Federal Court of Australia

Nguyen v Minister for Home Affairs [2020] FCA 1261

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant must pay the first respondent's costs of the application, to be assessed if not agreed.

3.    On or before 4.00 pm on 15 September 2020, the parties must file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent's costs.

4.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent's costs is referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

JACKSON J:

1    Mr Nguyen seeks an extension of time to apply for judicial review of a decision of the Administrative Appeals Tribunal. He is a citizen of Vietnam, who was in Australia under a Class BB subclass 155 Five Year Resident Return Visa. The visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) because Mr Nguyen did not pass the character test due to a substantial criminal record, and was serving a sentence of imprisonment. On 16 May 2019, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) not to revoke the mandatory cancellation of the visa.

2    Relevant background to the matter is set out in the Tribunal's decision. Mr Nguyen arrived in Australia in 1987 at the age of 15 as a refugee. He has a history of over 30 criminal offences from 1990 (when he was 18) onwards. These include stealing, possession, use and supply of prohibited drugs, assaulting police, possession of unauthorised firearms and driving offences. He was given at least two warnings that he may be deported because of his criminal history. In 2018 he was convicted of offences committed in 2016, including possession of methylamphetamine with intent to sell or supply. His conviction on that offence led to a sentence of imprisonment for 20 months, which gave rise to the mandatory cancellation of his visa.

3    For the reasons that follow, the application will be dismissed.

Extension of time

4    Under s 477A(1) of the Migration Act, any application for judicial review of the Tribunal's decision needed to be made within 35 days of the date of the decision. Mr Nguyen did not lodge his application for an extension of time until 8 October 2019, and when he did so the application did not provide proposed grounds of review, or say why an extension of time should be granted, so it was not accepted for filing. The application ended up being accepted for filing on 30 October 2019, meaning that it was 132 days or a bit over four months out of time.

5    The court has power to grant an extension of time under s 477A of the Act if an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order, and the court is satisfied that it is necessary in the interests of the administration of justice to do so: s 477A(2). The court will generally exercise the discretion which arises by reference to the following factors:

(1)    While there is no requirement to show special circumstances, an extension should not be granted unless the court is satisfied that it is proper to do so. The prescribed period is not to be ignored.

(2)    An acceptable reason for the delay is normally required.

(3)    Any prejudice to the other parties, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension. But the mere absence of prejudice is not enough to justify an extension.

(4)    The merits of the application that will proceed if an extension of time is granted should be taken into account.

See Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349.

Explanation for delay

6    Mr Nguyen has no legal representation before this court. He swore an affidavit which stated the basis of the application for an extension of time as follows:

The Applicant comes from a non-[English] speaking background and lacks the academic capabilities in the preparation of this matter that had to be lodged within the 35 day time frame from the adverse date by the Administrative Appeals Tribunal.

The Applicant is without liberty and was unrepresented at all relevant times being in prison then taken straight into Immigration Detention custody.

The duty of care failed the Applicant under s256 of the Migration Act 1958 particularly by not providing the Applicant with the necessary appeal forms needed in his appeal process.

The Applicant is restricted to limited resources and left in a virtual limbo pending removal.

7    Aware of the difficulties facing Mr Nguyen as an unrepresented applicant in detention, I considered it necessary at the hearing of the application to swear him in and ask him some questions to give him a further opportunity to provide evidence in explanation of the delay. The Minister did not object to that course. The questioning elicited the following.

8    Vietnamese is Mr Nguyen's first language but in his 30 years in Australia he has picked up English. Nevertheless, Mr Nguyen appeared at the hearing and gave his evidence with the assistance of an interpreter. He said he can read English 'a little bit' but he accepted that he can carry on normal day to day conversations in English.

9    Mr Nguyen received a copy of the Tribunal's decision shortly after it was made on 16 May 2019. At that time he was in Acacia Prison. He did not try to read the decision but he did have a friend read it out to him. He understood that the effect of the decision was that his visa would not be returned to him. He knew he had a right of appeal or review from the decision and understood that the application had to be lodged within 28 or 30 days.

10    Mr Nguyen had a solicitor at the time, but he ran out of money to pay the solicitor. This, he says is why there was a delay. The solicitor did not give him any advice about the prospects of any application for review before his retainer was terminated.

11    While still at Acacia, Mr Nguyen asked another prisoner who was a friend of his to write a letter to present to the court. The person did write a letter for him which Mr Nguyen sent, but it was returned with a notation that the address was incorrect. Mr Nguyen said he had kept the letter, but it was not in evidence. After he received the letter back he asked his friend to find out the correct address to which to send it.

12    However before the correct address (assuming there was one) was found, Mr Nguyen was transferred to Wooroloo Prison Farm. This happened a few weeks after he received the Tribunal's decision. He was at Wooroloo for some five weeks. He made inquiries while there to see whether anyone could help him with his application, but there was no one.

13    Mr Nguyen was then transferred to Yongah Hill Immigration Detention Centre, where he was up to the time of the hearing. There were many detainees there who were in a similar situation to him, that is, who were applying or wanted to apply for review of Tribunal decisions. Mr Nguyen said he tried to obtain some help from other detainees to prepare his application. It was with help from them that he managed to prepare the documentation which was eventually accepted for filing as the application for an extension of time to apply for judicial review. But according to Mr Nguyen, it was not an easy matter to find the people who could help him in the detention centre. It took time. Mr Nguyen did not attempt to contact any solicitors including any legal aid services while he was at Yongah Hill. He did not ask the people running the detention centre for access to any facilities so that he could prepare the application. But there were computers there to which he had access, and that is how he was able to prepare the application and affidavit (which are typed).

14    Counsel for the Minister declined to cross-examine Mr Nguyen on any of the above evidence, so it was unchallenged.

15    When Mr Nguyen was referred to the claim in his affidavit that the Department breached a duty of care under s 256 of the Act and was asked what he wanted to say about that, he only said that when he was notified of the Tribunal's decision he only received the letter telling him about the decision and he did not receive any instructions to help him to work out how to make the application for judicial review. That claim, and the evidence I have summarised above, does not disclose any basis to conclude that the Department has breached s 256 of the Act. That section provides:

Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.

16    The section effectively amounts to an entitlement for a detainee to be given a reasonable time and reasonable facilities to obtain legal advice and take proceedings preventing removal or deportation: SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140; (2014) 233 FCR 279 at [16]. But it is enlivened by the request of the person in immigration detention and there is no obligation to inform detainees that they may request legal assistance: Fang v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 245 at 290.

17    Mr Nguyen was not in immigration detention until he left Wooroloo, some time after he was notified of the Tribunal's decision. So s 256 did not apply to him up to that point. His evidence was that after he entered immigration detention he made no request for application forms or facilities and no attempt to obtain legal advice. But I infer from his evidence and the fact that he ended up making an application in (mostly) regular form that the necessary facilities were made available to him and he made use of them anyway. There is no basis for the claim that the Department did not comply with its duty under s 256. There is therefore no need to determine what significance any such breach would have as a matter of the application of the law to the facts of this case.

18    That said, I consider that the explanations that Mr Nguyen did give in evidence provide an adequate explanation for the delay in filing his application in the circumstances. Mr Nguyen is a lay person with the ability to speak ordinary conversational English but limited ability to read English and, it may be inferred, to write it. He had a solicitor at the outset but could not keep paying him; that explains part of the delay (although how long is unclear). Then he was moved to a new prison and, a few weeks after that, to immigration detention. Those moves would have been disruptive and were bound to inhibit his ability to obtain the necessary assistance to prepare and file the application. Nevertheless, it appears that he did what he reasonably could to obtain that assistance amidst the moves. It was not until he went into immigration detention that he was able to find fellow detainees with the necessary knowledge to prepare the documents. Then there was the unsuccessful attempt to file an application in regular form which occasioned further delay. All these matters taken together provide, in my view, a satisfactory explanation delay of over four months. While a delay of that magnitude is not insignificant, in the circumstances it was not inordinate.

Merits of proposed application for judicial review

19    The other main matter that is relevant to the exercise of the discretion as to whether to grant an extension of time is the merits of the proposed application for judicial review. Mr Nguyen's application identifies no proposed grounds of review of the Tribunal's decision. His affidavit in support of the application for an extension of time does not attach a draft application for judicial review or otherwise say what the grounds of review might be. So this is not a case where a potential ground of review has been advanced at all, even in the broadest terms. While one must make allowance for the undoubted difficulties facing a self-represented litigant, Mr Nguyen has put nothing before the court which can be evaluated, even to the limited extent appropriate to an application for an extension of time, in order to decide whether it is arguable: as to which see CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [5]-[6].

20    At the hearing, Mr Nguyen said he disagreed with a particular aspect of the Tribunal's decision where, he said, it found that his family life in Australia was disharmonious. When asked for other reasons why the Tribunal's decision was wrong, he also said that he had no relatives in Vietnam and would not be able to survive if he returned there. He said he had been punished for what he did wrong and he should now be left to live the rest of his life in Australia

21    Mr Nguyen also provided a long email to the court which, without objection from the Minister, I marked as MFI1 and took into account on the basis that it was a submission. It was, however, a submission which did not provide any basis on which the court might set aside the Tribunal's decision. It made various representations about how Mr Nguyen came to Australia, and how and why he fell into a life of drugs and crime. It referred to two charges of murder which, he said, were wrongful, and of which he was acquitted after years on remand. It referred to the interests of his family and the effect on his children of permanent separation from him. It said that he was not a risk of reoffending and would be a useful member of the Australian community. These were matters which, as will appear, the Tribunal considered.

22    In short, in his submissions Mr Nguyen raised various matters which may go to the merits of the Tribunal's decision. But in order to succeed on an application to this court for a decision under s 501CA of the Migration Act, Mr Nguyen would need to show that the Tribunal fell into jurisdictional error: see s 474(1) of the Migration Act; and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [76], [83]. It is not possible to establish an error of that kind by reference purely to the merits underlying the Tribunal's decision: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-38 (Brennan J). This court has no power to overturn the Tribunal's decision solely because it may disagree with the merits of the decision.

23    The only matter which Mr Nguyen raised which could conceivably be capable of establishing an error that invalidated the Tribunal's decision was his assertion that he was forced to plead guilty to the drug trafficking offence which led to his imprisonment for more than 12 months, and which provided the basis for the mandatory cancellation of his visa for failing to pass the character test. However it appears from the Tribunal's reasons that Mr Nguyen pleaded guilty to the relatively minor offence of possession of drug paraphernalia, and that the conviction for possession of methylamphetamine with intent to sell or supply which led to a term of imprisonment of more than 12 months was a jury verdict reached after a trial. In any event, it was not open to the Tribunal to impugn or question the essential factual findings that underpinned the conviction or sentence on which the power to cancel the visa, or to revoke that cancellation, depended: see HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 168 ALD 1 at [63], [77] (McKerracher J, Colvin J agreeing).

24    I have read the Tribunal's decision to consider whether any jurisdictional error is apparent on its face. Mr Nguyen was represented by counsel at the Tribunal hearing. I have set out some of the background to the decision at the outset of these reasons. It is clear that Mr Nguyen did not pass the character test. Having so found, in its reasons for decision the Tribunal went on to consider, in accordance with s 501CA(4)(b)(ii) of the Act, whether there was another reason why the original decision of the delegate should be revoked. The Tribunal did so by reference to Ministerial Direction No 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Cth) (Direction No 79), as s 499(2A) of the Act required it to do. It noted and considered submissions that were similar to the submissions contained in MFI1. These included references to Mr Nguyen's difficult upbringing and his concern about the effect that removal from Australia would have on his children.

25    The Tribunal reviewed Mr Nguyen's criminal history and found that his offending was frequent and increasingly serious. It included numerous drug offences including the supply or sale of heroin and methylamphetamine. The Tribunal considered some of the sentencing remarks following certain convictions and found that the criminal justice system had given Mr Nguyen multiple opportunities to reform his behaviour, which he had not taken. It also noted the he had received warnings about the cancellation of his visa and despite those warnings he had continued to offend. The Tribunal viewed the nature of his offending as very serious and this weighed against revoking the cancellation of the visa.

26    The Tribunal also considered the nature of harm to individuals or the Australian community if Mr Nguyen did reoffend, and found that there was a consistent pattern of serious drug offences which would result in serious harm to the community if he reoffended. The Tribunal found that Mr Nguyen's longstanding history of substance abuse was the main cause of his criminal offending and that, while he had expressed a commitment to rehabilitation, he lacked any plan to address his drug use problems if he returned to the community. The Tribunal noted that Mr Nguyen's connection with is family had not been a protective factor in the past. The Tribunal found that there was significant risk that Mr Nguyen would continue to abuse drugs and commit further offences if he were living in the community, and found that this weighed strongly against revocation of the cancellation of his visa.

27    The Tribunal gave consideration to the interests of Mr Nguyen's three minor children. It identified this as Mr Nguyen's central submission, that is, the impact on his children if he were to be removed from Australia. Mr Nguyen submitted at the Tribunal hearing that this would be particularly acute because their mother was herself facing drug charges and the possibility of imprisonment and there were no alternative care arrangements for the young children. The Tribunal found that there was a bond between Mr Nguyen and the children, although it expressed some doubt about how involved he had been in their upbringing in the past, even allowing for his frequent absences due to incarceration. It appears that this section of the Tribunal's reasons may be what Mr Nguyen was referring to at the hearing in this court when he expressed disagreement with findings about his home life being disharmonious, but that disagreement does not disclose any jurisdictional error and on their face, the findings the Tribunal made appear to have been open to it. After careful consideration of what might happen to the children if their father were removed, the Tribunal concluded that on balance it was in their best interests for the visa cancellation to be revoked, on condition that Mr Nguyen ceased his longstanding drug use and did not reoffend in the way he had in the past. The Tribunal considered that this weighed in favour of revocation of the cancellation of the visa.

28    In view of Mr Nguyen's history of offending, the Tribunal concluded that the third primary consideration, the expectations of the Australian community, weighed against the revocation of the cancellation decision.

29    As for the other considerations which Direction No 79 makes mandatory, where relevant, Mr Nguyen's counsel confirmed that he did not seek to raise any claims for protection or fears of harm on return to Vietnam, so international non-refoulement obligations were not relevant. The Tribunal considered the strength, nature and duration of Mr Nguyen's ties to Australia, which he had clearly developed over his 30 years here, and found that this weighed in favour of revocation of the cancellation of the visa. There was no material before the Tribunal indicating that impacts on Australian business interests or on victims of Mr Nguyen's crimes should or could be considered. The Tribunal did give detailed consideration to impediments that may face Mr Nguyen on his return to Vietnam, and accepted that due to a lack of family support, and the likely economic challenges he would face there, he would suffer some hardship if he were to return to that country. The Tribunal thus considered the matter which Mr Nguyen raised at the hearing in this court, as to his lack of relatives in Vietnam and his ability to survive if he returned there. The Tribunal found that this too weighed in favour of revocation. That was a view that was open to the Tribunal and this court cannot review the decision solely on the basis that Mr Nguyen may disagree with it on the merits.

30    The Tribunal concluded, however, that the primary considerations of the risk to the Australian community and the expectations of that community outweighed those other considerations, as well as the primary consideration of the best interests of the children. With respect, this was not the result of any formulaic or box-ticking approach on the part of the Tribunal; the concluding part of its reasons demonstrates real engagement with the competing factors in play, including a finding that the weight to be given to the best interests of the children was reduced by the Tribunal's concerns that it was likely that Mr Nguyen would reoffend.

31    All in all, these findings and conclusions appear, on their face, to have been open, and the weight to be given to them was ultimately a matter for the Tribunal. No error is apparent on the face of the Tribunal's reasons.

Conclusion

32    I therefore conclude that, although the explanation for the delay given by Mr Nguyen is adequate in the particular circumstances, it would not be in the interests of the administration of justice to grant him an extension of time to apply for judicial review. That is because no arguable ground of review has been identified, so any extension is likely to prove futile.

33    The application will be dismissed, with costs.

Associate:

Dated:    1 September 2020