Federal Court of Australia

AZS21 v Minister for Home Affairs [2021] FCA 392

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time under s 477A(2) of the Migration Act 1958 (Cth) is dismissed.

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

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an application for an extension of time under s 477A(2) of the Migration Act 1958 (Cth) (the Act) pursuant to which the applicant seeks judicial review of a decision made personally by the respondent, the Minister for Home Affairs (the Minister). By that decision, the Minister decided under s 501CA(4) of the Act not to revoke the mandatory cancellation of the applicant’s Class BC Subclass 100 Spouse visa (the visa) under s 501(3A) (CB 158).

2    If the extension of time is granted, the applicant seeks to raise two substantive issues, namely, whether the Minister erred in failing to properly consider a claim made by the applicant and in imposing an elevated evidentiary burden on the applicant. Both issues relate to the Minister’s consideration of the representation made by the applicant concerning the danger which the applicant said he would face if returned to Lebanon.

3    The Minister accepted that the proposed grounds of the application were not such that they were unarguable or completely lacking in merit (Minister’s submissions filed 1 March 2021 at [10]). Nonetheless, the Minister submitted that “the strength of those arguments, considered at an impressionistic level, does not favour the granting of the order extending time, when account is taken of the significant delay in commencing these proceedings absent a satisfactory explanation from the applicant” (ibid).

4    For the reasons set out below, the application for an extension of time should be refused.

2.    BACKGROUND

5    The applicant is a citizen of Lebanon on who arrived in Australia in the mid-1990s. He was granted a spouse visa on 6 June 2001. In 2012, the applicant was convicted by a jury in the District Court of New South Wales of sexual intercourse without consent in circumstances of aggravation. The aggravating circumstances were that the victim was under the age of 16 years, being only 13 years of age at the time of the offence. The applicant was sentenced to 9 years’ imprisonment for the offence and an appeal against conviction and an application for leave to appeal against his sentence were dismissed by the Court of Criminal Appeal (CB 24).

6    Subsequently in late 2013, the applicant was convicted in the District Court of New South Wales by a jury of several other offences involving sexual intercourse with children (including in circumstances of aggravation) and acts of indecency and aggravated indecent assault of four girls under the age of 16. He was sentenced to a further six years’ imprisonment for these additional offences.

7    On 20 June 2017, a delegate of the Minister cancelled the applicant’s visa pursuant to the mandatory cancellation provision in s 501(3A) of the Act on the grounds that the delegate was satisfied that the applicant did not pass the character test as defined in s 501(6) (conviction of one or more sexually based offences involving a child) and he was serving a full-time sentence of imprisonment in a custodial institution for the commission of offences against Australian law (CB 158). The notice of visa cancellation invited the applicant to make representations to the Minister about revoking the cancellation decision within 28 days of being taken to have received the notice.

8    On 21 June 2018, the Department of Home Affairs invited the applicant to comment on information which may be taken into account in making a decision whether to revoke the cancellation decision (CB 165).

9    On 10 July 2017, the applicant made representations to the Minister in support of the revocation of the decision to cancel his visa (CB 73). The representations were prepared by the applicant personally, apparently without the assistance of a lawyer or migration agent.

10    On 15 January 2020, the Minister, the Hon Peter Dutton MP, personally made a decision under s 501CA not to exercise the power to revoke the mandatory cancellation decision under s 501(3A) and provided a statement of reasons (CB 4 and 5–18 respectively). In so finding, the Minister gave primary consideration to the best interests of the applicant’s children and other family members and accepted that their best interests would be served by revocation of the cancellation decision. However, the Minister considered that those matters were outweighed by the very serious nature of the crimes committed by the applicant, the significant harm to which the Australian community could be exposed if the applicant reoffended in a similar fashion, and the finding that he could not rule out the possibility of further offending. The Minister concluded that the applicant represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children and other family members as a primary consideration, and other considerations.

3.    SHOULD AN EXTENSION OF TIME BE GRANTED?

3.1    Relevant principles

11    The applicant requires an extension of time within which to commence these proceedings because he failed to commence them within 35 days of the date of the migration decision as required by s 477A(1) of the Act. In support of his application for an extension of time, the applicant relied upon his affidavit sworn on 6 October 2020, save that he did not read paragraphs [3] and [4] of that affidavit (T 16/3/21 at 3.24). In that affidavit, as I explain below, the applicant sought to explain the reasons for his delay in commencing these proceedings.

12    Under s 477A(2), the Court has a discretion to make an order extending time where the Court is satisfied that it is necessary in the interests of justice to make the order. In considering whether to exercise the discretion in an applicant’s favour, the Court considers, among other things, the applicant’s reasons for delay, any prejudice that the respondent might suffer as a result of the delay, and whether the application, if an extension of time were granted, would have any prospects of success: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349 (Wilcox J) by analogy.

13    With respect to assessing the merits of an application for an extension of time, as I explained in Jamal v Secretary of Social Services [2017] FCA 916:

12    … it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess the merits in a fairly rough and ready way” (Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP (FCA) at [62]).

3.2    The length and explanation for the delay

14    The applicant filed his application to the Court on 7 October 2020, being nearly 8 months out of time. In his affidavit sworn on 6 October 2020, the applicant sought to explain the delay by reference to the extent of his distress that he may be separated from his family, the stress he experienced arising from concern that his family would have to live on their own without any financial or emotional support from him, various medical conditions and mental health issues from which he suffered, and the proximity of these issues to his release from gaol. As a result of his attempts to deal with these matters, the applicant deposed that he “forwent the thought of going after my application for appeal and was genuinely under emotional and financial distress” (at [24]). In addition, the applicant alleged that only recently had he been able to borrow money from his brother and a long term friend, following which he took all relevant steps to speak with a migration solicitor as soon as possible. I note that while he deposed that he was in the process of collating his medical documentation and that he would provide this to the court “on the earliest possible occasion”, no further evidence was provided by him in support of the medical and mental health issues. However, the Minister did not take issue with his evidence about his mental and medical health; nor did the Minister understandably take issue with the stress from which the applicant said that he was suffering.

15    The Minister did not submit that he had suffered any prejudice as a result of the applicant’s delay, although that factor is not determinative. However, the Minister nonetheless submitted that the length of the delay in this case is a significant factor weighing against the grant of leave, even though he rightly did not submit that the delay was so serious that exceptional circumstances had to be established to justify an extension of time.

16    While the applicant gave some explanation for the delay, I agree with the Minister that he has failed to give a satisfactory explanation for the length of the delay. First, the inability to obtain legal representation does not of itself explain the delay. Secondly, as the Minister submitted, it is apparent from the applicant’s evidence that his failure to institute proceedings earlier did not arise from any lack of understanding about the need to do so in a timely manner but rather represented a decision by him over a substantial period of time to give priority to other issues in his life. Thirdly, it is well-established that there is a public interest in the finality of litigation: FCFY v Minister for Home Affairs [2019] FCA 1222 at [8] (Thawley J).

3.3    The merits of the proposed application

3.3.1    Ground 1, proposed application for judicial review

17    By ground one of the proposed application for judicial review, the applicant contends that the Minister fell into error at [46] of his reasons. In that paragraph, the Minister found that:

46. I have considered [the applicant’s] claims about the danger he would face in Lebanon. However, without further substantiation of the claims I am unable to make any finding about the nature and seriousness of the harm and the likelihood of it eventuating should [the applicant] return to Lebanon

(CB 10).

18    It was common ground that if the Minister overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked, which if accepted would or could be dispositive of the decision, he may fall into jurisdictional error: Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198; (2018) 267 FCR 492 at [47] (the Court), citing Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [30] (Rangiah J). Further, as the applicant properly accepted (T 16/3/21 at 9.28–30), it was for the applicant “to put before the Minister by way of representation what it was [he] wished the Minister to take into account”: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 (Maioha) at [48] (Rares and Robertson JJ). The issue then for the Minister was whether he was satisfied that there was another reason why the original decision to cancel the visa should be revoked: Maioha at [48] (Rares and Robertson JJ). That, in turn, required the Minister to “engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request” (emphasis added): Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 (Omar) at [37] (the Court).

19    However, in the applicant’s submission, it was apparent that the Minister:

… did not genuinely, turn [his] mind to whether the claim of harm raised by the Applicant gave rise to another reason why the decision to cancel his Visa should be revoked: s.501CA(4)(b)(ii) of the Act. This is because not only did the Respondent not make any findings about whether the Applicant would be harmed in the manner claimed, [he] expressly declined to do so. As the Applicant had made representations and submissions as to why the decision to cancel his visa under s.501(3A) should be revoked, the Respondent was obliged to give genuine consideration as to whether the cancellation of his Visa should be revoked, pursuant to s.501CA(4)

(applicant’s submissions filed 12 February 2021 (AS) at [13]).

20    In other words, the applicant’s counsel, Ms Yu, submitted that the failure by the Minister to make findings about the nature and seriousness of the harm claimed, or the likelihood of it eventuating, was indicative of an absence of engagement with the representation (T 16/3/21 at 4.45–5.14).

21    Related to this, Ms Yu submitted at the hearing that the Minister ought to have considered the sufficiency of the applicant’s representations against the background in which they were prepared, namely, without any professional assistance or legal training (T 16/3/21 at 5.29–37, 17.32–36). While, with respect, not clearly articulated, it appears that the thrust of this submission was that where a person lacked the capacity to seek merits review and suffered from disadvantages such as a lack of representation, the obligation upon the Minister to consider the person’s representations was more onerous.

22    The applicant relied upon the dissenting judgment of Logan J in Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; (2019) 269 FCR 47 (Hong) in support of the latter proposition (see eg [22]–[23]). However, with respect, nothing in Logan J’s reasons suggests that it is incumbent upon the Tribunal to have regard to the circumstances in which a representation was made. Nor in any event was there any suggestion by the applicant that the majority’s reasons in Hong lent any support to the proposition that the Minister is required to have regard to the circumstances in which representations are made as a mandatory relevant consideration. To the contrary, it is well established that the focus is upon the representations themselves as a whole and the clarity with which they are expressed, as opposed to the reasons why they may have been expressed in a particular way. As the Full Court explained in Omar:

(1)    “[t]he representations made on behalf of [an applicant] in response to the invitation under s 501CA(3) are, viewed as a whole, a mandatory relevant consideration, but not every statement in the representations can be so described” (at [34(e)], emphasis added);

(2)    the significance of any particular matter raised in representations must be assessed by reference to the manner in which the matter is expressed (at [34(g)];

(3)    not every matter raised in representations is itself a mandatory relevant consideration (at [34(g)]); and

(4)    consistently with these propositions, not every representation made will require the Minister to make a specific finding of fact, but rather:

39    … Depending upon the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law (see Ezegbe v Minister for Immigration and Border Protection (2019) 164 ALD 139 … at [32]-[36] per Perram J)

(emphasis added).

23    Thus, the Full Court recently held in AXT19 v Minister for Home Affairs [2020] FCAFC 32:

56    … The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. …

24    In short, as counsel for the Minister submitted, “the nature of the obligation is to engage with the representation. It is not to engage in an assessment of why the representation is or is not in a particular form, or does or does not have a particular level of detail or specificity” (T 16/3/21 at 16.21–24). Nor, as the applicant’s counsel correctly accepted, was this a case where there had been a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). It follows that this contention has no reasonable prospects of success.

25    Secondly, the contention that the Minister overlooked or ignored a substantive representation advanced by the applicant could not reasonably succeed. The Minister expressly referred to and considered the applicant’s claim to fear harm if returned: see the Minister’s reasons at [12], [45]–[46] and [99] (CB 6, 10 and 18).

26    Thirdly, the applicant’s expressed fear of harm if returned was lacking in any clarity or details. In the revocation request form dated 10 July 2017, the applicant simply described his concerns if returned to Lebanon, and what he thought would happen to him if this occurred, in the vaguest of terms, namely:

The fear I have is that I had problems with people in [L]ebanon and they will take revenge and I don’t know what would happen because they are with the police and hisbala [sic]

(CB 82).

27    The applicant submitted that his concerns were corroborated by the letter from his partner who stated that:

[W]hen I have heard the news that he is going to be deported from Australia I was completely destroyed because I was willing to live with him wherever he goes, but I have been in Lebanon and living there is nothing easy, especially for the kids its [sic] too dangerous for them, and I as an Australian-born, and raised in my beautiful country called Australia

(CB 108).

28    However, the concerns expressed by the applicant’s partner add no greater certainty or clarity to his vaguely expressed fear of harm and are, in any event, concerned with the dangers which her children might face if returned, rather the applicant. In those circumstances, where no clearly articulated and substantial representation of a risk of harm was made, there was no obligation upon the Minister to make specific findings of fact on whether the feared harm was likely to eventuate. As the principles articulated in Omar make clear, there is no “blanket requirement” for findings to be made because in some cases, such as the present, the absence of detail in the representations may not permit them to be made.

29    In those circumstances and applying the principles to which I have referred, the contention that the Minister fell into jurisdictional error in concluding that he was unable to make any findings about the nature and seriousness of the harm and the likelihood of it eventuating, could not reasonably succeed.

3.3.2    Ground 2, proposed application for judicial review

30    Ground 2 of the proposed application for judicial review as explained in the applicant’s submissions raises the following question: whether the Minister imposed a “higher” or “artificial evidentiary burden” on the applicant which was not imposed by the Act in reaching the view at [46] that he was unable to make any findings about the applicant’s claims of potential harm in Lebanon “without further substantiation of the claims” (AS at [15]). In so doing, the applicant contended that the Minister made an error of law and asked himself the wrong question (citing Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211; (2005) 143 FCR 204 at [47] and [51]–[54] (Crennan J) by analogy).

31    Again, the ground has no reasonable prospects of success. The Minister did not impose an elevated duty on the applicant to substantiate his claims. Rather, having afforded the applicant the opportunity to make representations, the Minister then considered this and his other representations on the basis of the material which the applicant put forward. As I have earlier held, in the absence of any elaboration by the applicant upon his claimed fear of harm, it was open to the Minister, if not inevitable, to conclude that he was unable to make any findings as to the nature and seriousness of the harm and likelihood of it eventuating if the applicant were returned.

4.    CONCLUSION

32    Given the length of the delay, the lack of any adequate explanation for the whole of the delay, and the lack of merit in the proposed grounds of the application for judicial review, the interests of justice would not be served by granting the extension of time. Accordingly, the application is dismissed with costs.

Associate:

Dated:    20 April 2021