FEDERAL COURT OF AUSTRALIA

Lum v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 324

ORDERS

THE COURT ORDERS THAT:

1.    Application dismissed.

2.    The applicant pay the first respondent's costs of and incidental to the application fixed at $3,500.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The applicant seeks an extension of time to apply for judicial review of a decision of the Administrative Appeals Tribunal to affirm the decision of the delegate of the Minister not to revoke the mandatory cancellation of his visa on character grounds.

2    The applicant is a citizen of New Zealand. He last arrived in Australia in January 2004 and was granted a Special Category (Class TY) (Subclass 444) (Temporary) visa at that time.

3    The applicant has a criminal history dating back to 2000.

4    On 16 November 2017 the applicant was convicted of robbery with actual violence and sentenced to 5 years imprisonment. The following month the delegate of the Minster made a decision to mandatorily cancel the applicant's visa under s 501(3A) of the Migration Act 1958 (Cth) on the basis that the applicant did not pass the character test because of his 'substantial criminal record'.

5    The applicant requested revocation of the decision to mandatorily cancel his visa, but the delegate refused to revoke the mandatory cancellation.

6    The applicant applied to the Tribunal for review of the delegate's decision, and on 17 May 2019 the Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation.

7    On 16 August 2019 the applicant was served with a notice of removal from Australia.

8    On 26 August 2019 the applicant filed this application for an extension of time for a review of the Tribunal's decision (about 66 days outside the statutory period for filing the application).

9    On 29 August 2019 the applicant applied to this Court for an injunction restraining his removal from Australia until further order. The application was heard on an urgent basis by Collier J who granted injunctive relief: Lum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1420.

10    However, an affidavit has since been filed on behalf of the Minister by Georgina Ellis, a solicitor employed by the Minister's solicitors, Sparke Helmore. Ms Ellis attaches a copy of a request for removal from Australia signed by the applicant on 12 February 2020 and received by Ms Ellis on 27 February 2020. Ms Ellis also attaches a copy of a letter to the applicant, sent to him by email on 27 February 2020, seeking confirmation as to whether or not he wished to proceed with this application, and informing him that if he did not appear at the hearing on 11 March 2020 the Minister would seek to have his application dismissed with costs.

11    Ms Ellis says that Sparke Helmore received no response to the letter.

12    On 5 March 2020 Ms Ellis received a copy of the applicant's movement history indicating he left Australia on 3 March 2020.

13    The applicant was not present today in Court, that absence being explicable on the basis he has been removed from Australia. The Court has attempted to contact the applicant over a considerable period but has received no communications from him.

14    Inquiries of my Associate and Court staff include the following:

(a)    on 6 September 2019 my chambers sent an email to the parties with guidelines relevant to the hearing. The applicant did not respond to the email;

(b)    on 2 October 2019 my chambers sent an email to both parties attaching programming orders and confirming that the application was listed for hearing on Wednesday 11 March 2020 at 10.15 am. The applicant did not respond to the email;

(c)    on 6 March 2020 and 10 March 2020 the Federal Court Registry emailed the applicant to ask for his best contact number for the hearing on 11 March 2020. The applicant did not respond to either of the emails; and

(d)    on 10 March 2020 the Federal Court Registry called the applicant's Australian mobile phone number, which was directed to voicemail.

15    In those circumstances, counsel for the Minister has applied for an order that the application be dismissed on the grounds set out in r 5.22 and r 5.23 of the Federal Court Rules 2011 (Cth). Those rules relevantly provide as follows:

5.22    A party is in default if the party fails to:

(a)    do an act required to be done, or to do an act in the time required, by these Rules; or

(b)    comply with an order of the Court; or

(c)    attend a hearing in the proceeding; or

(d)    prosecute or defend the proceeding with due diligence.

5.23    (1)    If an applicant is in default, a respondent may apply to the Court for an order that:

(a)    a step in the proceeding be taken within a specified time; or

(b)    the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant:

(i)    immediately; or

(ii)    on conditions specified in the order.

16    In my view it is appropriate that the application be dismissed.

17    I am satisfied that the applicant has had ample warning that the hearing was listed for today. He was informed of the date in October 2019 and has subsequently been reminded. He has not complied with any programming orders as to the filing of any proposed amended application, affidavits or submissions. He has not communicated with the Court or Sparke Helmore. He has not taken any steps to indicate to the Court that he intends to continue to prosecute this application.

18    I am fortified in the view that it is appropriate to dismiss the application having regard to the principles applicable to an extension application, although I acknowledge that the merits of the application have not been fully argued before me.

19    The Court may extend the time for the making of an application if it is satisfied that it is necessary in the interests of the administration of justice to do so: s 447A(2) of the Act. In considering whether an extension of time is in the interests of the administration of justice, the Court will have regard to the length or extent of the delay; the explanation for the delay; any prejudice to the respondent; and the merits of the substantive application: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. In regards to the merits of the substantive application, the court considers 'the outline of the case', without 'going into much detail on the merits': Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [3]-[4] (Brennan CJ and McHugh J), [66] (Kirby J).

20    As to the question of delay, r 31.23 of the Federal Court Rules relevantly requires that an application for an extension of time be accompanied by an affidavit stating briefly but specifically the facts on which the application relies and why the application was not filed within time.

21    The applicant filed an affidavit dated 28 August 2019 in support of the extension application. The applicant apologised that the affidavit was not properly witnessed and explained why that was so. However, the affidavit did not explain the 66-day delay nor the reason why the judicial review application was not filed within time. Some delay is explained by the applicant's error in attempting to file the application in the wrong court but that did not occur until 21August 2019 and does not explain the preceding long period of delay.

22    The affidavit includes the proposed grounds on which the applicant relies for his judicial review application. Those grounds are (renumbered to exclude paragraphs that seek relief only):

(1)    The first respondent did not properly apply s 501CA and s 501CA(4) of the Act;

(2)    The second respondent's decision was unreasonable;

(3)    The second respondent took into account irrelevant considerations;

(4)    The second respondent failed to take relevant considerations into account;

(5)    There was insufficient evidence or no evidence to support the various findings made by the second respondent;

(6)    The first respondent failed to properly exercise his discretion under s 501CA and s 501CA(4) of the Act;

(7)    The second respondent's decision involved an error of law; and

(8)    The second respondent did not comply with the rules of natural justice and/or the applicant was denied procedural fairness.

23    As to the merits of the application having regard to those grounds, the starting point is the Tribunal's reasons. It is not necessary to address them in detail.

24    The Tribunal noted that the issues before it were first, whether the applicant passed the character test and second, whether there was another reason why the decision to cancel should be revoked.

25    The Tribunal considered the applicant's criminal history and in particular the imposition of custodial terms of 5 years (for robbery with actual violence) and 2 years (for dangerous operation of a motor vehicle while affected by an intoxicating substance). The Tribunal was satisfied that the applicant did not pass the character test.

26    The Tribunal then properly had regard to 'Direction 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA'.

27    As to 'Primary Consideration A - Protection of the Australian Community', the Tribunal found that the applicant's conduct was very serious. It noted that some of the applicant's offending involved violent acts against women, a matter that the Direction guides is to be viewed very seriously. It further found that there was a strong and convincing likelihood that he would engage in further very serious conduct if returned to the Australian community, especially were he to resume his abuse of alcohol and other illicit substances. The Tribunal placed particular weight on the duration, frequency and violent nature of the applicant's offending, the regime of sentencing and previous warnings he had received as to the potential for his visa to be revoked. The Tribunal found that the consideration weighed heavily in favour of non-revocation.

28    As to 'Primary Consideration B - The best interests of minor children in Australia', the Tribunal considered relevant matters including the absence of the applicant from the lives of his children for substantial periods and the minimal evidence of any consistent parenting role. It acknowledged that the applicant contended he had a strong relationship with his children and that, as they are young minors, there was still a considerable period of time in the future during which the applicant may have a role in their lives, but also noted the ability for the applicant to have a measure of contact with the children through electronic means including Skype. The Tribunal found that the best interests of the applicant's two minor children in Australia weighed slightly in favour of revocation of the decision to cancel the applicant's visa.

29    As to 'Primary Consideration C - The expectations of the Australian Community', the Tribunal found that the community's expectations would endorse a finding of non-revocation of the mandatory cancellation of the applicant's visa. The Tribunal placed particular weight on the serious nature of his offending, the lack of insight into the nature of his offending and the fact that none of the psychological symptomatology predisposing him to offend had been addressed or dealt with by independent expertise.

30    In respect of the other considerations listed at para 14 of the Direction, the Tribunal found that (adopting the Minister's summary):

(1)    there were no non-refoulement obligations relevant to the applicant;

(2)    the applicant's ties to Australia were significantly outweighed by his very serious criminal conduct;

(3)    there was no evidence of any impact on Australian business interests or of what impact the applicant's continued presence in Australia would have on his victims; and

(4)    the extent of impediments if removed did not weigh in favour of the applicant in circumstances where he was relatively young, in good health and had demonstrated the ability to derive an income.

31    The Tribunal found that there was not another reason to revoke the cancellation and affirmed the decision under review.

32    Against that backdrop it is appropriate to consider the applicant's proposed grounds of review.

33    The first point to note about the grounds is that they are unparticularised, despite the fact that the Court afforded the applicant an opportunity to amend them. This would provide a basis for dismissing the grounds: SZNXA v Minister for Immigration and Citizenship [2010] FCA 775; and AYE16 v Minister for Immigration and Border Protection [2018] FCA 108 at [25].

34    Notably, it is not possible to discern what error ground 7 is intended to address.

35    Proposed grounds 1 and 6 take issue with the delegate's decision. This Court has no jurisdiction to review that decision.

36    As to proposed grounds 2 and 5, the applicant has not identified why it is said that the Tribunal's decision was unreasonable or which findings he suggests that there was insufficient or no evidence to make. Having read the Tribunal's reasons, my impression is that the Tribunal made findings based upon identified evidence and that the findings it made were reasonably open to it.

37    As to proposed grounds 3 and 4, the applicant has not identified the irrelevant considerations he says the Tribunal took into account or the relevant considerations he says the Tribunal ought to have taken into account, but did not. The express matters that the Tribunal was required to take into account were those set out in the Direction. It is clear from the decision record that the Tribunal carefully considered those matters and weighed them.

38    As to proposed ground 8, the applicant has not identified why it is said that the Tribunal breached the rules of natural justice or denied him procedural fairness. There is nothing on the evidence to suggest that the applicant did not have a meaningful opportunity to advance his case. The Tribunal's reasons indicate that the applicant was given the opportunity to make submissions and give evidence on a number of matters during the course of the Tribunal hearing.

39    Acknowledging that I have considered the proposed case in outline only and in the context of only generalised grounds, I do not consider that the grounds indicate that the applicant has any real prospect of success on a review application.

40    Therefore, taking into account the absence of any proper explanation as to delay and the absence of any real prospect of success on a review application, I do not consider the extension application has any real prospect of success.

41    The proceeding is accordingly dismissed under r 5.23(1)(b) of the Federal Court Rules.

42    The first respondent seeks an order that the applicant pay its costs fixed in the amount of $3,500. Having regard to the nature of the application, I do not consider the amount sought is inappropriate and I will make that order.

Associate:

Dated:    11 March 2020