FEDERAL COURT OF AUSTRALIA

Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2020] FCA 319

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant do pay the first respondent's costs to be fixed by way of a lump sum if not agreed.

3.    If it is necessary to fix costs then:

(a)    the first respondent may file and serve an affidavit constituting a Costs Summary in accordance with the Court's Cost Practice Note (GPN-COSTS);

(b)    within 14 days of service of the Costs Summary the applicant do file and serve any costs proposal in accordance with GPN-COSTS; and

(c)    if either party thereafter requests a determination of an appropriate lump sum figure then the matter shall be referred to a Registrar for determination of the lump sum on the papers.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Bernard came to Australia from Mauritius in 2009 with his wife and young daughter who was then almost 3 years old. He obtained a permanent work visa and lived here with his wife and daughter. Other members of his extended family live in Australia. Mr Bernard developed problems with gambling and drug addiction. He used credit card details of other people to purchase goods online and then sold them for cash. Between 2011 and 2015 he was convicted on a number of separate occasions of obtaining property by deception and other related charges.

2    Mr Bernard's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) when the Minister was satisfied that he had a substantial criminal record and for that reason did not pass the character test. He made representations to the Minister seeking to have his visa cancellation revoked in the exercise of the power conferred by s 501CA of the Act. A delegate of the Minister decided not to revoke the cancellation. In May 2017, the Administrative Appeals Tribunal affirmed the decision of the delegate (First Tribunal Decision).

3    In December 2017, Mr Bernard applied for a protection visa. His application was refused and the refusal was affirmed by the Tribunal on review (Second Tribunal Decision).

4    Then in November 2018, Mr Bernard made application in the Federal Circuit Court to review the Second Tribunal Decision. At the time of hearing of that application in June 2019 he was in immigration detention. He refused to attend and his application was refused due to his failure to appear at the hearing.

5    On 4 December 2019, Mr Bernard applied in this Court for an extension of time in which to seek review of the First Tribunal Decision for jurisdictional error. In accordance with the requirements of the Federal Court Rules 2011 (Cth), a draft originating application was also filed. The draft sets out general grounds which, to the extent that they describe alleged jurisdictional error, are expressed in the most general of terms. I mean no criticism of Mr Bernard because it appears that the draft originating application was prepared without legal assistance and required grounds to be stated on the basis of an area of the law that is not without its complexities.

6    Shortly thereafter, Mr Bernard made application with pro bono legal assistance for an injunction to restrain his removal from Australia pending the determination of his application for an extension of time. At the time of that application, the lawyers then acting on his behalf prepared draft grounds of review raising seven grounds. The application for injunctive relief was argued by reference to those seven grounds.

7    Mr Bernard's application for injunctive relief was dismissed: Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2187. McKerracher J expressed the view that given the length of the delay, the merits of the application would have to be particularly obvious: at [28]. His Honour was not satisfied that the grounds as raised constituted a sufficiently persuasive case on the merits to warrant the grant of injunctive relief: at [39].

8    On 7 February 2020, Mr Bernard made a further application for an injunction. It was dismissed by Jackson J as an abuse of process: Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 109.

9    Thereafter, Mr Bernard was removed to Mauritius but seeks to proceed with his application for an extension of time in which to bring a review application in respect of the First Tribunal Decision. At his request, he appeared by telephone to make submissions in support of his application.

10    Mr Bernard has sworn two affidavits in support of his application. They depose to the following matters in support of an extension of time:

(1)    about a month prior to the First Tribunal Decision being delivered, Mr Bernard's wife served him with divorce papers and that caused him significant distress and anxiety;

(2)    he wanted to appeal the First Tribunal Decision, but was advised by his lawyers that there was no ground of appeal;

(3)    he did not have any legal representation (a statement made prior to his first application for an injunction where he was represented by pro bono counsel);

(4)    he has a 13 year old daughter and his removal from Australia 'will affect her and her study, her mental health and consequently will destroy her life';

(5)    he was prohibited from using the internet until June 2019 as part of his sentence for past offending;

(6)    he has been in poor health due to, amongst other things complications from hepatitis C infection, type 2 diabetes and a congenital heart defect and after the First Tribunal Decision his main focus was on his health and not on any appeal;

(7)    he made the application for a protection visa based on advice he received from a Legal Centre; and

(8)    prior to December 2019, he did not know he could apply to extend time to appeal the First Tribunal Decision.

11    The statutory time limit for seeking a review of the First Tribunal Decision was 35 days of the date of the decision: s 477A(1). There is a statutory jurisdiction under s 477A(2) to extend time 'as the Federal Court considers appropriate' if two requirements are satisfied, namely:

(a)    an application [for an extension of time] has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

12    On an application for an extension of time, the Court considers amongst other things the applicant's reasons for delay and whether the application, if an extension were granted, would have any prospects of success: Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [26]. The Court will also consider the length of delay and whether there is prejudice to the respondent: see the cases collected recently by Steward J in CLS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 237 at [5]. Prejudice to the respondent will count against an extension, but the absence of prejudice does not itself justify an extension: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-349. The Minister did not claim to be prejudiced if the extension of time were granted.

13    When considering an application to extend time, it has been said that the merits of proposed grounds should be evaluated at a reasonably impressionistic level or in a fairly rough and ready way: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]; Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [21]; and Guo at [27].

14    A number of cases have approved the following statement by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] (when considering the approach to be applied by the Federal Circuit Court in considering an application for an extension of time under s 477(2) of the Act):

… it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless ... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level … into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

15    The same reasoning applies under s 477A which, for present purposes, adopts the same language as s 477.

Delay not adequately explained

16    In oral submissions, Mr Bernard explained his delay on the basis that he had been in immigration detention and for much of the time he did not have access to the internet. He said it was hard for him to research grounds on which to review the Tribunal decision. He had been trying to make contact with lawyers. He spoke to a lawyer in Sydney who said he did not have grounds for review and that it would be better to go for a protection visa rather than judicial review of the First Tribunal Decision. He said his only option was to rely on the lawyer.

17    For the following reasons, taking account of the submissions and the evidence, the delay has not been adequately explained. Taken with the length of delay that counts significantly against the application for an extension.

18    The issues with Mr Bernard's health do not account for the delay particularly as he was able to commence an application for a protection visa and seek review when it was refused. The statements concerning advice as to lack of merits in challenging the First Tribunal Decision do not account for the extent of the delay. On the evidence Mr Bernard had access to the assistance of a registered migration agent in his application for review that resulted in the Second Tribunal Decision. It is not the case that he was foreclosed from taking steps to advance any application to review the First Tribunal Decision if indeed he wanted to do so as his affidavit evidence suggests. Acting on legal advice he pursued a course of applying for a protection visa rather than seeking review of the First Tribunal Decision.

19    It has been held that pursuing a different avenue for obtaining a favourable outcome under the Act is not an adequate explanation for failing to lodge an appeal. To do so is to treat the application for review as a sort of Plan B to which there would be resort only if the other avenue was unsuccessful: Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [28]-[29] (Gyles, Besanko and Jessup JJ). In that instance, the delay was only measured in months. In this case, the extent of delay by Mr Bernard was much longer and really represented a decision (on legal advice) not to pursue an application for review and instead to apply for a protection visa. The possibility of an application for review was only revived after Mr Bernard was unsuccessful in pursuing the protection visa application, a review that resulted in the Second Tribunal Decision and an application for review in the Federal Circuit Court.

20    In submissions for Mr Bernard on the injunction application before McKerracher J, reliance was placed on the decision in Applicant in WAD 230/2014 v Minister for Immigration & Border Protection [2014] FCA 1351, a case in which there was also a delay of two and a half years but an extension of time was granted. One important difference between that case and the present was that there was evidence that the applicant for an extension was still trying to pursue an application for review even though he too had applied for a protection visa: at [28]-[29]. Gilmour J was satisfied that, in the circumstances he faced, the applicant in that case did all that he could to obtain the necessary legal advice to make a meaningful application whilst also pursing the protection visas application: at [35]. In granting an extension, Gilmour J also noted that unlike other cases 'in this case the Minister, in effect, acknowledges for the purposes of this application that the applicant's substantive proceeding is not without merit': at [34].

21    The difficulties faced by Mr Bernard in pursuing his rights in detention may be accepted, but they do not explain a delay of two and a half years during which time there is no evidence of steps being taken to seek to advance the application that Mr Bernard now seeks to advance.

Insufficient merit on an impressionistic assessment

22    As to the merits of the proposed grounds, Mr Bernard confirmed that the grounds he seeks to raise are the seven grounds prepared by counsel at the time of the application for an injunction to restrain his removal from Australia. In those circumstances, I treat them as the grounds that Mr Bernard seeks to advance if his application for an extension of time is granted even though they are not the grounds stated on his draft application for review. The Minister in written submissions approached the matter in the same way.

23    Mr Bernard correctly summarised the seven grounds by saying that everything that he would say would be about his daughter. He made submissions about her current circumstances in Australia which is a matter that is obviously causing him concern. He described the considerable difficulty there is for him in making contact with his daughter in Australia. He says he has only been able to speak to her once since leaving Australia. He says that the prejudice is mostly for his daughter although he did also describe the difficulties that he faces in Mauritius.

24    The Tribunal considered the best interests of Mr Bernard's daughter when it made its decision (paras 26-33). It began by correctly stating that it must make a determination about whether revocation of the cancellation of the visa was in the best interests of the daughter (then aged about 10 or 11 years). The matters that the Tribunal addressed in its reasons were as follows:

(1)    it found that there was no evidence that Mr Bernard's wife was suffering from a medical condition of a kind that might prevent her from looking after their daughter;

(2)    it considered evidence to the effect that their daughter found having her father away for some months a difficult experience;

(3)    it referred to evidence from Mr Bernard's wife to the effect that Mr Bernard was his daughter's hero and despite everything he had always been a loving dad and taking him away will seriously affect their lives;

(4)    it referred to the fact that the daughter had attended the hearing and had given evidence that she had to stay with her aunty and uncle three to four times a week and she was happy when her father came back to stay;

(5)    it referred to evidence from Mr Bernard's brother in the following terms (para 29);

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.

(original emphasis)

(6)    it referred to evidence about strains on the relationship between Mr Bernard and his wife;

(7)    it concluded that even if Mr Bernard was allowed to remain in Australia, then the possibility of Mr Bernard and his wife separating was 'significantly high';

(8)    it found that Mr Bernard 'plainly has not been a role model for his daughter to date'; and

(9)    it found that there was no evidence that Mr Bernard had contributed in any meaningful way to his daughter's schooling or social development which left open whether he was likely to play a positive parenting role in the future.

25    Later, the Tribunal found (paras 42-43):

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.

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.

(original emphasis)

26    The conclusion by the Tribunal included the following (para 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.

27    Turning then to the alleged jurisdictional errors raised by each of the seven grounds. Jurisdictional error is 'a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it': Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [24] (Kiefel CJ, Gageler and Keane JJ). Applying labels or categories is not a means of identifying jurisdictional error. It requires the identification of a specific respect in which the decision exceeds the authority entrusted to the repository of the decision-making power. It is a matter which requires a context specific inquiry: SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456 at [20]-[21] (Allsop CJ). In the circumstances of this case, the statutory power entrusted to the Tribunal imposed a duty to undertake a substantive review, to engage with matters raised and determine the facts. The Tribunal had statutory authority to make factual findings.

28    For the following reasons, on a rough and ready assessment the grounds lack sufficient merit to support the exercise of a discretion to grant an extension of time. The Court must be satisfied that an extension is necessary in the interests of justice. Once the nature of the Tribunal's reasoning is considered, the grounds do not support that conclusion.

29    Ground 1 alleges a failure to take into account the likely effect any separation would have on Mr Bernard's daughter. It is said that it was mandatory for the Tribunal to consider that matter. There was no such failure. The nature of Mr Bernard's relationship with his daughter was considered and a factual conclusion was reached as to the effect his absence would have on her best interests. The Tribunal reached a reasoned conclusion to the effect that it was a consideration that separation favoured revocation, but did not carry significant weight in the circumstances of the case.

30    Ground 2 alleges a failure to take into account the views of Mr Bernard's daughter. This too was said to be a mandatory matter for the Tribunal to consider. There was no such failure. The evidence given by the daughter was considered. There was no transcript of the evidence of the daughter. Her evidence was summarised. The reasoning by the Tribunal referred to Mr Bernard having a good relationship with his daughter and stated that this was confirmed by his daughter at the hearing. Reasoning in that manner took account of the views of Mr Bernard's daughter. It was also submitted before McKerracher J that the Tribunal failed to refer to the daughter's age when it said it gave due weight to her age and maturity. However, that is not correct. The Tribunal did refer to her age.

31    Ground 3 alleges a failure to consider what rights the daughter would have to travel to and live in Mauritius. That submission was not supported by reference to any claim before the Tribunal that such a possibility should be given consideration. The matter was put to the Tribunal on the basis that Mr Bernard's removal would result in separation from his daughter. The Tribunal dealt with the matter in that way.

32    Ground 4 alleges that the Tribunal's conclusion that there was no evidence that Mr Bernard contributed in any meaningful way to his daughter's schooling or social development was illogical or lacking an intelligible basis. That could only be so if there was evidence to contrary effect. Reliance was placed on the finding (para 43) to the effect that Mr Bernard's relationship with his daughter is good and the relationship 'has the potential to be significant in his daughter's social development'. However, the Tribunal went on to find that if he were unable to overcome his serious social problems they may well have a detrimental effect on his daughter's development. It also found that the relationship was likely to become strained if he reoffended. There is no illogicality in that approach. Otherwise, it was said that there was evidence that Mr Bernard has been his daughter's primary carer before being imprisoned and detained. However, it was his absence for those reasons that provided the foundation for the Tribunal's conclusions. The Tribunal was concerned with the likely position in the future if Mr Bernard was allowed to stay in Australia. It was logical to reason from Mr Bernard's considerable absence in reaching the conclusion that it did. Even assuming there was evidence of a different position before Mr Bernard's imprisonment and subsequent detention that did not make the Tribunal's 'no evidence' finding illogical.

33    Ground 5 challenged a factual finding to the effect that Mr Bernard's wife appeared to be the strongest tie he has with Australia as illogical because it ignored his connection with his daughter. The finding made by the Tribunal was as follows (para 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.

34    The Tribunal's conclusion on his ties to Australia included the following (para 60):

His ties to Australia appear to be limited to the relationship with his daughter and, possibly, his wife.

35    It follows that there is no merit in ground 5 because the Tribunal did not ultimately make findings in terms that ignored Mr Bernard's relationship with his daughter.

36    Ground 6 alleges a failure to take into account that the daughter was primarily being cared for by her paternal family and not her mother. This is not a ground of review. It may be a factual conclusion that Mr Bernard considers could be reached on the evidence. However, it is not a finding made. Nor is any basis advanced for a claim that there was jurisdictional error in not making the finding. It is couched as a failure to take into account a relevant consideration (not a mandatory consideration). That is no more than a complaint about fact-finding which is not a basis for review for jurisdictional error.

37    Ground 7 seeks to challenge the finding that should Mr Bernard re-offend his relationship with his daughter was likely to become strained. It was said to be illogical and lacking any intelligible foundation or not based on any evidence. The Tribunal's task required it to form a view as to what was likely to occur in the future based upon evidence as to current circumstances. The finding concerning the consequence of any reoffending for Mr Bernard's relationship with his daughter was a finding of the kind that was within the jurisdiction of the Tribunal. It was a conclusion that was open to the Tribunal.

38    Whilst the efforts that Mr Bernard has made to seek to remain with his daughter in Australia are commendable and no doubt motivated by the best of intentions and sincere concern for the welfare of his daughter, it has not been demonstrated that there are any grounds that are sufficiently arguable to challenge the Tribunal's decision on the basis of alleged jurisdictional error and thereby justify an extension of time.

Conclusion and costs

39    For the above reasons, given the extent of inadequately explained delay and the absence of sufficient merit in the proposed grounds of review, the application for an extension of time must be refused. No matter was advanced as to why costs should not follow the event. The application should be dismissed with costs.

Associate:

Dated:    12 March 2020