FEDERAL COURT OF AUSTRALIA

Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2187

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application, filed on 9 December 2019, be dismissed with costs.

2.    Order 4 of the orders made by the Court on 10 December 2019 be vacated.

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

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

REASONS FOR JUDGMENT

MCKERRACHER J:

1    By application filed on 9 December 2019, the applicant sought an order restraining the Minister from deporting him from Australia. On 10 December 2019, I listed the interlocutory application for hearing. Against opposition, I granted an interim injunction restraining the Minister from deporting the applicant the next day as planned, but adjourned the matter for further hearing of the injunctive relief to allow both parties to file further materials. The matter was relisted on 18 December 2019, where after hearing the parties, I dismissed the application for an interlocutory injunction and vacated my previous order, with reasons to follow. These are my brief reasons.

Materials in support

2    The application was supported by two short outlines of submissions and three affidavits sworn by the applicant on 3, 9 and 13 December 2019. It was also accompanied with draft grounds of appeal said to represent grounds upon which, in broad terms, the applicant would rely if the injunction were granted and the extension of time for leave to appeal were granted.

3    By his 3 December 2019 affidavit, the applicant explained that his delay in applying for review of a decision of the Administration Appeals Tribunal, delivered on 3 May 2017, was due to advice from a legal representative at the time that there were no grounds of appeal and that he should apply for a protection visa. He did this in December 2017.

4    By his 9 December 2019 affidavit, the applicant confirmed he was applying for an injunction to restrain his deportation on the basis that he has an on-going case in this Court for an extension of time for review of the Tribunal’s decision. He also deposed to various health grounds which do not require close analysis as they did not form part of the argument extremely helpfully prepared by Mr Robertson of counsel (pro bono). (The health issues were addressed by other affidavit evidence for the Minister.)

5    By his 13 December 2019 affidavit, the applicant explained his previous opiate addiction which was a significant reason for his repeat offending. He explained:

As part of my sentence, I was prohibited from using the internet until June 2019. That meant that I could not use emails, search for lawyers online or do any of my own research into legal matters about visas or appeals from visa decision.

6    The applicant explained that his protection visa review application was refused by the Tribunal in late 2018 at which point his lawyers withdrew. He applied to the Federal Circuit Court of Australia with the assistance of other detainees, but his application was dismissed on account of his non-appearance on 28 June 2019.

7    His evidence interestingly does not raise any material concerning his daughter who is the main focus of attention in the proposed draft grounds of appeal.

8    The Minister’s affidavits were largely formal, attaching a copy of the Tribunal’s decision and reasons, a copy of correspondence from Australian Border Force received on 28 June 2019, a copy of the orders made by Judge Street on 28 June 2019, a copy of the applicant’s travel itinerary, a copy of the notice of intention to remove from Australia signed by the applicant on 3 December 2019, and an email from an Australian Border Force officer regarding treatment for the applicant in detention.

The Tribunal decision

9    The Tribunal in its decision, given some two and a half years ago, set out the relevant legal requirements under s 501 of the Migration Act 1958 (Cth). It noted that the applicant had acquired multiple convictions between 2011 and 2015, all relating to obtaining property by deception perpetrated by stealing the identity of innocent persons through the internet and using that personal information to acquire property and financial advantage. The Tribunal set out Ministerial Direction No 65 and assessed the primary considerations, including the best interests of minor children in Australia. Addressing the protection of the Australian community, it was noted that on 10 April 2014 the applicant was sentenced to an aggregate of 18 months imprisonment. The applicant was convicted on 48 offences concerning dishonesty, as well as federal offences concerning communications via the internet. The Tribunal recorded that the applicant’s offending increased in its seriousness and also noted problems with drug addiction and gambling.

10    In relation to the best interest of minor children, the Tribunal said this:

Best interests of minor children

26.    Mr Bernard has a daughter who is 10 or 11 years of age. As is stated in paragraph 13.2 of the Ministerial Direction, I must make a determination about whether revocation of the visa cancellation decision is in the best interests of Mr Bernard’s daughter. Paragraph 13.2 (4) sets out the factors I must consider if relevant. They are:

(a)    The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether existing Court order restricts contact);

(b)    The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

(c)    The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

(d)    The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

(e)    Whether there are other persons who already fulfil a parental role in relation to the child;

(f)    Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

(g)    Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

(h)    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

27.    In a handwritten statement provided to the Department in support of his application for revocation of his visa cancellation, Mr Bernard said that his wife had been diagnosed with a medical issue preventing her from looking after his daughter. Therefore, according to Mr Bernard, he will be his daughter’s primary carer and will have to be present for all of her needs. However, I had no evidence that Mr Bernard’s wife was suffering from a medical condition. That is despite having in evidence a statement made by Mr Bernard’s wife on 28 September 2015. Mr Bernard’s wife said that Mr Bernard’s daughter found having her father away for some months a difficult experience. Mr Bernard’s wife said it was very challenging for her to explain to Mr Bernard’s daughter the reality of the situation. Mr Bernard’s daughter apparently asked her mother not to celebrate her birthday and Christmas in 2014 but rather to wait until her father returned. Mr Bernard’s wife went on to say:

Her dad remains her ‘hero’ no matter what and I must admit that despite the rest, Patrick has always been a loving dad. Having Patrick taken away from her indefinitely will seriously affect our lives, our daughter’s, Patrick’s and mine.

28.    Mr Bernard’s daughter attended the hearing and I allowed her to give evidence. She said that she was required to stay with her aunty and uncle at their house 3 to 4 times per week. She was happy when her father came back to stay.

29.    Mr Elvis Bernard, Mr Bernard’s brother, provided the statement dated 7 October 2015, which was taken into evidence. He said that Mr Bernard was the main carer for his daughter because her mother, a nurse, worked long and odd hours. The daughter had to change school and to sleep over at his house 3 to 5 days a week because her mother was on night shift. Mr Elvis Bernard also attended the hearing and gave oral evidence. He said his wife became responsible for taking the daughter to school and he described the daughter as going into silent mode. He described Mr Bernard as having a close relationship with his daughter. When asked in cross-examination whether the daughter had any time away from school since her father had been in prison, Mr Elvis Bernard said she had not but that she was a burden on their family.

30.    I had some concerns about the fact that Mr Bernard’s wife was not present at the hearing. There was some evidence that the relationship may have been strained. In a consultation with the counsellor from International Health and Medical Services (IHMS) on 3 December 2015 Mr Bernard is reported as having said:

Partner had become abusive (mostly verbal abuse and derogative) and to the point where he seek drugs to forget his humiliation.

31.    In a later consultation on 2 March 2016 it was reported:

Client has initially requested assistance on his low mood and difficult relationship with his wife.…

Resume my life with daughter and buy small apartment.

32.    Although Mr Bernard was adamant that he had not separated from his wife, the possibility of that occurring, even if Mr Bernard were allowed to remain in Australia is, on the evidence before me, significantly high. In an IHMS report dated 21 July 2016 Mr Bernard expressed he was suffering from anxiety and he apparently referred to recent stressors including separating from partner and also Court matters. He also said during the hearing that since being in immigration detention, he had suffered from a few panic attacks and general anxiety issues.

33.    He plainly has not been a role model for his daughter to date. Mr Bernard gave evidence that he and his daughter would go to the shops and play around together. He stated that he currently contacts his daughter 2 to 3 times per day. Although Mr Bernard told the Tribunal during the hearing that he had in the past picked his daughter up from school, I had no evidence before me that Mr Bernard contributed in any meaningful way to his daughter’s schooling or social development. That leaves open the question of whether Mr Bernard is likely to play a positive parental role in the future.

11    In considering the strength, nature and duration of the applicant’s ties to Australia, the Tribunal recorded:

40.    In addition to his wife and daughter, Mr Bernard has an older brother resident in Australia. Mr Bernard has also listed a number of relatives who reside in Australia, there being some 13 uncle and aunts, 4 nieces and nephews and some 19 cousins. Although Mr Bernard’s brother, Mr Elvis Bernard, attended the hearing and gave oral evidence in support of his brother’s application, the strength of ties between the families in Australia was not entirely clear. The evidence was that Mr Elvis Bernard’s family has taken on significant responsibility for Mr Bernard’s daughter. Mr Elvis Bernard accepted that having to look after his brother’s daughter had become a burden on his family. I did not have evidence from any other family members in Australia and therefore am unable to comment on the strength of ties Mr Bernard has with those relatives.

…

42.    Mr Bernard claimed that he was primarily his daughter’s carer, and that his responsibility was likely to increase because his wife was suffering from some medical issue which he did not name. In his statement of facts lodged with the Tribunal on 12 August 2016, Mr Bernard also claimed that he was the carer of his daughter. However, given that Mr Bernard was committed to prison on 10 April 2014, and his sentence included a non-parole period fixed at 18 months, his release on parole occurred on 19 October 2015. It is likely that his release was followed immediately by his incarceration at Maribyrnong immigration detention centre which occurred on 19 October 2015. Therefore, as at the date of this decision, Mr Bernard has not been a carer of his daughter for the past three years. It follows that, however his relationship with his daughter is described, the evidence of him being the principal carer for his daughter is simply non-existent. Certainly that is the case over the last three years. Furthermore, without evidence from Mr Bernard’s wife regarding their domestic and family relationship, it is not possible to accept Mr Bernard’s evidence about this. Nevertheless, I accept his evidence that he has a good relationship with his daughter. That was confirmed by his daughter at the hearing.

43.    Accordingly, although I find that Mr Bernard’s relationship with his daughter is good and ideally, that relationship has the potential to be significant in his daughter’s social development, it is nevertheless subject to considerable doubt. During the hearing Mr Bernard gave oral evidence that his daughter had experienced growing up in a rather unstable environment thus far. He submitted that if he were to be allowed to remain in Australia, he would provide a source of stability for his daughter’s life and could provide good care for her. However, this is dependent upon Mr Bernard overcoming his addiction to drugs and gambling and presenting as a stable role model for his daughter. If Mr Bernard were unable to overcome the serious social problems which led to his convictions, those problems may well have a detrimental effect on his daughter’s development. As the evidence before me presently stands, it does not establish a compelling or even strong reason why Mr Bernard’s visa cancellation should be revoked.

44.    Mr Bernard’s wife appears, at least at this stage, to be the strongest tie he has with Australia. However, I must express some doubt regarding the strength of that relationship as there is evidence that it is under considerable strain. The relationship with his brother, Mr Elvis Bernard, appears to have remained reasonably strong despite his criminal offending. While Mr Elvis Bernard expressed that his involvement with Mr Bernard’s daughter exerted a burden on his family, and that the burden would be removed were Mr Bernard allowed to remain in Australia, that is not by itself a strong reason for allowing Mr Bernard to remain in Australia. Other than the care of Mr Bernard’s daughter and his health problems, Mr Elvis Bernard did not give any evidence which would support a reason for Mr Bernard remaining in Australia.

12    Finally, the Tribunal stated:

58.    The best interest of Mr Bernard’s daughter is also a primary consideration. While it appears that Mr Bernard has maintained a good relationship with his daughter, I did not have evidence of Mr Bernard’s engagement with his daughter which might advance her education or social development. Despite Mr Bernard claiming he was her primary carer, that has not been the case for the past three years. Whilst it is common, when considering the best interests of children under the age of 18 years, to conclude that such children’s interests are best served by having two parents, that is not inevitably the case. That is particularly so where one parent has been found guilty of serious criminal misconduct and there remains a real risk that the offending will continue. To compound the matter in this case, there appears to be a significant rift between the two parents. Therefore, it is with considerable reluctance that I find that, as conceded by the Respondent, while consideration of the best interests of Mr Bernard’s daughter probably favours revocation of the Minister’s decision to cancel his visa, it does not carry significant weight in this case. Should Mr Bernard reoffend, his relationship with his daughter is likely to become strained, particularly as she gets older and more aware of his misconduct.

The proposed draft grounds

13    It is unnecessary to set out the grounds in precise detail given that, at this stage, I am required to form an impression only as to their prospects of success. The first ground is the failure by the Tribunal to take into account the likely effect of any separation on his daughter, with regard to her inability to maintain contact in other ways. The second is the failure to take into account the views of his daughter. The third is concerned with the Tribunal’s consideration of the extent of impediments to removal, namely the failure to consider what rights, if any, his daughter had to travel to and live in Mauritius with the applicant. The fourth is illogicality in the Tribunal’s conclusion that there was no evidence the applicant contributed in any meaningful way to his daughter’s schooling and social development in the face of contrary evidence. The fifth is the illogicality of the finding that the wife was the strongest tie that the applicant had with Australia given his connection with his daughter. The sixth is the failure to take into account that the mother was not involved with the care of his daughter who was predominantly cared for by the paternal family. Finally, challenge is made to the conclusion by the Tribunal that should the applicant reoffend his relationship with his daughter was likely to become more strained. This conclusion is contended to be not based on any evidence.

14    Both in writing and orally, counsel addressed all these grounds most capably and in some detail.

Key issues

15    It is important to note, as the applicant stressed, that this is not the hearing of the extension of time itself but rather the application for an injunction pending the hearing of the application for an extension of time. That observation, as will be seen, is relevant to the topic of delay.

16    It is common ground that the relevant questions are whether or not the applicant has shown:

(a)    a serious question is to be tried as to the entitlement to relief;

(b)    that he is likely to suffer injury for which damages would not be an adequate remedy; and

(c)    the balance of convenience favours the granting of an injunction.

17    It is accepted that questions of damages or prejudice do not arise. Great emphasis was placed by the Minister on the delay.

18    It is argued for the applicant that strict compliance with a time limit should not be required where to do so would cause injustice. However, the applicant accepts that it is important to evaluate whether there is an acceptable explanation for the delay and the longer the delay the more persuasive the explanation needs to be.

19    The applicant acknowledges that an extension of time of around two and a half years is very unusual. However, he says that it is not unheard of and refers to the decision of Applicant in WAD 230/2014 v Minister for Immigration & Border Protection [2014] FCA 1351 per Gilmour J where a delay of a similar length was considered. The Minister contends WAD 230/2014 should not be followed having regard to authorities referred to below. I note in that decision, unlike the present, the Minister did not contend there was no merit in the appeal grounds (see [23]). Additionally, not all the authorities raised below appeared to have been referred to the Court in that decision.

20    As to the explanation for the delay, the applicant relies upon:

(a)    the legal advice he was given both in respect of the prospects of success and the application for a protection visa;

(b)    that he promptly, but unsuccessfully, sought a second opinion following the dismissal of his application;

(c)    that he was effectively unrepresented for the most part, save in relation to the protection visa application;

(d)    the fact that he was suffering from poor health at all material times;

(e)    the fact that he was in immigration detention at all material times;

(f)    the fact that he was limited in what research he could personally undertake by reason of being prohibited from the use of the internet; and

(g)    the fact that he was unaware that any extension of time could be sought in respect of the original Tribunal decision until told by a fellow detainee on the day the application was lodged.

21    It is the culmination of those factors, with particular emphasis on the lack of access to the internet, upon which the applicant relies.

22    The applicant also contends that he has a prima facie case relying upon the draft grounds of review and taking into account the fact that they have been formulated extremely quickly by pro bono counsel.

Consideration

23    The main focus of these reasons is on delay.

Delay

24    Delay is relevant to two issues. First, clearly there has been no delay in pursuing this application for an injunction. Notice of removal was given very recently. But delay is also very relevant to an extension of time application filed two and a half years out of time. The importance of the focus on the delay and the cases governing such delay in the paragraphs following is that on an application for an interlocutory injunction a court must consider not only the balance of convenience, the interests of justice and the potentially affected interests of third parties, but also the apparent strength of the case which would be put at a final hearing. The relevant final hearing in this instance is not a judicial review application but the application for an extension of time within which to seek such review. Delay (where so great) is a key issue in such an application. The authorities show that such a delay alone would make the prospects of success on an extension of time application very slim.

25    On an extension of time application regard will usually be had to the length of the delay, the reasons for the delay, the merits of the proposed appeal, the interest of justice and prejudice, if any. The applicant was required to file his application for judicial review within 35 days of the date of the Tribunal’s decision pursuant to s 477A(1) of the Migration Act.

26    The history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties if an extension of time is granted or refused is usually relevant as noted in Gallo v Dawson (1999) 64 ALJR 458 (at 459). Nonetheless, in Tran v Minister for Immigration and Border Protection [2014] FCA 533 (at [38]), Wigney J noted that the absence of any satisfactory, let alone persuasive, explanation for significant delay would itself be a sufficient basis to refuse the application for an extension of time. In that case the delay was only 18 months.

27    Importantly, in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 (at 474), McHugh J noted that a case ‘would need to be exceptional’ before the time for commencing proceedings was enlarged by even many months. His Honour also emphasised in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (at 553-554) that an applicant for an extension of time has the positive burden of demonstrating that the justice of the case requires that extension. It would require an exceptional case before an extension of time would be granted in a circumstances where a delay of 2 and a half years has occurred as against a limitation period selected by Parliament of 35 days.

28    In my view, the length of the delay here is of such an extreme duration that the merits of the application for an extension of time would have to be particularly obvious to overcome the delay. Were a mere ‘arguable case’ sufficient to outweigh a significant and extensive delay, then limitation periods would be deprived of any meaningful effect. It was noted by McHugh J in Brisbane South where the period selected by Parliament as the appropriate limitation period is exceeded, that limitation period ‘may often result in a good cause of action being defeated’ (at 553).

29    In considering these principles, it is clear that the fact that the applicant has been lawfully detained is not sufficient reason for a delay of such magnitude. It may explain a short delay in many cases but, in any event, detention did not prevent him from lodging an application for a protection visa and then pursuing both merits review and judicial review of that application. Detention alone clearly did not inhibit his ability to file judicial proceedings.

30    Secondly, as has been observed in many cases, and as Mr Robertson accepts, lack of legal assistance without more is not a sufficient excuse for delay. In any event, in this case the applicant had legal assistance and followed advice. He pursued an alternative course.

31    Thirdly, pursuing alternative pathways does not provide an acceptable explanation for delay in making an application for judicial review: see Tran (at [34] and [36]) and Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 per Jessup J (at [29] with whom Gyles and Besanko JJ agreed). As noted in Vu (at [29]), exercising appeal or review rights should not be used as a ‘Plan B’.

32    Fourthly, as to the applicant’s other difficulties, it is also to be noted that the applicant’s opiate addiction and prohibition on use of the internet did not preclude his filing proceedings in respect of his protection visa application and his merits review and judicial review applications.

33    Taking all the matters upon which the applicant relies cumulatively, it cannot be concluded that the matters would be likely to justify a delay of the very significant magnitude which has occurred.

Merits of the proposed appeal if an extension were granted

34    Regarding the ultimate merits, which would also be relevant on an extension of time application, the applicant mainly relies on an asserted failure to comply with Ministerial Direction No 65. A failure to comply with a Ministerial Direction may amount to jurisdictional error if such failure is material. In the course of written submissions and in argument before me, the applicant addressed in some detail the grounds and arguments supporting the grounds which would be advanced were the extension of time granted.

35    Viewing the grounds at a reasonably impressionistic level (consistent with MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 (at [62])), in my view the applicant would not have a strong case. It is clear that all of the grounds of review, to varying degrees, focus on the best interests of the applicant’s daughter. As indicated, however, from the passages set out above, it might well be concluded that the Tribunal considered the daughter’s interests at some length. Indeed, her evidence was taken at the hearing. Very shortly put, the Tribunal:

(a)    was clearly aware of the factors required to be taken into account as set out in Ministerial Direction No 65, for it set these factors out;

(b)    did have regard to the views of the applicant’s daughter from noting that the applicant’s ex-wife had provided a statement which said that his daughter did not want to celebrate her birthday or Christmas in 2014 but ‘rather wait until her father returned’ and that ‘[h]er dad remains her “hero” no matter what’;

(c)    heard his daughter give evidence at the hearing that she was required to stay with her aunt and uncle at their house three to four times per week and she was ‘happy when her father came back to stay’; and

(d)    considered his daughter had confirmed that she had a good relationship with the applicant.

36    It is clear that the Tribunal evaluated (in a manner to which the applicant takes exception) whether he had played or was likely to play a positive parental role. The applicant takes exception with the reasoning, the process and the conclusion in this regard but, properly seen, these are invitations to engage in merits review. Certainly there is no question of illogicality.

37    The Tribunal rejected, on a basis to which the applicant also takes exception, his claim that he had been his daughter’s primary carer, noting that he had not been the carer of his daughter for the past three years and that the evidence of him being the principal carer was ‘simply non-existent’. Perhaps it might be said that, but for the assertion by the applicant, there was no evidence. But it is clear the Tribunal did not accept that evidence. It was not bound to do so.

38    Finally, the Tribunal concluded that it would be in the best interests of the applicant’s daughter for the cancellation decision to be revoked but that in this case it did not carry sufficient weight. In challenging the process of arriving at that conclusion, issue was taken with the manner in which a number of findings were reached; for example the finding that there was no evidence of the applicant’s engagement with his daughter which might advance her education or social development, that he had not been a primary carer for the past three years and that while it was common to conclude that the best interests of children under 18 years of age is best served by having two parents, that was not inevitably the case. Also challenged was the Tribunal’s concern that if the applicant reoffended (of which there was found to be a real risk), the relationship with the daughter was likely to become more strained. The applicant argued that the latter finding was not based on evidence. This may well be so, but the Tribunal is entitled to form a view as to what is likely to occur having regard to its findings as to historical factors. Indeed it is obliged to reach a view in relation to such matters. That is its very function. The expression of this view could hardly be jurisdictional error. As to the other findings, there is nothing in the analysis which reaches the high standard of legal unreasonableness or illogicality. The findings were open on the evidence.

39    Although the grounds have been well drawn and well argued, I am not satisfied for reasons just set out that they constitute a sufficiently persuasive case on the merits to warrant the granting of relief in a circumstance where the Court is being requested to prevent the Minister from carrying out a mandatory statutory requirement on the basis of an application which requires ‘an extraordinary’ indulgence from the Court. The grounds are not persuasive. To further restrain the deportation on the strength of this evidence would be inconsistent with the authorities on which I have relied.

Conclusion

40    While the Court is most grateful for the extremely helpful pro bono assistance of Mr Robertson, in this instance the application must be dismissed with costs.

Associate:

Dated:    23 December 2019