FEDERAL COURT OF AUSTRALIA

Downing v Minister for Immigration and Border Protection [2019] FCA 1684

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time to apply for judicial review of the decision of the second respondent is dismissed.

2.    The applicant must pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    Martyn Keith Downing seeks an extension of time to apply for judicial review of the decision of the Administrative Appeals Tribunal in Re Downing and Minister for Home Affairs [2018] AATA 4592. The Tribunal had affirmed the decision of a delegate of the first respondent (the Minister) not to revoke the mandatory cancellation of Mr Downing's visa. The visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) because Mr Downing's extensive criminal record meant that he did not pass the character test.

2    Mr Downing was born in the United Kingdom in 1972 and came to Australia with his parents when he was five months old. He has lived in Australia continuously since then.

3    The delegate's decision not to revoke the cancellation of the visa was made under s 501CA(4) of the Migration Act, so the Tribunal's jurisdiction to review the decision was conferred by s 500(1)(ba). This court's jurisdiction to review the Tribunal's decision is therefore conferred by s 476A(1)(b) of the Migration Act. Under s 477A(1), an application invoking that jurisdiction must be made within 35 days of the Tribunal's decision. Here, the Tribunal made its decision on 12 December 2018, and Mr Downing did not lodge his application until 5 February 2019. On that date he tried to lodge the application in the Federal Circuit Court of Australia, which does not have jurisdiction to review the Tribunal's decision, and it was not until 13 February 2019 that Mr Downing lodged the necessary application in this court. That was 28 days after the time limit under s 477A(1) expired. Hence Mr Downing needs an extension of time.

Principles on an application for an extension of time

4    Section 477A(2) of the Migration Act empowers the court to extend the 35 day period as it considers appropriate, provided that the court is satisfied 'that it is necessary in the interests of the administration of justice' to do so.

5    The court has generally treated the factors identified by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 as the main considerations that it should take account in exercising the discretion whether to extend time. In summary those factors are as follows:

(1)    While there is no requirement to show special circumstances, an extension should not be granted unless the court is satisfied that it is proper to do so. The prescribed period is not to be ignored.

(2)    An acceptable reason for the delay is normally required.

(3)    Any prejudice to the other parties, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension. But the mere absence of prejudice is not enough to justify an extension.

(4)    The merits of the application or appeal that will proceed if an extension of time is granted should be taken into account.

6    In relation to the last of these, in SZUTY v Minister for Immigration and Border Protection (No 2) [2016] FCA 289 at [53]-[55] Katzmann J set out the following principles:

First, while a strong case will weigh heavily in the applicant's favour, an apparently weak, but arguable case does not weigh against the grant of an extension: Seiler v Minister for Immigration, Local Government and Ethnic Affairs(1994) 48 FCR 83 at 98 (French J).

Secondly, as Mortimer J observed in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63], when the question of merits is considered on an application for an extension of time, a court is not concerned with whether the applicant will ultimately succeed, but whether he or she has a reasonably arguable case.

Thirdly, it is not in the interests of justice to extend the time to appeal from a judgment which is plainly right or where the proposed appeal is bound to fail. In such a case it would be futile to do so.

7    Thus it is sometimes said that the prospects of the proposed appeal must be assessed at a reasonably impressionistic level: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] (Mortimer J).

The explanation for the delay

8    Mr Downing was represented by counsel in the Tribunal hearing but he has had no legal representation on this appeal. On 23 July 2019 he swore an affidavit which gave the following explanation for his delay in lodging the application:

1.    The move from jail to detention was a shock then I got the decision.

2.    My sister tried to get a loan for a lawyer and was unsuccessful.

3.    I rang many lawyers asking for probono assistance including the law society of WA again with no success this was sending my case and waiting for them to review.

4.    I filed my federal court papers they done incorrectly so this also caused a delay.

5.    I asked justice Jackson twice for probono assistance again with no success.

These are reasons why my application for extension was lodged as soon as I could with out legal assistance.

9    Paragraph 4 appears to be a reference to the attempt to file the application in the Federal Circuit Court on 5 February 2019. One may have sympathy for a self-represented litigant who is unable to identify which court has jurisdiction to hear their matter, and files the papers in the wrong court. In the present circumstances I accept the explanation for the delay between 5 February and 13 February 2019 as adequate. But usually an explanation of that sort will only ever explain a relatively short delay. Here, it leaves the 20 days between 16 January 2019 (when the time for making the application expired) and 5 February 2019 requiring some other explanation.

10    Paragraph 5 of the affidavit is not relevant, as it refers to events after these proceedings were commenced. So Mr Downing's explanation for the main part of the delay is that he was unable to obtain legal representation. While the affidavit does not give much detail about that, it does refer to specific steps, namely the attempt to get a loan and the sending of the materials to the Law Society of Western Australia for review. Mr Downing gave more detail about his efforts from the bar table at the hearing of the application and the Minister did not object to my taking that detail into account.

11    I accept that the steps that Mr Downing took were reasonable ones to take and are likely to have occasioned some delay. In particular the inevitable shortage in resources for agencies such as pro bono clearing houses means that the time frames within which such agencies review requests for pro bono assistance are not always compatible with the time limits on making applications. I also take into account that Mr Downing was making these efforts over the Christmas and January legal breaks, which would have contributed to the delay. This is not to say that the mere absence of legal assistance or representation provides an adequate explanation for the delay. It will always depend on the particular circumstances. But here Mr Downing has provided credible evidence of efforts made in earnest to secure the legal assistance which would have helped put the appeal on a proper footing, in circumstances capable of explaining why lodging the documents took longer than the 35 day time limit.

12    The delay, while not insignificant, is also not unduly long in the circumstances. Counsel for the Minister confirmed that the Minister did not say he was prejudiced by the delay. On balance, I consider Mr Downing's explanation for the delay to be adequate.

The merits of the proposed grounds of review

13    Mr Downing accepts that he does not pass the character test.

14    Pursuant to directions made in these proceedings, Mr Downing filed an amended 'originating application' which I will take as setting out six proposed grounds of review for the purposes of his application for an extension of time. I will now consider each in turn in order to assess whether it is sufficiently arguable to mean that it is in the interests of the administration of justice for Mr Downing to have an extension of time to apply for judicial review.

15    I must do so against the background of two important matters. The first is that the court's jurisdiction to review is founded on finding a jurisdictional error in the Tribunal's decision: Leone v Minister for Home Affairs [2019] FCA 1610 at [6] (O'Bryan J). It is not a full appeal on the merits and to go into the merits in order simply to determine whether the decision was correct and preferable is something the court is not permitted to do: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-38 (Brennan J).

16    The second important matter is to note that at the time of the Tribunal's decision, it was required by s 499(2A) of the Act to comply with Ministerial Direction 65, which set out a number of requirements as to matters that the Tribunal had to take into account and how to weigh those matters in making its decision as to whether to revoke the cancellation of Mr Downing's visa.

Proposed ground 1 - failure to consider length of time in Australia

17    Ground 1 (without particulars) is:

The Second Respondent [the Administrative Appeals Tribunal] failed to properly consider how long I have resided in Australia.

18    In the particulars, Mr Downing claims that the Tribunal's finding at paragraph 179 that he has lived in Australia 'almost all of his life' was incorrect. But it is not; it is an accurate way of describing the time in Australia of someone who came here when he was 5 months old.

19    The particulars also claim that the Tribunal did not consider the fact that Mr Downing has been in Australia since he was five months old. That is also incorrect. The Tribunal referred to that fact under the heading of the consideration made mandatory by Direction 65 of the strength, nature and duration of ties to Australia. That required the Tribunal to have regard to, among other things, 'How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child …'. At paragraph 179 the Tribunal acknowledged that Mr Downing had arrived in Australia as an infant. At paragraph 186, after considering other factors relevant to his family ties to Australia (which I will mention below), the Tribunal concluded:

Given the young age at which the Applicant entered Australia, the length of time that he has resided here, and the extent of his family ties in Australia and the impact of his removal on some of those family members, the Tribunal finds this factor weighs in favour of the revocation of the Reviewable Decision.

20    Mr Downing's real complaint about the way the Tribunal dealt with the significance of his time in Australia, which is also made in the particulars to ground 1, is that the Tribunal failed to give it adequate weight in its final determination. But the process of the weighing of considerations was a matter for the Tribunal alone: Sami v Minister for Immigration and Citizenship [2013] FCAFC 128; (2013) 139 ALD 1 at [21] (Jagot, Barker and Perry JJ).

21    The particulars to ground 1 also allege (italics in original) that:

The assertion in para 195 that After living for such a long time in Australia he would undoubtedly face some difficulty in re-establishing himself in the U.K. ,but any difficulty would not be insurmountable does not account for my fragile mental health and physical impediment.

22    It is not clear what physical impediment Mr Downing is referring to here. From the bar table he said it concerned his back and his knee. He said that he had drawn the back problem to the Tribunal's attention at the hearing. There was no transcript available to make good that claim.

23    I will nevertheless assume in Mr Downing's favour that he did draw the back condition to the Tribunal's attention. If so, it would seem that the Tribunal overlooked that, since at paragraph 196 the Tribunal noted that Mr Downing was 46 years of age and that there was no evidence that he had any physical health concerns.

24    However the Tribunal clearly did take into account the impact that removal to the United Kingdom would have on Mr Downing's mental health. It recorded the submission contained in his statement of facts issues and contentions (SFIC) at paragraph 191 that his rehabilitation was 'significantly dependent on remaining in Australia' and noted that he was, in the words of the SFIC, 'extremely fearful of the possibility of his mental health conditions recurring due to the shock of re-adjusting to an unfamiliar environment'. It quoted a passage from a report by a psychiatrist submitted on Mr Downing's behalf, Dr Watts, that supported the reasonableness of that fear. It then made the finding quoted above which Mr Downing seeks to impugn.

25    At paragraph 200, however, the Tribunal accepted the evidence that Mr Downing's return to the United Kingdom 'may make his rehabilitation more challenging and may impact his mental health'. The Tribunal found at paragraph 201 that, on balance, the impediments that he would face on return weighed in favour of revoking the visa cancellation. But the Tribunal did not give the consideration significant weight.

26    So there is no merit in the contention that the Tribunal did not take account of Mr Downing's mental health issues and the difficulties they might cause him if he were removed to the United Kingdom. Once again, Mr Downing's true complaint is that the Tribunal did not give that enough weight. That is an invitation to the court to engage in impermissible merits review. This complaint does not reveal any jurisdictional error.

27    As far as Mr Downing's back condition goes, it is clear that even if the Tribunal had taken that into account, it would have made no difference to its decision. The Tribunal's findings at paragraphs 199-201 were as follows (footnotes omitted):

199.    … The Tribunal notes that travel advice from the Department of Foreign Affairs and Trade states that the standard of medical facilities in the UK is comparable to Australia. In addition, UK citizens have access to the National Health Service (NHS) hospital and GP services. There is no evidence to suggest that the Applicant would not have the same access to social, economic and medical support as other UK citizens.

200.    The Tribunal accepts that the Applicant is likely to face impediments and hardship if returned to the UK and that he would be required to seek drug and mental health support services in that country if returned. The Tribunal accepts the evidence that his return to the UK may make his rehabilitation more challenging and may impact his mental health.

201.    For these reasons, in all of the Applicant's circumstances, the Tribunal accepts that there are impediments if removed and that this on balance weighs in favour of the revocation of the Reviewable Decision. However, also for the reasons outlined above, the Tribunal does not give this consideration significant weight.

28    Paragraph 199 indicates that if the Tribunal had considered Mr Downing's back problem, it would have concluded that he would have access to the same level of medical care that he has here. (Mr Downing asserted from the bar table that this was incorrect, but there is no evidence of that, and nothing to indicate that it was not a finding reasonably open to the Tribunal in view of the country information on which it did rely). Paragraph 200 shows that the Tribunal considered that Mr Downing's mental health did mean he faced impediments on return to the United Kingdom and paragraph 201 shows that the Tribunal found that the impediments weighed in favour of revoking the visa cancellation, but not in a significant way. I do not consider there is any realistic possibility that consideration of Mr Downing's back issue would have changed that finding, or the Tribunal's ultimate decision: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599 at [45].

29    The conclusion of the Tribunal's reasons at paragraphs 202-212 reveals that the Tribunal had regard to all the circumstances and, having regard to the extensive length and seriousness of Mr Downing's offending, it considered that the primary considerations of the protection of the Australian community, the expectations of that community and the interests of Mr Downing's great-nephew all outweighed the other considerations, including his strong family ties in Australia and the impediments he would face if he were returned to the United Kingdom. That conclusion was plainly open to the Tribunal. Proposed ground 1 is not reasonably arguable.

Proposed ground 2 - driving offences

30    Ground 2 (without particulars) is:

The Second Respondent failed to consider that my last driving- or licence-related offence was committed on 19 June 2010.

31    There is no merit in this. It is factually incorrect. A National Police Certificate for Mr Downing that was before the Tribunal shows that he was convicted of driving offences as recently as 2014 and 2017. When I raised this with Mr Downing, he drew a distinction between driving without a driver's licence, which he admitted he did frequently while in his twenties, and driving a vehicle that was not registered, which is what he was convicted of in 2014 and 2017. But it is difficult to grasp the relevance of the distinction.

32    In any event, there is no evidence that the claimed absence of driving offences for eight and a half years was put to the Tribunal as a distinct submission so that, conceivably, a failure to consider it might be a jurisdictional error. But even if it was, in my view it is subsumed in the finding that he would be likely to reoffend in that way. The Tribunal was not required to refer to every contention put to it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]. It did make a finding about the risk of Mr Downing committing further driving offences.

33    There is nothing in the materials to support the contention that the Tribunal failed to take the times at which the offences occurred into account. In view of the convictions in 2014 and 2017, that submission is unsustainable. The frequency of Mr Downing's driving offences as well as the fact that he committed other serious offences after 2012 means there is no room for a claim that the Tribunal's finding about the risk of future driving offences was unreasonable, illogical or lacking in any foundation in the evidence.

34    Also, the first time the Tribunal considered the driving offences was in the course of its consideration, mandatory under Direction 65, of the nature and seriousness of Mr Downing's criminal conduct. The Tribunal reviewed a record that included grievous bodily harm (involving deliberately driving into a group of people multiple times and injuring two of them), manufacture of methylamphetamine, stealing and burglary (including a 'ram raid' on a pharmacy), use and possession with intent to sell or supply of prohibited drugs, gaining a benefit by fraud and attempting to pervert the course of justice (see paragraph 66). The second time the Tribunal considered the driving offences was during its mandatory consideration under Direction 65 of the risk to the Australian community should Mr Downing commit further offences or engage in other serious conduct. In both cases the Tribunal correctly considered the driving offences in the context of cumulative assessments of Mr Downing's record and the risk of reoffending: see paragraphs 86, 87, 92 and 122. Even assuming that the Tribunal did fail to consider the absence of driving offences since 2012, the number and serious nature of Mr Downing's ongoing non-driving offences means there is no realistic possibility that this would have resulted in the Tribunal making a different decision. As such there is no jurisdictional error: SZMTA at [45].

35    The same conclusion would follow even if I were to accept another point Mr Downing made from the bar table, which was a claim that he disclosed to the Minister that he has obtained a valid driver's licence, which would make it impossible for him to commit the offence of driving without such a licence. Mr Downing said that this fact was not disclosed to the Tribunal. But Mr Downing was legally represented before the Tribunal and his counsel could have produced the licence if it was thought to be relevant. Mr Downing said that it was 'written in my submissions' but there is no reference to a current driver's licence in the two SFICs filed on his behalf, or in the statutory declaration he provided to the Tribunal. The Tribunal cannot have committed any error in failing to consider a matter not disclosed to it. But even if it had considered it, for the reasons I have given there is no realistic possibility that it would have resulted in a different decision.

36    Proposed ground 2 does not reveal any arguable case of jurisdictional error.

Proposed ground 3 - impact of drug addiction

37    Ground 3 (without particulars) is:

The Second Respondent failed to consider the impact of my addiction on the likelihood I would reoffend and the fact that I did reoffend after receiving a warning, as well as not considering my understanding of the warning itself.

38    The particulars under this ground make two main contentions.

39    The first contention is that the finding the Tribunal made at paragraph 92 failed to address the effect that Mr Downing's drug addiction had on whether he recognised what the 2012 warning meant. This was coupled with a claim that the Tribunal failed to consider that Mr Downing always thought he was 'an absorbed citizen' so he did not understand the warning.

40    The second contention was that the Tribunal's finding at paragraph 92 did not address the impact that the drug addiction would have on the risk of reoffending, given that he had not used drugs for a period of time. The particulars also refer to the fact that Mr Downing was on parole at the time the visa was cancelled, indicating that the parole board considered that he was not a danger to the community, and to the fact that the parole order required regular drug testing. They say that Mr Downing's drug addiction had been addressed by courses and counselling and that he had the support of the Holyoake community addiction treatment centre. The particulars also refer to a report obtained from a psychologist, Dr Watts.

41    The particulars to ground 3 also refer to Mr Downing's family ties and the length of time he has spent in Australia, but these are the subject of proposed grounds 1 and 4 and I consider them under those headings.

42    Regarding the first contention, there is no evidence that it was raised before the Tribunal. In fact, Mr Downing said from the bar table in relation to the 2012 warning, 'I don't think I ever said I didn't understand it'. In any event, as the Tribunal noted (at paragraph 25), he understood it well enough to make written submissions as to why the visa should not be cancelled.

43    There is some confusion about dates in the Tribunal's decision here. The Tribunal says at paragraph 23 that the 2012 warning was dated 13 July 2012 and then (at paragraph 25) that Mr Downing made written submissions in May 2012, following the issuing of the second 'Notice of intention to cancel'. In fact, the document dated 13 July 2012 was a notice of a decision not to cancel the visa. That document refers to a notice that the visa may be liable for cancellation, which was dated 14 May 2012. Evidently, it was the 14 May document to which Mr Downing's written submissions responded. This confusion does not affect the Tribunal's decision. It was open to it to find, as it did, that Mr Downing received a warning in 2012, but continued to offend after that.

44    As for the second contention, there is no apparent merit in it. The Tribunal considered in detail the evidence of Dr Watts, which was to the effect that if Mr Downing did keep his drug use 'under control', then that would make the risk of reoffending by drug possession, drug manufacturing and fraud to pay for the drugs 'disappear' (although Dr Watts also made a tentative diagnosis of attention deficit hyperactivity disorder leading to problems with impulse control) (see paragraphs 100-101). Dr Watts acknowledged a risk that Mr Downing would relapse into drug use if he did not receive significant support (see paragraphs 103 and 105). Dr Watts' opinion that the risk of reoffending would be low was conditional on whether Mr Downing 'follows through with commitments to continue counselling with Holyoake and seeks to engage with a clinical psychologist to help address anxiety and depressive feelings'.

45    It is not necessary at the stage of an application for an extension of time to go into further detail. At paragraph 116 the Tribunal accepted Dr Watts' evidence, for the most part. It also acknowledged submissions and material produced about Mr Downing's efforts at rehabilitation (see paragraphs 125-128 and 130). But it placed greater weight on the fact that in the past, after completing similar programs, Mr Downing continued with his very serious offending (see paragraph 131). It said he had 'made similar promises in the past' but was unable to keep those promises (see paragraphs 137 and 139-141).

46    It is therefore clear that the Tribunal gave detailed consideration to the evidence before it on Mr Downing's risk of reoffending. Once again, it was not required to refer to each piece of evidence or contention before it. There is nothing Mr Downing has identified which is capable of being characterised as an integer of his claim which the Tribunal failed to consider.

47    As far as the relevance of his parole conditions goes, the Tribunal rejected Mr Downing's attempt to tender his parole order because it was not served on the Minister at least two business days before the Tribunal held its hearing, as required by s 500(6J) of the Act. The Tribunal, applying Mordechai v Minister for Immigration and Citizenship [2011] FCA 986; (2011) 196 FCR 509, held that this required two clear business days, when Mr Downing had served the document on the Wednesday morning before the Friday hearing. Mr Downing does not challenge that aspect of the Tribunal's decision, and it is not apparent that there is any basis on which he could do so. The Tribunal's omission to mention Mr Downing's parole conditions is therefore explicable by the fact that s 500(6J) prevented it from having regard to the parole record.

48    The Tribunal gave full consideration to the evidence before it about Mr Downing's risk of reoffending, including the impact of his drug addiction, his claims that he had stopped using drugs, and the rehabilitation programs he had undertaken and the support he might receive in the community. In the end, it gave more weight to Mr Downing's past history of reoffending after rehabilitation than it did to his intentions for the future. Ground 3 does not disclose jurisdictional error, and in truth is an attempt to re-agitate the merits. It is not reasonably arguable.

Proposed ground 4 - impact on family members

49    Ground 4 (without particulars) is:

The Second Respondent failed to carry out its statutory task as the impact on my family members was not properly considered.

50    The particulars state that the Tribunal made no finding about the strength, nature and duration of Mr Downing's ties to his nephew, who has autism, and how he will be impacted if Mr Downing is removed.

51    There is no basis for this contention. At paragraphs 148-159 of its reasons the Tribunal gave extensive consideration to the interests of the nephew (referred to in the reasons as the 'Relevant Minor Child'), including the child's autism spectrum disorder. It did so in the context of the requirement in Direction 65 to make a determination about whether revocation was in the best interests of relevant minor children and to treat that as a primary consideration, including the detailed list of factors under that heading. It found that, given Mr Downing's offending, he would be unlikely to be a positive role model. The Tribunal also placed weight on the fact that:

when last afforded the opportunity to assist in the Relevant Minor Child's care, the Applicant involved the Relevant Minor Child's mother in a criminal enterprise designed to feed his own drug habit. In doing so, he facilitated the Relevant Minor Child's mother's own drug habit. His actions could well have cost the Relevant Minor Child the care and protection of his mother for an extended period had the Court not suspended her sentence.

52    This persuaded the Tribunal to conclude that the best interests of the child would not likely be served by the revocation of the cancellation of Mr Downing's visa. The fact that Mr Downing may disagree with this conclusion does not mean that the Tribunal failed to carry out its statutory task.

53    The second contention made in the particulars is that the Tribunal 'did not properly consider that my father will soon need 24-hour care and no one else can give it to him'. At paragraph 181 the Tribunal acknowledged that Mr Downing's father was suffering from declining health and has a history of heart issues and cognitive impairment. At paragraph 184 the Tribunal set out an excerpt from the SFIC which was filed on behalf of Mr Downing. The excerpt acknowledges that his father could be adequately cared for in a nursing home, but says that the family wishes for him to be cared for by the family. It also indicated that Mr Downing's sister would suffer hardship if he was removed from Australia as she has the responsibility to care for her father, but she needs to make a living and has her own medical issues so Mr Downing would be expected to share caring duties if he is released from incarceration.

54    At paragraph 186 the Tribunal concluded:

Given the young age at which the Applicant entered Australia, the length of time that he has resided here, and the extent of his family ties in Australia and the impact of his removal on some of those family members, the Tribunal finds this factor weighs in favour of the revocation of the Reviewable Decision.

55    All this directly contradicts the second contention that Mr Downing makes under the heading of proposed ground 4. The Tribunal did consider the impact of his removal on the care of his ailing father. The submission put on Mr Downing's behalf was not that no one else can care for him, rather it was that although his father could go to a nursing home, Mr Downing would be expected to share in his care if he were to be released from incarceration. And the Tribunal accepted that this weighed in favour of cancellation of the revocation of the visa. In the end, though (at paragraph 211), the Tribunal gave this less weight than the other factors, as it was plainly entitled to do.

56    Proposed ground 4 has no apparent merit.

Proposed ground 5 - warning letter

57    Ground 5 (without particulars) is:

The 2007 warning letter was a big point for the minister's side and it was shown that I did not receive it and 2012 saying I returned a letter even though the warning went to an incorrect address.

58    There is evidence that letters warning Mr Downing that his visa may be cancelled if he continued to offend were sent to him in 2007 and in 2012.

59    The particulars to this ground assert that the delegate and the Tribunal's decisions were influenced by the incorrect belief that Mr Downing did receive the warning letter in 2007. But the Tribunal reviewed the evidence about receipt of that warning carefully, and in the end was not satisfied that Mr Downing had received it, and proceeded on the basis that he had not. Whether the delegate proceeded on a different basis is not to the point as the Tribunal was reviewing the matter afresh, and it is the Tribunal's decision that must be affected by jurisdictional error if it is to be set aside. There is no basis for the suggestion that the Tribunal was influenced by the allegedly false belief that Mr Downing had received the 2007 warning.

60    The particulars also claim that there was no proof of delivery of the 2012 warning, and that it was sent to the wrong address. However at paragraph 14, the Tribunal's reasons record Mr Downing acknowledging in cross-examination at the Tribunal hearing that he received the warning while he was in prison. At paragraph 25 the reasons say that although Mr Downing did not sign the written acknowledgment of receipt of the 2012 warning, he did make submissions to the Minister in 2012 following the issue of the second warning. I have addressed that above. Also, this ground is inconsistent with the acknowledgement in ground 3 that Mr Downing did reoffend after receiving a warning. In light of these matters there can be no jurisdictional error in the Tribunal proceeding on the basis that he did receive the 2012 warning.

61    Proposed ground 5 is not reasonably arguable.

Proposed ground 6 - constitutional issue

62    Ground 6 (without particulars) is:

In the Australian constitution it states (Migration Act 1958) that people from the UK arriving before 1987 but have not taken out Citizenship have been absorbed into the Australian community.

63    This ground appears to be based on the decision of the High Court in Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391. In that case, Mr Taylor had come to Australia as a child and had been absorbed into the Australian community, but had never been naturalised. The Minister purported to cancel his visa under s 501(3) of the Act on the ground that he did not pass the character test. It was common ground that s 501(3) could only be constitutionally valid in its application to Mr Taylor if, at the time of the decision to cancel his visa, he was an 'alien' for the purposes of s 51(xix) of the Constitution. By a majority, the High Court held that he was not.

64    The reasoning of the members of the majority differed, as did their conclusions as to the cut-off date by which a person is taken not to be an alien if he or she has, by that date, been absorbed into the Australian community. For Gaudron and Kirby JJ the cut-off date was 1987 (see [44] and [303]), for McHugh J it was 1973 (see [135]) and Callinan J appears to have agreed with both (see at [377]-[378]). Either way, Mr Downing having arrived in Australia in 1972, it may be accepted that if Re Patterson lays down any binding principle on the point, and if the assumption that the 'immigration and emigration' power in s 51(xxvii) of the Constitution did not support s 501 was correct, then it would be reasonably arguable that s 501(3A) needed to be read down so as not to apply to Mr Downing if it was to be constitutionally valid.

65    However it is clear that Re Patterson does not lay down any binding principle in so far as it concerns the question of whether s 501 of the Act is consistent with the naturalisation and aliens power in s 51(xix) of the Constitution. In Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28 at [32] Gleeson CJ, Gummow and Hayne JJ held:

This case [i.e. Shaw] should be taken as determining that the aliens power has reached all those persons who entered this country after the commencement of the Citizenship Act on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised.

66    Their Honours cited with apparent approval dicta in other cases (Long v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1422; and Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te [2002] HCA 48; (2002) 212 CLR 162) to the effect that that there was no single strain of reasoning in the majority judgments in Re Patterson which contains a binding statement of constitutional principle. They confined the authority of that decision to a different ground concerning constructive failure to exercise jurisdiction on which it was also based (see [39]).

67    At [190] Heydon J agreed with those reasons (albeit subject to an assumption which, if untrue, would have made the relevant cut-off date even earlier than 1949). I note that Mr Shaw's position was quite similar to that of Mr Downing's, as he (Mr Shaw) was born in the United Kingdom to British parents in 1972 and came to Australia as a small child in 1974.

68    In Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [191] the Full Court held that Shaw required this court to hold that the relevant applicant there, Mr Stevens, was 'an alien for the purposes of s 51(xix) of the Constitution and that s 501(3) is a valid exercise of the power conferred on the Commonwealth Parliament by s 51(xix) of the Constitution to make laws with respect to aliens'. Once again, Mr Stevens' situation was similar to Mr Downing's, as Mr Stevens was born in the United Kingdom, arrived in Australia as a child in 1971, settled in Australia with his family, lived in Australia all his adult life, but had not acquired Australian citizenship.

69    It is not reasonably arguable that s 501 is not constitutionally valid in so far as it applies to Mr Downing. Ground 6 has no merit.

Other grounds

70    At the end of the particulars to proposed ground 6, and seemingly as part of them, the 'amended originating application' alleges that there were jurisdictional errors the Minister made, seemingly by reference to a number of provisions of the Acts Interpretation Act 1901 (Cth), the Administrative Appeals Tribunal Act 1975 (Cth) and the Migration Act.

71    With one exception, the document does not identify what errors in connection with those provisions the Minister or, more to the point, the Tribunal made. The exception is that it refers to '506 c [sic] issue of not including documents in disclosure, juvenile criminal record, sealed documents, police running sheets'. There is no s 506C (or s 506) in the Migration Act. I have considered the possibility that Mr Downing is referring to s 501C, but that relates to decisions under provisions different to s 501CA, which is the provision under which the delegate made the original decision not to revoke cancellation of the visa here.

72    When I asked Mr Downing what he was referring to, he said it concerned the failure to disclose his driver's licence. I have already dealt with that point.

73    When I asked Mr Downing what errors he was referring to in relation to the other sections he listed, he confirmed that he was merely listing the provisions he thought were relevant to the errors he had identified in proposed grounds 1 to 6.

Conclusion

74    There is insufficient merit in the grounds of appeal Mr Downing wishes to run to satisfy me that it is in the interests of the administration of justice to grant him an extension of time to apply to this court for judicial review of the Tribunal's decision. The application is dismissed, with costs.

Associate:

Dated:    16 October 2019