FEDERAL COURT OF AUSTRALIA

Kheir v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1974

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.    The application for an extension of time be dismissed.

3.    The applicant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    The applicant, Mahmoud Kheir, seeks an extension of time under s 477A(2) of the Migration Act 1958 (Cth) (Act) to apply for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed the decision of a delegate of the first respondent (Minister) not to exercise the discretion in s 501CA(4) of the Act to reinstate Mr Kheir’s Class BC (subclass 100) Spouse visa (Visa). The Visa had been the subject of mandatory cancellation under s 501(3A) of the Act.

background

2    Mr Kheir is a citizen of Lebanon. He arrived in Australia on 30 May 2000 aged 21 years, having married his wife, an Australian citizen, in January 2000.

3    The applicant has an extensive criminal history. He was first convicted in November 2002 of possessing a prohibited drug and was sentenced to a 12-month good behaviour bond. Since then, he has been convicted on numerous occasions of various offences including drug-related offences, larceny/break and enter, possession of firearms and driving-related offences. On 18 April 2018 Mr Kheir was sentenced to a term of 33-months imprisonment for unlawful possession of a firearm and supply of a prohibited drug.

4    On 13 March 2009 the Department of Immigration and Citizenship (as the Minister’s Department was then known) (Department) wrote to Mr Kheir about the Visa (Counselling Letter). In that letter the Department noted that the fact that Mr Kheir had a criminal record had come to its attention. The purpose of the Counselling Letter was to warn Mr Kheir that “any further criminal convictions, or any other conduct on [his] behalf that comes within the scope of subsection 501(6), could result in consideration of the cancellation of [the Visa]”.

5    It appears that on 6 April 2009 Mr Kheir signed an acknowledgment that he had received the Counselling Letter and that he understood that under s 501 of the Act any visa that he holds “may be considered for cancellation if [he is] convicted of further criminal offences or engage[s] in any conduct that comes within the scope of subsection 501(6) of the [Act]”. Despite this being evident on the face of the Counselling Letter, before the Tribunal Mr Kheir denied having received that letter.

6    On 30 October 2017 the Visa was cancelled under s 501(3A) of the Act because a delegate of the Minister was satisfied that Mr Kheir did not pass the character test in s 501 of the Act (Cancellation Decision). This was because Mr Kheir had a substantial criminal record within the meaning of s 501(6)(a) of the Act on the basis of s 501(7)(c) of the Act, in that on 28 September 2017 he was convicted of “use false documents to influence exercise of public duty-T1” and “Goods in personal custody suspected being stolen (not m/v)” and sentenced to an aggregate term of 12-months imprisonment. The decision-maker also noted that he was satisfied that, at the time of the decision, Mr Kheir was 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.

7    On 10 November 2017 Mr Kheir sought revocation of the Cancellation Decision. The application for revocation was received by the Department on 20 November 2017.

8    On 21 November 2018 a delegate of the Minister declined to exercise the power under s 501CA(4) of the Act to revoke the mandatory cancellation decision.

9    Mr Kheir sought review of the delegate’s decision before the Tribunal.

legislative framework

10    It is convenient at this point to set out the relevant legislative framework governing the cancellation of a visa.

11    Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if he or she is satisfied that the person does not pass the character test because of the operation of subs (6)(a) on the basis of subss (7)(a), (b) or (c) of the Act.

12    Section 501(6)(a) concerns the character test. It provides that a person does not pass the character test if the person has a substantial criminal record.

13    Section 501(7) provides that a person has a substantial criminal record if, relevantly for the purposes of this case, the person has been sentenced to a term of imprisonment of 12 months or more.

14    Section 501CA of the Act applies where the Minister makes a decision under 501(3A) to cancel a visa, referred to as the “original decision”. Where that occurs the Minister must, as soon as practicable after making the decision, give the person a written notice setting out the original decision and particulars of the relevant information and invite the person to make representations to the Minister about revocation of the original decision.

15    The Minister may revoke the original decision if the person made representations in accordance with the invitation and the Minister is satisfied that the person passes the character test or there is another reason why the original decision should be revoked: s 501CA(4).

The tribunal decision

16    The Tribunal identified that the sole issue for its determination was whether, having regard to the primary and other considerations in Direction No 65 - Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction 65), the discretion in s 501CA(4) of the Act should be exercised to revoke the original decision. In that regard the Tribunal noted that Pt C of Direction 65 was relevant to the matter.

17    That was so because the Tribunal noted that there was no issue that Mr Kheir did not pass the character test as defined in s 501 given his imprisonment for a term of 12 months or more. The Tribunal set out Mr Kheir’s criminal record and observed that most recently he had been sentenced to a term of imprisonment of 33 months.

18    The Tribunal first set out Mr Kheir’s background including that he had been the subject of an assault in 2004 resulting in injury, especially depression and anxiety, which affects him to date. The Tribunal noted that it seemed that Mr Kheir was targeted at that time because of his business success as a fruit seller. The Tribunal referred to the fact that Mr Kheir became a drug user after the assault in an effort to ease the pain; his criminal activity accelerated; he received the Counselling Letter; and he continued to commit further offences.

19    The Tribunal then referred to the evidence given at the hearing by and on behalf of the applicant by members of his family, his daughter, aged 15 years who gave evidence on her behalf and on behalf of her brother aged 12 years, his mother and his older brother, and to other evidence put forward by Mr Kheir including letters of support from other relatives and members of the community and evidence from a forensic psychiatrist and a counselling psychologist.

20    The Tribunal then turned to address the primary and other considerations under Direction 65.

21    As to the primary considerations:

(1)    in relation to protection of the Australian community from criminal or other serious conduct, the Tribunal:

(a)    noted that whilst there were no crimes of actual violence or of a sexual nature or involving minors, the elderly or disabled, the crimes were “numerous and despite increasingly higher penalties being imposed [Mr Kheir] did not desist in his offending”. The Tribunal also noted that it did not accept Mr Kheir’s explanation that he did not receive the Counselling Letter and that, in any event, Mr Kheir’s brother also warned him about the likely effect on the Visa of continued offending;

(b)    found that there was a “very real risk” of Mr Kheir reoffending if released back into the community, despite his present good intentions and the fact that he had been away from the undesirable influences with which he had previously associated. It said that despite his loving and supportive family there was a “clear risk to the Australian community” that he will reoffend if released, almost certainly by way of crimes against property and of dishonesty and, while confident that he would not engage in physical harm, there was “a real risk of substantial crimes of dishonesty and property crimes being committed”; and

(c)    concluded, taking all of the evidence into account, that there was “at least a moderate risk of [Mr Kheir] reoffending” and “this would pose an unacceptable risk to the Australian community”. Thus the Tribunal found that this consideration weighed strongly against Mr Kheir;

(2)    in relation to the best interests of the minor children it found, based on the evidence of Mr Kheir’s daughter and through her, his son, that this criteria weighed heavily in favour of revocation of the cancellation decision; and

(3)    in relation to the expectations of the Australian community, the Tribunal noted that Australians are “a fair people who are prepared to give a person a go and who are willing to tolerate and forgive a person who makes a mistake or commits a crime/crimes but clearly has shown remorse and rehabilitation”. However, the Tribunal also noted that the Australian community takes “a dim view of people who continue to commit crimes for a lengthy period of time, even if the crimes are not of a violent or sexual nature”. The Tribunal did not think that the Australian people would have much confidence that Mr Kheir will not commit further crimes if released. The Tribunal concluded that this consideration weighed strongly against Mr Kheir and that “the Australian people would say ‘enough is enough’ and would expect that the cancellation of the [Visa] should not be revoked”.

22    The Tribunal then turned to the other considerations. It relevantly considered international non-refoulement, the strength, nature and duration of Mr Kheir’s ties with Australia, impact on victims and the extent of impediments if removed. It noted that impact on Australian business was not relevant in Mr Kheir’s case.

23    As to non-refoulement issues, the Tribunal noted that Mr Kheir had not led any evidence on this issue, save for the “possibility that his name may still be on an airport list which he said a friend saw at least five years ago” but that there was no statement in support of this assertion beyond the vague oral evidence that Mr Kheir was told about this. The Tribunal noted that since this time Mr Kheir’s nephew had come to Australia and the fears that Mr Kheir had about a pistol seemed to have been shown to be ill-founded.

24    In relation to the strength, nature and duration of Mr Kheir’s ties to Australia, the Tribunal noted the applicant had spent nearly half of his life in Australia and had not returned to Lebanon, had raised two children here, all his close relatives were here and, despite his reoffending, had a good work history in Australia. The Tribunal concluded that Mr Kheir’s ties to Australia are strong and that this factor weighs in his favour.

25    The Tribunal noted that there were no apparent victims of his offending but that the victims of his break and enter and steal offences would have felt their homes violated.

26    Finally, the Tribunal found that there “would be significant impediments” for Mr Kheir if he were to be removed to Lebanon. This was because, while Mr Kheir would not have language difficulties and has some family in Lebanon, he does not have a place to stay and finding work would initially be a problem. The Tribunal noted however that Mr Kheir was a hard worker and had skills that would be useful anywhere in the world. The Tribunal also referred to Mr Kheir’s health concerns and noted that, whilst the latest Department of Foreign Affairs and Trade country information report on Lebanon showed a reasonable health system, being one of the best in the Middle East, it is nowhere near as good as the system in Australia.

27    The Tribunal concluded that, whilst the other considerations weighed in favour of revocation, it was the primary considerations that carried the most weight. Of these, the Tribunal found that the protection of and expectations of the Australian community weighed heavily in favour of non-revocation and, while the best interests of the children weighed heavily in favour of revocation of the Cancellation Decision, it did not outweigh the other countervailing considerations. The Tribunal therefore affirmed the delegate’s decision.

the application for an extension of time

28    Mr Kheir lodged his application for an extension of time with the Court on 27 May 2019. That was 68 days outside the 35-day period prescribed by s 477A(1) of the Act within which an application for a remedy under s 476A(1)(b) can be made.

29    In his application Mr Kheir has written that he has “no English and help in detention centre”. A draft originating application for review of a migration decision is annexed to Mr Kheir’s application. It sets out the following grounds (as written):

1.    Best interest of children.

2.    Death if returned back.

30    Mr Kheir also relies on an affidavit sworn by him on 21 March 2019. In that affidavit Mr Kheir deposes to the following matters (as written):

(a)    I would like to tell my full story to the Court.

(b)    I would be killed by my in-laws if I was to return to my country.

(c)    The application was not filed on time because I sent in the worng forms and there is no-body to held with the filing of the froms…

…

3.    I have been told that I will be killed, if I go back to my country.

4.    I can show letters from different police officers that my country to prove this.

5.    Please help me.

31    Annexed to Mr Kheir’s affidavit is a document in Arabic and a translation of that document (Translation). According to the Translation, the document is from a town councillor of Tabbane and records that when Mr Kheir was in Lebanon he asked for a certain girl’s hand in marriage but her family refused, the girl in question ran away from home and did not return, the girl’s family threatened to kill Mr Kheir accusing him of kidnapping her and, while Mr Kheir has travelled to Australia, the threat to kill him remains in effect in the event that he returns to Lebanon.

legal principles

32    Section 477A(2) of the Act provides that the Court may by order extend the 35-day period prescribed in s 477A(1) as the Court considers appropriate if, an application having been made, the Court is satisfied that “it is necessary in the interests of the administration of justice” to do so.

33    In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 Wilcox J identified the following factors as relevant to take into account in exercising the discretion to extend time:

(1)    while special circumstances need not be shown, the court will not grant an application to extend time unless positively satisfied that it is proper to do so. An application for an extension of time should show an acceptable explanation for the delay;

(2)    whether there is any prejudice to the respondent, noting that the mere absence of prejudice is not enough to justify the grant of an extension; and

(3)    the merits of the substantive application.

34    In Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [26]-[27] a Full Court of this Court (Siopis, White and Perry JJ) relevantly said:

26    … In considering whether to exercise the discretion in an applicant’s favour, the Court considers among other things the applicant’s reasons for delay and whether the application, if an extension of time were granted, would have any prospects of success: Metera v Administrative Appeals Tribunal [2008] FCA 1627 at [22]–[23] (Cowdroy J) (quoting Fisher v Minister for Immigration & Citizenship (2007) 162 FCR 299; [2007] FCA 591 at [35] (Stone J)); MZYYO v Minister for Immigration & Citizenship [2013] FCA 49; (2013) 214 FCR 68 at [30] (Murphy J) (applying Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349 (Wilcox J)).

27    In his affidavit in support of the extension of time, the applicant referred to a number of difficulties with filing the correct documentation from immigration detention. No issue is taken with his explanation for the delay. However, the Minister opposes the grant of an extension of time on the basis that the application lacks any reasonable prospects of success. In considering this question, the proposed grounds of judicial 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 (see by analogy MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38] (the Court)).

35    Mr Kheir did not file any written submissions. At the hearing he made some brief oral submissions. He informed the Court that he would face issues if he was to return to Lebanon because of the matters set out in the Translation. He said that since he has been in Australia there were two incidents in which the family referred to in the Translation attempted to murder him, one while he was in jail and the second while he was in the community.

36    Mr Kheir also submitted that he has no family in Lebanon and that his family is here.

37    The Minister opposes the application for an extension of time and says that if it was granted the application for judicial review would in any event be dismissed.

consideration

38    As the Minister submitted the delay of 68 days is, on the one hand, not trivial, but, on the other, not extensive. As set out above, Mr Kheir explained that the delay was caused by the fact that he has no English and had no access to assistance whilst in detention. Mr Kheir also said that he sent in the wrong forms and that no one could assist him with the filing of those forms.

39    The Minister submitted that, beyond the assertion in Mr Kheir’s affidavit that he had sent in the wrong forms, there was no evidence to support that fact and that taking that matter, together with what appeared to be a command of English, Mr Kheir’s explanation for the delay in filing was inadequate.

40    Mr Kheir appeared before me without the assistance of an interpreter and confirmed that he did not require an interpreter when asked, although his written application demonstrated that he may have difficulty with written English. Putting that to one side, Mr Kheir is not legally represented and may have some difficulty in comprehending the processes of the Court and the steps to be taken to commence a proceeding in the Court. Further I am prepared to give Mr Kheir the benefit of the doubt and to accept that he had difficulty with filing in time given that he was in detention, without legal assistance and, although he speaks English, may not have fully understood what was required of him to commence his application. In those circumstances I accept that Mr Kheir has adequately explained the reason for his delay in filing.

41    The Minister does not assert that he has suffered any relevant prejudice by reason of the delay. Thus the issue of whether an extension of time should be granted turns on the merits of the proposed grounds included in the draft originating application, which I consider below.

Ground 1

42    The first proposed ground is that, in effect, the Tribunal failed to consider the best interests of the minor children as it was required to do under Direction 65.

43    The Tribunal was aware of the requirements of Direction 65 and turned its mind to the primary considerations including the best interests of the minor children. The Tribunal set out the evidence given by Mr Kheir’s daughter and, through her, his son and commented on that evidence favourably. The Tribunal found that this consideration weighed heavily in favour of revocation of the Cancellation Decision and observed that it would not be easy for family members to travel to Lebanon and that contact by phone and Facebook, while useful, was no substitute for personal contact.

44    It cannot be said that the Tribunal did not consider the best interests of Mr Kheir’s minor children. On the contrary it gave express consideration to that primary consideration and reached a conclusion about it in favour of Mr Kheir.

45    Ground 1 lacks merit.

Ground 2

46    Proposed ground 2 states “death if returned back”. I infer that this ground relates to the Translation.

47    The Translation and the underlying document were not in evidence before the Tribunal and, based on the Tribunal’s reasons, no claim based on the facts set out in the Translation was made before the Tribunal.

48    At [47]-[49] of the Tribunal’s decision record the Tribunal refers to the circumstances in which Mr Kheir left Lebanon. That is, after completing his national service Mr Kheir became an undercover plain clothes police officer but he departed Lebanon without formally quitting the police force and left his police issue 9mm automatic pistol with his nephew. The Tribunal described this as a serious offence, particularly if the pistol was subsequently used to kill someone. However, it appears that it was not used in that way, as confirmed by Mr Kheir’s nephew when he came to Australia two years ago. The Tribunal also noted Mr Kheir’s evidence that notwithstanding that, a friend had informed Mr Kheir that he saw his name “on an airport list about five or more years ago” but, in light of Mr Kheir’s nephew’s evidence, described that claim as ill-founded in the context of considering international non-refoulement considerations.

49    The Tribunal also referred to the assault of Mr Kheir but found that he was targeted because of his business success as a fruit seller at the Sydney Markets.

50    There is no evidence referred to by the Tribunal of attempts to kill Mr Kheir, either whilst incarcerated or while in the community as a result of the events referred to in the Translation. The Tribunal is not under an obligation to consider a claim which was not made and was not obvious from the evidence before it: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]. Ground 2 has no merit.

Conclusion

51    Despite Mr Kheir having adequately explained the reason for the delay in filing his application, given the lack of merit in Mr Kheir’s proposed grounds of review, I am not satisfied that it is in the interests of the administration of justice to grant Mr Kheir an extension of time within which to file his application for judicial review of the Tribunal’s decision.

52    Mr Kheir’s application should therefore be dismissed and, as he has been unsuccessful, he should pay the Minister’s costs as agreed or taxed. I will make orders accordingly.

Associate:

Dated:    25 November 2019