Federal Court of Australia

QSBL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 78

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of the application, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant is a South Sudanese national. He arrived in Australia in September 1998 as the recipient of a Class BA subclass 202 – Global Special Humanitarian visa (hereafter, the “Visa”), which was issued to him under the Migration Act 1958 (Cth) (hereafter, the “Act”). He was then aged 17 and was a citizen of Sudan (South Sudan having not yet seceded).

2    In August 2010, the applicant was sentenced to 12 months’ imprisonment for aggravated assault. That sentence was wholly suspended. In January 2017, he was sentenced to six months’ imprisonment for unlawful assault occasioning bodily harm and related offences. Those convictions prompted the cancellation of his Visa under s 501(3A) of the Act (hereafter, “the Cancellation”).

3    By a document dated 15 February 2017, the applicant requested the first respondent (hereafter, the “Minister”) to revoke the Cancellation (hereafter, the “Revocation Request”). On 6 April 2018, a delegate of the Minister declined the Revocation Request. The applicant then sought to have that decision (hereafter, the “Delegate’s Decision”) reviewed by the second respondent (hereafter, “the Tribunal”). That application (hereafter, the “Review Application”) also failed: on 2 July 2018, the Tribunal affirmed the Delegate’s Decision not to revoke the Cancellation (that decision is referred to, hereafter, as the “Tribunal’s Decision”).

4    By an application to this court dated 8 September 2020, the applicant seeks an extension of time to apply for judicial review of the Tribunal’s Decision. The bases upon which he contends that an extension should be granted are explored in detail below. At its core, the applicant’s submission is that the Tribunal’s Decision was a product of jurisdictional error.

5    For the reasons that follow, the application for an extension of time will be dismissed with the usual order as to costs.

Legislative framework

6    Section 501 of the Act identifies circumstances in which the Minister may—and, in some cases, must—cancel a visa on character grounds. Relevantly, it provides as follows:

501     Refusal or cancellation of visa on character grounds

…

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

…

    Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7))…

…

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more…

7    Under s 501CA of the Act, a non-citizen whose visa has been cancelled under s 501(3A) of the Act may apply for the revocation of that decision. The provision relevantly provides as follows:

501CA    Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

 (3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

 (4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

  (b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

…

8    In the present matter, there was no contest that the applicant made representations of the sort contemplated by s 501CA(4)(a) of the Act (in the form of the Revocation Request). Likewise, it is not in contest that the applicant did (and does) not pass the “character test” to which s 501CA(4)(b)(i) of the Act refers. At issue before the Tribunal (and, prior to that, the Minister’s delegate) was whether there was “another reason” under s 501CA(4)(b)(ii) of the Act why the Cancellation ought to have been revoked.

9    Section 496 of the Act permits the Minister to delegate his or her powers under the Act, including the power for which s 501CA(4) of the Act provides. Section 500(1) of the Act confers jurisdiction on the Tribunal to hear applications for the review of decisions made by delegates of the Minister under s 501CA(4).

10    This court has jurisdiction to hear applications for judicial review of such decisions: the Act, s 476A(1)(b). Such applications must be made to the court within 35 days of the decision in question: s 477A(1). Section 477A(2) provides for the circumstances in which the court might extend that deadline:

(2)    The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:

(a)    an application for that order 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.

…

The Revocation Request and the Tribunal’s decision

11    The applicant’s revocation request was multi-dimensional. Relevant for present purposes was his contention that, if removed from Australia, the applicant was at risk of subjection to harm. That risk was also said to be multi-faceted. In part, it was said to arise from the prevalence of generalised violence in Sudan (to where the applicant feared that he would be returned); and, in part, because of factors peculiar to the applicant, including his diagnosed mental health condition (the applicant suffers from schizophrenia) and the likelihood that it would go untreated (or improperly or insufficiently treated) in Sudan. Those circumstances, individually or collectively, were said to constitute (or partly-constitute) “another reason” for which it was appropriate to revoke the Cancellation under s 501CA(4).

12    The Tribunal did not accept that contention. In affirming the Delegate’s Decision, it considered the prospects that the applicant might be subjected to the risks of harm that he had identified. Those risks, it is to be recalled, arose from the prospect of his being returned to Sudan, which is where the applicant claimed to be from. The Tribunal accepted that the applicant would face certain risks if he were returned to Sudan. It did not, however, accept that those prospects were sufficient, individually or collectively, to constitute “another reason” warranting the revocation of the Cancellation.

13    Subsequently, the applicant has learned that he is, in fact, not Sudanese. It is not in contest that, upon (or after) its creation in 2011—and by operation of laws enacted by its legislature—the applicant became a citizen of South Sudan. At the time that he made his Review Application—and at the time of the Tribunal’s Decision—the applicant was unaware of that reality.

Delay in challenging the Tribunal’s Decision

14    Other than to understand that his Review Application had failed, the applicant did not closely consider the Tribunal’s Decision when it was handed down. He did not make any attempt to challenge it until September 2020, more than two years after it was published.

15    Instead, the applicant decided to apply for a protection visa under the Act. That application was made in September 2018 (nearly three months after the Tribunal’s Decision was published). As with his Review Application, the applicant’s application for a protection visa proceeded upon the premise that it was not safe for him to be removed from Australia. However, it appears that the applicant had, by (or around) that point in time, learned that he was no longer a citizen of Sudan. For the purposes of advancing his protection visa application, he noted that he had been born in Juba (which is in what is now South Sudan) and that he believed that he was a citizen of South Sudan (although I pause to note that it is not clear whether he understood the geopolitical distinction between Sudan and South Sudan). That was accepted and the applicant’s application for a protection visa was assessed accordingly.

16    On 8 April 2020, a delegate of the Minister refused the applicant’s protection visa application. The delegate accepted that, on account of his mental illness, the applicant faced a real chance of persecution in all parts of South Sudan; and also that he faced a real prospect of subjection to significant harm if returned to South Sudan. Nonetheless, the delegate declined the applicant’s protection visa application on the basis that the applicant did not meet the character requirements upon the satisfaction of which the grant of such visas depends (see the Act, s 36(1C)).

Principles applicable to extensions of time

17    The considerations relevant to the exercise of the court’s discretion to grant an extension of time in cases such as the present are well established. In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 (Perram, Farrell and Perry JJ), the Full Court, at [20], listed them as follows:

(1)    An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.

(2)    The length of the delay is a relevant factor.

(3)    The appellant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.

(4)    Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.

(5)    The merits of the substantive appeal, if leave were granted, are properly to be taken into account.

(see also: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86, [6] (Flick, Griffiths and Perry JJ); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-349 (Wilcox J); SZSPR v Minister for Immigration & Border Protection and Another (2013) 139 ALD 109, 113 [16] (Farrell J); BAO15 v Minister for Immigration and Border Protection (2016) 151 ALD 352, 356 [19] (Perry J); SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91, [18]-[19] (Murphy J); BYY15 v Minister for Immigration and Border Protection [2018] FCA 116, [12] (Steward J).

18    Consideration of the merits of the substantive appeal, should an extension of time be granted, does not require detailed analysis of the grounds upon which it is proposed that the appeal might proceed. It is sufficient that the court form a “reasonably impressionistic” assessment of their prospects: MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478, 486 [38] (Tracey, Perry and Charlesworth JJ).

The delay

19    There is no doubting—and it was not in contest—that the applicant’s delay in filing an application in this court was significant. The present application was filed more than two years after the deadline for which s 477A(1) of the Act provides. The Minister, properly enough, conceded that the delay would not visit upon him any relevant prejudice in the event that an extension were granted. Nonetheless, the grant of an extension will potentially (if not obviously) visit at least some prejudice upon the prompt administration of justice and the aspiration of finality in administrative decision making. The prejudice to the applicant that would flow in consequence of any decision not to grant an extension is plainly significant.

20    By way of explanation for the delay, the applicant submits that he did not know that the Tribunal’s Decision could be judicially reviewed in this court. Moreover, he says, it was not until many months after the expiry of the deadline for commencing such a review that he learned of his true nationality (he was unable to pinpoint precisely when it was that he became aware of his South Sudanese nationality, although he was aware that it was at some point between October 2018, when he was interviewed in connection with his protection visa application, and April 2020, when that protection visa application was declined).

21    By the written submissions advanced on his client’s behalf, the applicant’s counsel contended that:

…the Applicant suffers from schizophrenia. He has described feeling confused and unsure at numerous stages in the procedural history of this matter. His medical records reveal that more than once between July 2018 and September 2020 his psychotic symptoms have relapsed. It should be inferred that the Applicant’s psychiatric illness also affected his capacity to seek legal assistance and/or his capacity to apply to the Court without assistance.

22    Although it is possible (and maybe even likely) that the applicant’s mental condition played some role in his failing to take steps to challenge the Tribunal’s Decision more promptly than he did, other less excusable explanations are equally plausible. It is to be recalled that that condition did not prevent the applicant from taking other steps to remain in Australia (most notably in the form of his protection visa application). Respectfully, it is not appropriate to draw the inference that the court is invited to draw.

23    I do, however, accept (particularly in the absence of challenge) the applicant’s evidence that he was initially unaware that it was open to him to challenge the Tribunal’s Decision and that he remained so until well after the deadline for challenging it had expired. I also accept that the applicant was unaware as to his true nationality until sometime after that deadline had expired. There is, as the Minister submitted, at least some cause in the evidence to wonder whether the applicant was aware of his South Sudanese nationality by at least the time of his protection visa interview (in October 2018). During that interview, he appeared to suggest (and later to accept)—albeit after being led in that direction—that he was a citizen of South Sudan. He also appeared to acknowledge that he had, at some point, voluntarily requested that he be removed to South Sudan. What he in fact understood as to his nationality was not established with quite the clarity that would have been ideal (a point that I note in criticism of nobody); but, in the absence of any challenge to it, I am inclined to accept the evidence that the applicant gave (namely, that he was not aware of his South Sudanese nationality until some point after his protection visa interview).

24    The question that presently arises for consideration is whether the applicant can identify a reasonable explanation for the delay attending his application to this court. Without conceding anything, the Minister submits that, even if the applicant might be able to attribute some period of delay to ignorance, the circumstances are insufficient to justify the very extended period of delay that in fact transpired. He invited the court to infer, in part on the assumption that the applicant knew that he was not (or had cause to question whether he was) Sudanese from as early as October 2018, that the real reason for his subsequent inaction was that he wished to see whether he would be granted a protection visa.

25    I accept that the applicant’s explanation for the delay is not without at least some basis in reason. Plainly, it would have been better if, upon learning of his true nationality (or even of the possibility that he might not have been Sudanese), he had more promptly sought advice upon what, if anything, might have been done about the Tribunal’s decision. That acknowledged, I do not draw the inference that the Minister invites me to draw. The explanation that he posits (namely, that the delay is explained by a desire, on the applicant’s part, to see how his protection visa application would play out) might well be true; but there are other, equally plausible explanations (as well as the applicant’s direct evidence) that make that inference unsafe to draw.

26    The core reason for the delay was the applicant’s ignorance that he could make the application in respect of which he now seeks an extension of time. It was not until (or, perhaps, shortly after) May 2020, when he spoke with a solicitor at Victoria Legal Aid, that he came to understand that the Tribunal “…may have made a mistake with [his] case”. Ignorance is, it might be said, not the most acceptable of explanations for the delay that occurred; but, equally, it is not inexcusable given the applicant’s circumstances.

Merits of the proposed ground of challenge

27    By the draft originating application that he proposes to file if granted an extension of time to do so, the applicant mounts a single ground of challenge against the Tribunal’s Decision, namely that:

In purporting to discharge its function, the Tribunal constructively failed to exercise its jurisdiction by its failure to consider the Applicant’s request for revocation of the cancellation of his Global Special Humanitarian visa against the correct country of nationality and/or country to which the Applicant would be returned.

28    By the written submissions advanced on his behalf, the applicant elaborated upon that ground as follows:

The proposed ground is put in two overlapping ways: [f]irst, the Tribunal failed to consider the Applicant’s claims that he would be harmed on return to his country of nationality to the relevant legal standard; [and] second, the Tribunal failed to make an obvious enquiry about the Applicant’s nationality, a fact which was of central criticality to the outcome of the review.

29    Two things should be recalled from the factual summary recited earlier: first, that the applicant’s Revocation Request proceeded upon the basis that “another reason” for which the Minister ought to revoke the Cancellation was that it was not safe for the applicant to be returned to Sudan; and, second, that the applicant was not, in fact, Sudanese (and had mistakenly stated that he was).

30    With those circumstances recalled, the first of the two overlapping ways in which the applicant’s proposed challenge is framed can swiftly be addressed. It is not in doubt that the Tribunal was obliged to consider the claims that the applicant advanced as to why the Cancellation ought to be revoked: Minister for Home Affairs v Omar (2019) 272 FCR 589, 602-604 [34] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); DQM18 v Minister for Home Affairs [2020] FCAFC 110, [23]-[34] (Bromberg and Mortimer JJ), [153]-[158] (Snaden J); Navoto v Minister for Home Affairs [2019] FCAFC 135, [86]-[89] (Middleton, Moshinsky and Anderson JJ); Minister for Home Affairs v Buadromo (2018) 267 FCR 320, 332 [42] (Besanko, Barker and Bromwich JJ). But equally, the Tribunal was not required to consider, as a reason in favour of revocation, a circumstance that the applicant in fact did not put: Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523, 547-548 [79]-[80] (Robertson, Moshinsky and Bromwich JJ); Minister for Immigration and Citizenship v Le (2007) 164 FCR 151, 172 [60] (Kenny J). A claim that emerges from an applicant’s submissions only with the assistance of “constructive or creative activity” on the part of a decision-maker is not one of which consideration is mandatory: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1, 19 [58] (Black CJ, French and Selway JJ).

31    The applicant identified himself as Sudanese and claimed that the risk or risks to which he would be subjected if returned to Sudan were “another reason” (or reasons) why his Cancellation ought to be revoked. Those contentions—mistaken though they were—were, on any view, considered and addressed. The mistake was not of the Tribunal’s making: it considered what it was asked to consider. There was no jurisdictional error in its doing so.

32    Attention should then turn to the second of the two overlapping ways in which the applicant grounds the challenge that he seeks to make. He maintains that the Tribunal ought to have realised his error: that it ought to have been apparent that, contrary to what he submitted, the applicant was not Sudanese and was not at risk of being returned to Sudan. Had that reality been identified, the Tribunal would have invited further submission from the applicant about any concerns that he might have had about being returned to South Sudan, which it would then have assessed in the usual way (and, more particularly, by considering whether they gave rise, by themselves or in combination with other factors, to “another reason [or reasons]” for the purposes of s 501CA(4)(b)(ii) of the Act). The applicant submits that, had those events transpired, the Tribunal might well have decided the Review Application differently.

33    At issue presently, then, is whether the Tribunal was obliged to recognise and correct the applicant’s error. In urging the court to answer that question in the affirmative (or, in the context of the immediate application, to find that there is a sufficient prospect of an affirmative answer), the applicant relied upon the following observations of the majority (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, 1129 [25]:

…The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error…

(emphasis added)

34    There are authorities in this court that recognise that same obligation: Ashraf v Minister for Immigration and Border Protection (2018) 261 FCR 97, 115 [56]-[57] (Tracey, Mortimer and Moshinsky JJ); Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] FCA 985, [53] (Mortimer J).

35    Here, the applicant submits that the Tribunal’s obligation to incorporate into the discharge of its review function an inquiry as to his true nationality arose from evidence that he gave about his place of birth and the fact that, as he testified, he “[didn’t] know anything about Sudan”. In his Revocation Request, the applicant noted that he was born in “Juba Sudan”. In 1981, when the applicant was born, Juba was a city of Sudan. It is now the capital of South Sudan. It should, the applicant submits, have been apparent to the Tribunal that his nationality was not beyond question; and that ought, he says, to have inspired the Tribunal to make further inquiries on that front in the proper discharge of its statutory review function. If that is so, the Tribunal’s failure to make those inquiries would amount to a failure to discharge the function that it was required to discharge; and its ultimate decision not to revoke the Cancellation would be amenable to prerogative relief as the product of jurisdictional error.

36    The fact that the applicant was born in Juba was not something that ought to have prompted the Tribunal to question or disbelieve what he said about being Sudanese. It was common ground between the parties (and the court was taken to legislation that reflected the fact) that South Sudanese citizenship was not dependent upon, or even a function of, a person’s having been born in what is now South Sudan. Similarly, the applicant’s statement that he didn’t know anything about Sudan was not sufficient to warrant the Tribunal’s forming the view that he might mistakenly have nominated Sudan as his country of citizenship. It is one thing to disclaim a lack of knowledge about one’s country of citizenship; quite another to suggest that there might be some confusion about which country that is.

37    Those things having been said, I do not accept that it ought to have been obvious to the Tribunal that, despite his evidence, the applicant’s nationality was a matter that required further inquiry, nor that the Tribunal’s failure to embark upon that inquiry bespeaks any want of compliance with its statutory charter. With respect, the applicant’s prospects of successfully agitating his proposed challenge to the Tribunal’s Decision are poor.

Conclusion

38    In light of what is set out above, I am not satisfied that it is necessary in the interests of the administration of justice to grant the applicant an extension of time as he seeks. His explanation for the lengthy delay in filing the present application, though not unacceptable, is nonetheless not especially powerful; and, although the prejudice that he will suffer in the absence of an extension outweighs what the Minister would endure if one were granted, the applicant’s prospects of succeeding in his challenge to the Tribunal’s Decision are weak.

39    The application will, therefore, be dismissed with the usual order as to costs.

Associate:

Dated:    10 February 2021