FEDERAL COURT OF AUSTRALIA

Raumakita v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 224

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be refused.

2.    The applicant pay the respondent’s costs to be agreed or taxed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant is a citizen of Fiji born in January 1977, and first arrived in Australia in January 1992, and most recently entered Australia in December 1993. The applicant held a Class WA Subclass 050 Bridging visa (Bridging Visa), which on 20 July 2018, was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act 1958 (Cth)(Migration Act) because the applicant did not pass the character test based on criminal convictions, and also because at the time of the decision, he was serving a sentence of imprisonment on a full-time basis. The applicant’s request that the Minister revoke the cancellation of his Bridging Visa was rejected by the Minister on 19 September 2019.

2    This is an application, pursuant to s 477A(1) of the Migration Act, for an extension of time in which to seek judicial review of that decision of the Minister.

3    The applicant was unrepresented at the hearing and made some brief submissions. He did not file any written submission in support of the application. I appreciate the difficulties faced by an unrepresented litigant in preparing and presenting their case, and I take that into account in considering this application.

4    The respondent contended that the application for an extension of time should be refused, primarily because the proposed judicial review application has no real prospect of success; but if an extension of time is granted, the application for judicial review should be dismissed.

5    For the reasons below, the application for an extension of time is refused.

Background

6    The applicant has committed numerous offences between 1995 and 2010, while as a minor and as an adult. Relevantly, on 23 April 2010, the applicant was convicted of two counts of robbery armed with an offensive weapon, being sentenced to a total effective sentence of imprisonment comprised of a non-parole period of eight years (expiring 7 February 2017) and a balance of four years (expiring 7 February 2021). An appeal against that conviction was dismissed on 8 June 2011: see Raumakita v R [2011] NSWCCA 126.

7    The delegate concluded that, based on those two convictions and that the applicant was serving a term of imprisonment, he did not pass the character test, and his Bridging Visa was cancelled on that basis. The applicant was invited by the delegate to make representations to the Minister about revoking the decision to cancel his Bridging Visa, which he did by way of a request for revocation, made on 27 July 2018.

The Minister’s decision

8    The Minister’s decision was accurately summarised by the respondent in its written submission.

9    The Minister was not satisfied, on the basis of the National Criminal History Check before him, that the applicant passed the character test (as defined in s 501 of the Migration Act) and accordingly, the Minister found that s 501CA(4)(b)(i) was not met. In accordance with s 501CA(4)(b)(ii), the Minister also considered whether there was another reason why the cancellation decision should be revoked. The Minister stated that in doing so he had considered the applicant’s representations and the documents provided by him in support of his claims.

10    The Minister considered the strength, nature and duration of the applicant’s ties to Australia and observed that the applicant had numerous family members in Australia. He accepted that the applicant’s parents and extended family would experience emotional hardship and distress if his visa cancellation were not revoked. He also accepted that the applicant was in a relationship, and that his partner would also suffer emotional hardship if he were removed from Australia.

11    The Minister referred to, at that time, the applicant having spent 19 of his 25 years in Australia in custody and found that his offending conduct diminished any positive contribution he may have made through his family, friends, schooling and employment.

12    The Minister referred to the impediments the applicant will face if he is removed to Fiji and found that he was likely to experience significant emotional hardship in Fiji on account of being separated from his partner, parents, extended family and friends. He found that the applicant was also likely to experience significant practical hardship when returning to Fiji as he accepted that there was a real possibility that the applicant would be homeless at least in the short term on return, and that this would be a significant detriment to his health and wellbeing.

13    The Minister considered the protection of the Australian community. The Minister considered the nature and seriousness of the applicant’s criminal offending and noted that the violent offences were “very serious”. The Minister discussed the circumstances of the applicant’s two convictions for robbery armed with an offensive weapon (in 2010), and also discussed the other offences for which the applicant had been convicted. The Minister observed that the use of violence was present in nearly all of the offending and that there was an escalation in the level of threat to victims, increasing the seriousness of his offending. He concluded that the applicant’s history of offending was “very serious”.

14    The Minister considered the risk the applicant posed to the Australian community through re-offending. He took into account that the offending appeared to have been motivated by financial needs and negative peer associates, and that his drug and alcohol use was likely to also have contributed. The Minister also considered that the applicant’s mental health may have been a factor leading to his drug intake. He observed that the applicant’s attendance at rehabilitation programs may assist in lowering his risk of re-offending, but considered that such efforts in the past had had little impact on his offending. The Minister was also cautious to accept that the applicant had sufficient insight into his offending. He considered that the past pattern of re-offending occurred despite terms of imprisonment, parole, rehabilitation efforts, vocational learning, family support and his faith, which gave rise to a concern that the applicant would re-offend. The Minister was not satisfied that the applicant would be able to manage the factors underlying his offending, such as alcohol, drug use, financial difficulties, or that he had an adequate ability to manage his anger and avoid negative peer influences. He found that there was an ongoing risk that the applicant would re-offend, and that any further re-offending in a similar manner would result in physical, psychological and financial harm to members of the Australian community.

15    The Minister concluded that the applicant posed an unacceptable risk of harm to the Australian community and that the protection of the community outweighed the other considerations, including the applicant’s ties to Australia, the hardship he would suffer if returned to Fiji, and the hardship his family and partner would suffer. Accordingly, the Minister was not satisfied that there was another reason why the original cancellation decision should be revoked: s 501CA(4)(b)(ii) of the Migration Act.

Consideration

16    The Minister’s decision was made on 19 September 2019 from which the applicant had 35 days in which to bring judicial review proceedings: s 477A(1) of the Migration Act. That period therefore expired on 24 October 2019, while the applicant’s Originating Application was filed on 1 November 2019, 7 days out of time. At that time the applicant did not file an application for an extension time, as was necessary, although this was rectified on 18 December 2019.

17    An applicant for an extension of time carries the onus of persuading the Court that it is appropriate in the circumstances of the case, for the extension to be granted: BZADJ v Minister for Immigration and Border Protection [2017] FCA 853 at [8] per White J.

18    The Court may extend time if satisfied “that it is necessary in the interests of the administration of justice” to do so: s 477A(2)(b) of the Migration Act. That is “an express precondition to the exercise of discretion in favour of an applicant, namely that the extension of time is ‘necessary’ in the interests of the administration of justice ... It is only if that precondition is satisfied that the discretion is enlivened”: SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [43] per Wigney J. However, the provision does not define or confine the matters to which the Court can or should have regard in considering the interests of the administration of justice. Rather, it is for the Court to determine what is necessary in the interests of the administration of justice in the particular circumstances of the case: SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 at [29] per Robertson J with Logan and Kerr JJ agreeing at [91] and [92].

19    The position was conveniently summarised by Foster J in SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 139 ALD 252 at [46]-[48] as follows:

46. There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice ...”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.

47. The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;

(b) Whether there is any prejudice to the Minister;

(c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

48. The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.

20    It is against that background that I turn to consider the application in this case.

21    The application for an extension of time filed by the applicant states “I was to do this by the courts” and “I am still awaiting to hear about legal aid representations”.

22    During the hearing the applicant explained that he was in detention and that the delay was due to the lack of assistance he had in preparing the application. The respondent did not take issue with that explanation, and the delay is only a short one. Moreover, the respondent accepts that there is no prejudice in granting the extension.

23    However, the difficulty for the applicant is that he has not established any sufficiently arguable grounds of review to justify any extension. It will seldom be in the interests of justice to grant an extension of time where there is little or no prospect of success: Afu v Minister for Home Affairs [2018] FCA 1311 at [3] per Bromwich J.

24    The application for review simply states “[a]ppealing” with no grounds identified. I note also that in his affidavit the applicant stated that “I have provided answers which are true based on my own knowledge and which are true to the best of my knowledge, information and belief based on my inquiries for relevant persons”. That also does not identify a ground of review.

25    The matters raised by the applicant during the hearing do not establish any basis for a review.

26    First, the applicant submitted that when he was in prison persons who were subject to s 501 orders (refusal or cancellation of visa on character grounds) were not permitted to undertake work outside the prison. As he was permitted to do so, he submitted the he did not come within s 501. However, that logic does not follow. The applicant’s visa was cancelled under s 501(3A), which turned on two objective things: (1) the applicant did pass the character test because he has a substantial criminal record; and (2) at the time of the cancellation decision the applicant was serving a sentence of imprisonment. Consequently, the effect of s 501(3A) is that the visa was mandatorily cancelled. It is irrelevant whether the applicant was entitled to leave prison at various points in time.

27    Second, the applicant submitted that he understood that a person received two warnings before their visa was revoked. As noted above, the revocation of the applicant’s visa in this case was mandatory as he failed the character test on the basis identified in the Minister’s decision. There is no discretion in relation to the cancellation of a visa on that basis in the Migration Act. The issue before the Minister was revocation of that cancellation.

28    Third, the applicant submitted that there was an error on his criminal record with an offence being recorded which he did not commit. That is correct. However, the Minister’s reasons reflect that he recognised that fact and he made plain that he did not take that offence into account. Moreover, during the hearing the applicant accepted that the offences which were the basis of the Minister’s decision did relate to him.

29    In reply, the applicant also raised matters which related to the merits of his application as opposed to reflecting error in the Minister’s decision (for example, that if he was in Fiji he could not look after his parents). However, as explained to the applicant during the hearing, this application is not a merits review.

30    The respondent, in addition to addressing the applicant’s submission, submitted that there is no jurisdictional error apparent in the Minister’s reasons.

31    The Minister was plainly correct to not be satisfied that the applicant passed the character test: cf. ss 501CA(4)(b)(i), 501(6) and (7) of the Migration Act. In relation to whether there was another reason why the visa cancellation decision should be revoked, the Minister took into account the representations made and documents provided by the applicant. As is apparent from a consideration of the reasons, the Minister provided an evident and intelligible justification for the findings that he made, in relation to each of the considerations that he took into account. His conclusion, that the applicant represented an unacceptable risk of harm to the community and that this outweighed all the other considerations before him, was one that a reasonable and rational decision-maker could have reached, on the available material: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131] and [135] per Crennan and Bell JJ. The respondent referred to the observation of Allsop CJ in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21], that the question is “whether a decision-maker could reasonably come to the conclusion”. The respondent’s submission that there is nothing illogical, irrational or otherwise legally erroneous (so as to give rise to a jurisdictional error) in the Minister’s reasons should be accepted.

Conclusion

32    As there is no sufficiently arguable ground of review, the extension of time in which to file the review is refused.

Associate:

Dated:    28 February 2020