a witness statement from the applicant’s youngest sister.

(11)    viva voce evidence from the following witnesses:

(a)    the applicant;

(b)    the applicant’s mother; and

(c)    the applicant’s sister.

14    The Tribunal commenced its analysis with a consideration of the risk that the applicant might reoffend in Australia were he to remain here. It considered the applicant’s extensive criminal history which commenced when he turned 18 and included not less than 20 court appearances. The applicant has been convicted of unlawful assault, intentionally causing injury, aggravated burglary, recklessly causing injury, resisting police, hindering police, escaping police custody, use of a prohibited weapon and persistent contravention of both personal safety intervention orders and family violence intervention orders. The Tribunal was, in particular, concerned with two instances of violence involving the applicant’s former and current partner, and the applicant’s apparent failure to appreciate the gravity of these acts. These events were considered in some detail. The Tribunal also took into consideration the applicant’s property offences, which included burglary. It gave consideration to the applicant’s explanation for his criminal behaviour, being his dependence on drugs, but found, nonetheless, that there was a sustained pattern of conduct over an extended time period which raised a serious question as to whether the applicant had reformed.

15    The Tribunal was also concerned by the number of times the applicant had been convicted of breaking orders of the court. This demonstrated, it found, a propensity on the part of the applicant to disobey orders and gave the Tribunal no confidence that this would not happen again. The Tribunal concluded relevantly at [55]:

[The applicant’s] behaviour was completely and utterly unacceptable and must be a factor that weighs heavily against him in the context of this application. If the Applicant were to repeat such offending the Tribunal finds that it would pose a considerable risk of harm to members of the Australian community.

16    The Tribunal next considered the best interests of the son of the applicant’s partner. She did not give evidence on his behalf before the Tribunal. The Tribunal found that there had been a long period of disconnection between the applicant and the boy over a period of three years (during which the applicant was mostly in custody), and that, accordingly, there had been little meaningful contact between them. It found that the applicant’s repeated offending could not lead to a likely positive role in the child’s upbringing and that the best interests of the child were unlikely to be affected by the decision to revoke the applicant’s visa.

17    The Tribunal next considered the expectations of the Australian community, and after reviewing again the applicant’s criminal conduct, including the pattern and nature of his offending, formed the view that the community would expect the applicant not to hold a visa.

18    The Tribunal then turned to consider the “other considerations” in the Direction, commencing with the requirement to consider Australia’s non-refoulement obligations. The applicant had submitted before the Tribunal that if he were to be sent back to New Zealand, he would be forced to join a motorcycle or street gang, and that his life would be in jeopardy. This claim was rejected by the Tribunal at [69] as having an “air of unreality”.

19    The Tribunal also considered the strength, nature and duration of the applicant’s ties to Australia, and in particular considered a submission that the applicant needed to stay in Australia to support his mother. The Tribunal found that the mother appeared to be in good health and had full-time employment. It determined that this consideration weighed only slightly in favour of the applicant.

20    The Tribunal considered the impact on victims, but found that there was insufficient evidence before it to make meaningful findings about this issue. There was a similar lack of evidence concerning the impact deportation would have on Australian business interests. It finally considered the extent of the impediments the applicant would face if returned to New Zealand, and found that there were no significant problems of that kind. In particular, the Tribunal referred to the fact that the applicant’s two brothers had previously been deported to New Zealand, and without expressly referring to the fact that they are both currently serving terms of imprisonment, found that there was no reason to conclude that the applicant would not be able to draw upon his brothers, at least for some support and guidance in re-establishing himself if he were to be deported.

21    The Tribunal then summarised all of its findings, and decided at [88] that the “primary considerations” weighed “strongly against revocation of the decision to cancel the [applicant’s visa]”. The “other considerations”, to the extent that they were favourable to the applicant, were “given less weight” and were not sufficient to justify, in the Tribunal’s consideration, the revocation of the cancellation decision. The Minister’s decision was affirmed.

Proposed Application to this Court

22    The proposed grounds set out in the draft application for judicial review correspond, in substance, with the grounds of review at [3] to [8] of the applicant’s affidavit, as set out above at [7]. On 7 June 2018, I ordered that the applicant file and serve any affidavit containing additional evidence by 27 July 2018 and to file and serve written submissions no later than 10 days before the hearing. The applicant did not file any affidavit nor any written submissions. As the applicant was not legally represented, none of this is surprising.

23    I must assess the merits of the applicant’s grounds of review in an impressionistic way: MZABP v Minister for Immigration and Border Protection (2016) 242 FCR 585. In that respect, the Minister made the following submissions about each of the grounds.

24    In relation to the first ground concerning unreasonableness, the Minister submitted that the Tribunal had carefully canvassed the evidence, addressed each of the criteria it was required to consider, and explained the conclusions that it had reached in a way which demonstrated that its reasons provided an evident and intelligible justification for its decision: Minister for Immigration and Border Protection v Eden (2015) 240 FCR 158 at [64]. I agree with that submission. The Tribunal’s decision falls within the area of “decisional freedom” within which a decision-maker has a free discretion: Eden at [62]. Each of these findings represented a logical conclusion based on an assessment of the evidence and the facts. In my view, this ground has no real prospects of success.

25    The second ground alleged error of law, but no error was ever identified. As a matter of fairness, the Minister drew to the Court’s attention the following two potential errors of law:

(1)    first, in its consideration of Australia’s non-refoulement obligations at [70], the Tribunal observed that if there were substance to the applicant’s contention that if returned to New Zealand he would be in jeopardy, this could always be addressed by the making of an application for a protection visa. This gave rise to the potential existence of an error of law of the kind considered in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456. However, a fair reading of the Tribunal’s decision shows that it assessed the merits of this claim and found that it was not soundly based; and

(2)    secondly, there is a requirement that a decision-maker must explicitly or implicitly determine whether revocation is or is not in a child’s best interest: cf Nweke v Minister for Immigration and Citizenship (2012) 126 ALD 501; Spruill v Minister for Immigration and Citizenship (2012) 135 ALD 45. In my view, and again on a fair reading of the Tribunal’s decision, it implicitly made such determination in considering the best interests of the son of the applicant’s partner in deciding that revocation was unlikely to affect overall the best interests of the child. In that respect, one should be mindful of the need not to construe the reasons of the Tribunal minutely with an eye keenly attuned for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.

26    The second ground has no real prospects of success.

27    The third and fourth grounds of review were that the Tribunal took into account irrelevant considerations or failed to take into account relevant considerations, but on each occasion, the said considerations were never identified. The Minister submitted that the Tribunal paid close attention to the claims made in the evidence before it, and had not omitted to consider anything material.

28    When he appeared before me, I asked the applicant whether there were any facts contained in the Tribunal’s reasons for decision which, in his view, were incorrect or irrelevant. He repeated that he had not been given any legal assistance, and submitted that the Tribunal had wrongly found as a fact that he was a threat to the Australian community. I then asked the applicant whether there was any relevant evidence or material which in his view the Tribunal had overlooked or had not referred to. He replied with a contention that the Tribunal had not looked into, or considered, the long-term harm, in particular psychological harm, to the boy he described as his “stepson”; that the Tribunal had also failed to refer to the fact that the applicant’s brothers were locked up in prison, and that the same thing would happen to him; and that the Tribunal had not considered the position of his mother and sister in Australia.

29    In my view, the findings made by the Tribunal about the risk to the Australian community were open to it to make. No irrelevant considerations were taken into account by it.

30    It is also my view that the applicant had a fair opportunity to make submissions about the risk of harm to his “stepson” and the Tribunal expressly considered that possibility. It did not agree with the applicant that the best interests of the child were likely to be adversely affected by his deportation. It did so after making findings of fact that were open to it to make. Similarly, I find that the Tribunal did consider the potential impact of the applicant’s possible deportation upon the applicant’s mother and sisters. At [90] it concluded:

As for the relationship and effect on his extended family including his mother and sister, whilst one must appreciate how they would feel it is submitted that whilst in the Applicant’s favour, this factor does not weigh heavily enough to justify revocation of the decision to cancel the Applicant’s Visa.

31    As for the brothers, the Tribunal did not expressly state that they were in prison. However, I am not satisfied that this was overlooked by the Tribunal. It carefully qualified the possibility of receiving fraternal assistance when it found at [81] that the brothers would be able to supply “some support and guidance” and then referred at [91] to “potential sources of family support”. Inferentially, these qualifications reflect an awareness of the position of the brothers. The failure to expressly advert to their current imprisonment is not an error of law. Even if this fact has been overlooked, in my view, it is not material evidence. It would not have altered the Tribunal’s conclusion at [91] as follows:

Whilst having to relocate to New Zealand would entail practical difficulty for the Applicant, there are no significant impediments to which he would be exposed if he were to be returned to and he has means to establish himself and gain employment alongside potential sources of family support.

32    As such, even if there had been a failure to consider this fact, it would not have constituted an error of law: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780. I also find that it was open to the Tribunal to reject the applicant’s claim that he would be subject to jeopardy if he were to be sent to New Zealand.

33    The third and fourth grounds have no real prospects of success.

34    The fifth proposed ground of review was that the Tribunal’s decision did not comply with the rules of natural justice and the applicant was denied procedural fairness. Again, how the applicant was denied procedural fairness was never identified. The applicant had made submissions to the Minister. Those submissions were before the Tribunal. The applicant made submissions to the Tribunal. Evidence was led from himself, his mother and his sister. All this material was then considered by the Tribunal. In the circumstances, the applicant was not denied procedural fairness. This ground has no real prospects of success.

35    The sixth proposed ground of review was that there was insufficient evidence, or no evidence, to support findings made against the applicant. Again, nothing was particularised in support of this ground. Accordingly, in my view this ground has no sufficient prospects of success.

36    The final proposed ground of review, which was not contained in the draft originating application but was raised by [9] of the applicant’s affidavit, was that the Tribunal had failed properly to exercise its discretion under s 501CA(4) of the Act. By this contention no error of law was identified, and to the extent that it invited the Court to reconsider the way in which the Tribunal had exercised its powers, it appears to raise impermissibly merits review. It follows that this ground has no real prospects of success.

37    For the foregoing reasons, any application for judicial review would have no prospects of success and would accordingly be futile. It follows that, notwithstanding my findings concerning the extent of, and reasons for, delay, and the absence of prejudice to the Minister, the application for an extension of time should be dismissed with costs as assessed or agreed.

Associate:

Dated:    8 November2018