FEDERAL COURT OF AUSTRALIA

Salapo v Minister for Home Affairs [2019] FCA 67

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The applicant seeks judicial review of a decision of the Assistant Minister for Immigration and Border Protection under s 501CA(4) of the Migration Act 1958 (Act) not to revoke the decision of a delegate of the Minister made pursuant to s 501(3A) to cancel the applicant’s Special Category (Class TY) visa (cancellation decision).

2    The decision was made on 27 November 2017 and the applicant filed his application for review on 19 March 2018, which is some 77 days outside the time provided for pursuant to s 477A(1) of the Act. Accordingly, pursuant to s 477A(2) of the Act, the applicant requires an extension of time to file his application. The applicant has not filed a separate document in which he states the grounds upon which he contends that the decision should be overturned. However, in Ground 2 of his Originating Application he says:

Being a father of four and a loving partner. I believe I can make a change in my life style and habits. Above my mistakes, Trials and tribulations, my kids needs me and I need them. My kids are at an age where they need guidance and advice by their parents. I do not condone what I have done, but I do own up to it. I show full remorse about my behaviour. We’re a real tight family. I always look forward to the times they come to visit me. Keeping in contact with my family is everything.

3    The cancellation decision was made on 14 December 2015 under s 501(3A) of the Act. The delegate was satisfied 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), and because he was serving a sentence of imprisonment on a full-time basis in a custodial institution for a criminal offence. Section 501(7)(c) of the Act provides that for the purpose of the character test, a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more. On 15 July 2016, the applicant was convicted in the District Court of New South Wales of “Aggravated break and enter and commit serious indictable offence – people there” for which he was sentenced to 42 months’ imprisonment.

4    The applicant is presently in immigration detention. He was served with notice that he was to be removed from Australia on 21 March 2018, whereupon he filed his present application and sought urgent orders from the duty judge to restrain his deportation. The Minister consented to the orders, and the matter was subsequently listed for hearing on 15 October 2018. The Minister filed written submissions in advance of the hearing and was represented by Mr Greg Johnson of counsel. On that date a solicitor appeared for the applicant and sought an adjournment on the basis that she had only recently been retained. That application was granted and the hearing of the proceedings was adjourned until 28 November 2018. Shortly prior to that date, the solicitor filed a Notice of Intention to Cease to Act. When the proceeding was called the applicant represented himself and sought a further adjournment to enable him to secure representation. That adjournment was granted and the final hearing was set for 17 December 2018. On that occasion the applicant again represented himself at the hearing and did not file any submissions. The Minister was again represented by Mr Johnson and relied on the submissions that he had filed earlier.

2.    THE RELEVANT LEGISLATION

5    Section 501(3A) of the Act provides:

(3A) The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

6    Section 501CA(3) of the Act provides:

(3)  As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

7    Section 501CA(4) of the Act provides:

(4) 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.

3.    LEGAL PRINCIPLES

8    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.

9    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.

10    The Minister has a discretion under subsection 501CA(4)(b)(ii) to revoke the cancellation decision despite being satisfied that the person does not satisfy the character test, if the Minister is satisfied that there is “another reason” why the decision should be revoked. It is apparent from the terms of subs 501CA(4)(b)(ii) that this discretion is a broad one, pursuant to which the Minister may have regard to factors such as: the impact that cancellation of the visa may have upon the individual concerned, her or his family, and the Australian community; and the risks of harm to the person if she or he is returned; BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 at [24] (Bromberg, Davies and Mortimer JJ); Poroa v Minister for Immigration and Border Protection [2017] FCA 826; (2017) 252 FCR 505 at [10] (Perry J).

11    The Court’s jurisdiction is limited to deciding whether the Minister’s decision was made lawfully under the Act, that is, whether the Minister’s non-revocation decision is invalid by reason of a jurisdictional error. The Minister would make a jurisdictional error if, for example, she or he failed to consider a mandatory relevant consideration (such as the risk of harm to the community posed by the applicant), or failed to give him an opportunity to make representations on whether the cancellation decision should be revoked: 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] HCA 58; (1995) 184 CLR 163 at 179 (the Court). However, the Court does not have jurisdiction to decide for itself whether or not the Minister’s decision not to revoke the cancellation decision is the correct or preferable decision: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719;(1999) 93 FCR 220 at [65] (Sackville J (North J agreeing at [129])), [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). As such, it is not open to the Court to decide whether it agrees with the Minister’s decision. The Court’s role is limited to deciding whether the Minister made a legal error justifying setting aside his decision and requiring the Minister to make a new decision.

4.    THE DECISION

12    The Minister concludes in the decision that he has taken into account the applicant’s representations and has considered whether he is satisfied that there is another reason why the original mandatory visa cancellation decision should be revoked. In determining that it should not be, the Minister summarised the submissions made on behalf of the applicant as follows:

12.    In the representations/document submitted by or on his behalf, Mr SALAPO has articulated reasons why the original decision should be revoked, which include:

•    his offending resulted largely from substance abuse, which began when he had to cope with emotional trauma from his early life, having experienced violence from his father as a youth, when his first girlfriend hung herself at his home, and continued with the deaths of his parents when he was an adult;

•    he is remorseful for his offences and is confident he will not reoffend, having undertaken rehabilitative training courses in prison;

•    he has four minor children in Australia. He lived with them and played a major part in raising them, and maintains contact with them despite being separated from his former partner. The[y] need him to remain in Australia and he wants to remain here to provide for them;

•    he has been in Australia for a long time and considers himself Australian;

•    his three siblings live in Australia and his parents are buried here;

•    he does not have any contact with any relatives in New Zealand;

•    he has been in full-time employment during most of his adult life in Australia.

13    The Minister then moved on to consider the best interests of the applicant’s minor children, the strength, nature and duration of the applicant’s ties to Australia, the extent of the impediments that the applicant would face if he is removed from Australia to New Zealand, and the protection of the Australian community.

14    In relation to the best interests of the applicant’s children, the Minister found that while it would be in the children’s best interests that the cancellation decision be revoked, the extent of any negative impact arising from non-revocation would be tempered by factors identified by the Minister, including that several of the applicant’s instances of violence against his ex-partner were committed in the presence of the children, and that the applicant had repeatedly breached apprehended violence orders issued to protect his ex-partner.

15    In relation to the strength, nature and duration of ties to Australia, the Minister noted that as the applicant had lived in Australia for 19 years, the Australian community may afford a higher tolerance of criminal conduct, but this tolerance was reduced considering the applicant’s offending commenced at a young age, shortly after he arrived, and that he has since developed a history of repeated offending. The Minister gave weight to the applicant’s contributions to the community, and it was noted that non-revocation would entirely remove the possibility of the applicant assisting his ex-partner with the children.

16    In relation to the extent of impediments if the applicant is removed, the Minister considered that the applicant would not face substantial language or cultural barriers if returned to New Zealand, but noted that his separation from his family in Australia would have a significant adverse effect on his state of mind. The Minister indicated that he was mindful that the applicant lacked a personal support network in New Zealand.

17    In relation to the protection of the Australian community, the Minister considered the applicant’s offending to be very serious. He referred to the domestic violence aspect of much of the offending, and noted that in sentencing Mr Salapo in 2016, the District Court judge remarked:

One of the appalling aspects of such offences is that they fracture the family unit in a way that, again, tragically is destructive in particular for the children of such a unit. There is significant research indicating that parents who go to gaol are often followed by their children who go to gaol.

18    The Minister had regard to the expanse of criminal offending that commenced in 1998 when the applicant was a teenager, and continued up to 2016. The decision records that the applicant had been convicted of a range of offences over this period, including robbery armed with offensive weapon, common assault, breach of bail and contravening apprehended violence orders. The Minister observed that the applicant had developed a record of repeated domestic violence offences since 2012. He considered that the applicant’s offending had become somewhat more serious over time, particularly as his children were present during the later attacks on their mother. The Minister noted that the significant custodial sentence received for the latest offence was indicative of the serious nature of the offending and that the applicant’s overall criminal history was serious.

19    In relation to the risk to the Australian community, the Minister considered that the applicant presented an ongoing risk that he would re-offend, having regard to the background of his offending, and determined that re-offending could result in physical or psychological harm to the community. The Minister took into account rehabilitation courses undertaken by the applicant. He took into account the sentencing remarks of the District Court in 2016 in finding that the applicant had shown some contrition, remorse and insight into his offending. The Minister noted that in 2007, the Department of Immigration and Border Protection issued the applicant with a notice of intention to consider cancelling his visa in response to earlier offending. The Department decided not to cancel the visa, taking into account a letter from the applicant in which he stated that he would not reoffend due to a supportive family, rehabilitation courses and offer of employment. The Minister noted that although there was a period of abstinence after this, the applicant had nevertheless returned to drug use and criminal offending. In view of this background, the Minister gave only very limited weight to the applicant’s current submissions that he has learned his lesson, benefited from rehabilitative training, has employment available to him, and will not reoffend. Ultimately, the Minister accepted that although the applicant has a degree of insight into his repeated relapses into drug use, in light of his recidivism over a sustained period and his demonstrated lack of regard for the law, there is an ongoing risk that the applicant will reoffend.

5.     CONSIDERATION

20    The applicant requires an extension of time within which to appeal. In his affidavit in support of his application for review, the applicant states as follows:

The reason I am lodging this application is because, while I was in jail, I received my revocation letter, I didn’t have any legal advice at the time and did not have the resources to file an appeal. The welfare person in jail that was receiving my paper work wasn't always there to give it to me. Around the time my decision was made the welfare person was getting ready to go on holidays and wasn’t able to assist me help in my case. Also I was getting transferred from jail to jail. On one of my transfers from jail to jail, the officers lost my all my property including all my paper work. I feel like I was at a Disadvantage by not being able to receive proper legal advice when needed. So as in the above paragraphs these are my reasons of not lodging my paperwork in time, so that is why I am asking for an extension of time.

21    In his originating application, the applicant states in Ground 1 that the extension should be granted because he was in prison at the time that he received his revocation decision, and was at a disadvantage because he was not able to receive legal advice when needed. He states that he did not have the resources to file an appeal and that at the time that he needed to file his notice of appeal he was moved from prison to prison.

22    The applicant does not identify any basis upon which he contends that the Minister fell into jurisdictional error in reaching his decision. Ground 1 of this originating application is directed to his application for an extension of time. Ground 2 (quoted in [2] above) might be considered to raise matters that bear on the decision of the Minister, but they are directed solely to the merits of the application itself and amount to a challenge to the weight or emphasis placed on various factors by the Minister. The Minister correctly submits that the ground advanced amounts to no more than a disagreement with the Minister on matters going to weight in relation to the factors that the Minister was bound to consider. They do not identify jurisdictional error; see [11] above.

23    At the hearing the applicant submitted that the Minister failed in his reasons to consider the position of his children. He contended that he has a close relationship with his children and that his relationship with them warranted more consideration. He further submitted that the Minister made an error by failing to have regard to a letter that his former partner, the mother of his children, had submitted in 2016. Reference was made to that letter in the District Court judge’s sentencing remarks in 2016. The applicant submitted that the Minister wrongly said that it had not been provided to him.

24    In my view neither of these additional submissions enables a finding of jurisdictional error on the part of the Minister. In his decision he identifies each of the applicant’s four minor children, and notes that they live with their mother, the victim of the majority of the applicant’s domestic violence offences since 2007. He also refers to the lengthy submissions going to the applicant’s close relationship with each of his children and notes the applicant’s involvement in providing them with support. The Minister accepts that the applicant was closely involved in his children’s lives and formed close bonds with them, that they need him in Australia to provide stability to them and that they worry about whether he will have his visa cancelled. Having taken these matters into account, the Minister weighted those matters in the mix in the exercise of his discretion. He concludes that it is in the best interests of each of the four children that he revoke the cancellation decision, in order that they have the opportunity to have direct physical contact with their father, but considers that the extent of any negative impact arising from non-revocation would be tempered by other factors. Those other factors include the fact that several of the applicant’s domestic violence offences were committed in the presence of the children, including the most recent offending, where the applicant’s eldest son tried to stop him.

25    In [19] of the decision the Assistant Minister says:

I further note that the Courts have issued several Apprehended Violence orders against Mr Salapo to protect his ex-partner, which he has repeatedly breached. I consider it very likely that such orders continue to be in force, preventing or substantially restricting Mr Salapo’s access to his ex-partner’s home, where the children live. In the absence of current supporting submissions from his ex-partner, I am in some doubt that she agrees to Mr Salapo having access to the children, noting that this was agreed to in the past be he failed to comply with the conditions for access.

26    The applicant contends that a letter from his ex-partner (Ms Mohi) that was supplied to the District Court sentencing judge in 2016 was also provided to the Minister, but that he erroneously failed to have regard to it. No evidence supports that proposition. The existence of such a letter has not previously been identified in any documents advanced by the applicant. The Minister refers to the letter being before the District Court sentencing judge in [24] of his reasons, where he addresses the applicant’s past relationship with his ex-partner. He notes that the courts had described his relationship with the ex-partner as “on and off’ and that there is no evidence before him to suggest that she is willing to resume the relationship. In this context the Minister says:

I note mention is made in the sentencing remarks of 16 July 2016 that Ms Mohi had written a letter in support of revocation; no such letter has been received by the Department. Nonetheless I am aware that a decision not to revoke the cancellation of Mr Salapo’s visa will likely cause Ms Mohi a degree of financial and practical hardship given it will entirely remove the possibility of Salapo assisting her with their children.

27    However, the reference made by the Minister in [19] to the absence of supporting submissions from the applicant’s ex-partner is not a reference to the 2016 letter supplied to the District Court judge. It is to the absence of any current (as at 27 November 2017) supporting submission. The applicant does not contend that such a supporting submission exists. Accordingly, even if the applicant were correct that the letter provided to the sentencing judge had been sent to the Minister but lost or not received, then that would not be material to the Minister’s findings concerning the best interests of minor children. Further, quite separately of that, the finding at [24] makes plain that even if the Minister had the letter before him, it would not make any difference to the result, as the Minister took into account the likely hardship that cancellation would cause Ms Mohi.

28    Further, there is no obligation on the part of the Minister to seek out the letter to which the sentencing remarks refer; SZIAI v Minister for Immigration and Border Protection [2008] FCA 1372 (Flick J) at [18].

29    The applicant is in difficult circumstances. He has been first in prison and then in immigration detention. During that time he has received notice of the mandatory cancellation of his visa and has subsequently made submissions in support of the revocation of that decision. He was then notified of the decision not to revoke the cancellation decision. He had limited legal or other assistance whilst in prison. Those factors are in favour of the grant of an extension of time. However, on balance I am not satisfied that it is in the interests of justice to do so. The application for an extension was a fairly significant amount out of time (some 77 days) and the applicant’s affidavit is scarce on detail as to the steps that the applicant took to help himself during that time. More significantly, no basis has been advanced upon which the decision of the Minister is likely to be successfully challenged, and my review of the reasons of the Minister identifies none. Accordingly, in my view the interests of justice are not in favour of the grant of an extension of time.

6.    DISPOSITION

30    The application must be dismissed, with costs.

Associate:

Dated:    5 February 2019