Federal Court of Australia

WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time in which to apply for judicial review filed on 7 January 2021 is dismissed.

2.    The application for judicial review filed on 6 April 2021 is dismissed.

3.    The applicant pay the first respondent’s costs of the application for an extension of time and the costs of the application for review.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    The substantive application before the Court seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 15 October 2018 which affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) not to revoke a cancellation decision made under s 501(3A) of the Migration Act 1958 (Cth) (the Act) in respect of a visa held by the applicant. The time stipulated for seeking review of the Tribunal’s decision as of right expired some two years and two months before these proceedings were commenced. Accordingly, in order to prosecute his application for review, the applicant filed an application seeking an extension of time which was heard at the same time as the substantive application.

2    In this case, the extreme delay in filing the application for judicial review and the application for an extension of time was not adequately explained to the Court. The applicant, his de facto partner, and their son departed Australia for New Zealand after the Tribunal’s decision, but it appears that his partner and son no longer enjoy living there and wish to return. The inadequacy of the explanation for the very significant delay weighs heavily against exercising the power to extend time for bringing the application for review. Further, the grounds of review which the applicant seeks to agitate by that application are of limited merit. In those circumstances, the application for an extension of time should be dismissed, and it follows that the application for review must also be dismissed.

Background

3    The applicant is a citizen of New Zealand who was born in September 1988. He first arrived in Australia in January 1999 when he was approximately 10 years old.

4    There is relatively little information concerning his family life after arriving in Australia. What is clear is that, from between January 2005 and September 2017, he amassed a substantial and serious criminal record. He also accumulated a not insignificant number of driving offences to the extent that he was twice declared a “habitual offender”. There is no need to set out here the nature and extent of the applicant’s traffic and criminal record in any detail. However, that ought not to diminish its evident importance to the Tribunal’s reasoning and, in particular, the significant weight which it properly accorded to the primary considerations of the protection of the Australian community from criminal or other serious conduct and of the expectations of the Australian community.

5    A particular aspect of the applicant’s criminal record is his history of violence, especially towards his partner, who will be referred to in these reasons as Ms L. On 19 March 2015, he was convicted of “common assault (DV)” and “contravene prohibition/restriction in AVO (domestic)” and was sentenced to 12 months imprisonment for each offence although the sentences were subsequently suspended.

6    On 1 September 2017, he was convicted of “drive motor vehicle during disqualification period – 2nd + off” and was sentenced to six months imprisonment. No doubt the prison sentence was imposed as a result of his many prior convictions for similar offences.

7    On 3 October 2017, a delegate of the Minister cancelled his visa pursuant to s 501(3A) of the Act. The delegate was necessarily satisfied that he had failed the character test by reason of his previous sentence to a term of imprisonment of 12 months for common assault and that, at the time of the decision, he was serving a further sentence of imprisonment on a full-time basis as a result of the driving offences.

8    Pursuant to an invitation issued to the applicant under s 501CA(3)(b) of the Act to make representations about the cancellation of his visa, in around October 2017, he requested that the Minister revoke the cancellation decision pursuant to the power in s 501CA(4).

9    On 23 July 2018, a delegate of the Minister concluded they were not satisfied that there was another reason why the cancellation decision should be revoked and, accordingly, the power in s 501CA(4) was not enlivened and the cancellation decision was not revoked.

10    On about 24 July 2018, the applicant applied to the Tribunal for review of the delegate’s decision not to revoke the cancellation decision. On 15 October 2018, the Tribunal affirmed the delegate’s decision following a hearing on 4 October 2018 which the applicant attended and at which Ms L gave evidence in support of the revocation of the cancellation decision.

The Tribunal’s decision

11    It was not in dispute before the Tribunal that the applicant had a “substantial criminal record” for the purposes of s 501(7) of the Act such that he failed the “character test” for the purposes of s 501(6). The main question dealt with by the Tribunal was whether there was “another reason” for the purposes of s 501CA(4) why the cancellation decision should be revoked.

12    It observed that it was required to comply with Direction No. 65 and identified those aspects which were relevant to the issues before it.

13    The Tribunal first turned its attention to the primary consideration under Direction No. 65 of the “Protection of the Australian community” from criminal or other serious conduct. In that respect, it observed the nature and seriousness of applicant’s criminal conduct over a period of 10 years from about 2005. It identified some of his more significant offences which included common assault, common assault (domestic violence), contravention of an apprehended violence order, robbery in company, and drug possession. It specifically identified the more recent offences of common assault (domestic violence) and contravene prohibition/restriction in AVO (domestic) for which the applicant was sentenced to 12 months imprisonment, although it was observed that, on appeal, the sentence was varied to a suspended sentence.

14    The Tribunal also noted that, within two years of the applicant’s sentence being suspended, he was again convicted of driving whilst disqualified and sentenced to six months imprisonment. It observed that terms of imprisonment are a last resort in the sentencing hierarchy and his sentencing to imprisonment must, obviously, reflect the severity of the offences involved and the applicant’s criminal history. Consequently, it viewed the applicant’s criminal conduct generally to be very serious and the recidivist nature of it to be alarming. It subsequently observed that despite many warnings he had continued to reoffend, leading it to the conclusion that he plainly had no regard for the laws of Australia.

15    Overall, the Tribunal concluded that there remained a real risk of the applicant reoffending were he to return to the Australian community: at [34]. It was not convinced that any risk, particularly in relation to criminal conduct involving domestic violence-related assault, was acceptable. As a result, the primary consideration of “Protection of the Australian community” was found to weigh heavily against revoking the cancellation decision.

16    The Tribunal then turned its attention to the primary consideration of the “Best interests of minor children in Australia affected by the decision”. It noted that this consideration only applied in relation to the son of applicant and Ms L, given that he had no parental responsibility for his cousins, nieces, and nephews, and was unlikely to play any positive parental role in their lives. It further noted that he continued to see his son whilst in prison and that the son suffers from asthma, ADHD, and learning difficulties. It specifically referred to the applicant’s claim that he was required to cover his son’s medical bills which were said to include occupational therapy, speech therapy, psychology, and paediatric appointments on a regular basis as well as medication. In relation to this, the Tribunal observed (at [38]):

There is however very limited medical evidence available in these proceedings to support the claims surrounding the applicant’s son’s medical needs.

17    In this respect, it concluded that there was limited evidence to suggest that the applicant’s removal from Australia would prohibit him from financially supporting his son or Ms L.

18    Ms L gave evidence surrounding her son’s medical conditions and his difficulties at school. She said also that, when the applicant was home, he supported her when she was sick, helped around the house, and helped with their son. She added that her son loves his father and they have a great “father and son” bond and that since the applicant had been absent her son cries about his father and does not understand what is going on. The Tribunal also found that other members of the extended family assisted in raising the applicant’s son and could provide parental care and support.

19    The Tribunal concluded that it was questionable whether the applicant would play a positive role in his son’s life given his extensive criminal history and demonstrated lack of regard for the laws in Australia: at [43]. Similarly, it identified that the domestic violence and assault charges were significant and no child should ever be at risk of being exposed to violence. In relation to the weight which might be given to this consideration, the Tribunal said:

44.    Having carefully considered all of the factors relevant to this primary consideration, I accept that the best interests of the applicant’s son may be served by the cancellation decision being revoked. This would allow for the possibility of face-to-face contact with his father and would allow the applicant to be physically present in his son’s life to provide assistance, financially and otherwise, with his medical needs.

45.    This primary consideration weighs in favour of revocation; however, having regard to all of the relevant factors, this consideration is outweighed by the other primary considerations.

20    The Tribunal also concluded that the expectations of the Australian community were that the applicant should be denied the opportunity to remain in Australia on the basis that any tolerance towards him had expired: at [52]. This consideration weighed heavily against revocation of the cancellation decision: at [67].

21    It then considered the relevant “Other considerations” in Direction No. 65. It accepted that the applicant had strong family ties to Australia where his parents and sibling resided, and accepted that they would be negatively affected if he were removed. Similarly, it concluded that Ms L would be impacted by his departure, particularly emotionally and financially, and it referred to the evidence that, without the applicant’s assistance, she has struggled to obtain shelter, food, and clothes for herself and her son, and that she claimed she would not move to New Zealand or be able to afford to visit the applicant there.

22    Ultimately, however, the Tribunal concluded that the two primary considerations of the protection and expectations of the Australian community weighed heavily against revocation of the cancellation decision and outweighed any considerations favouring revocation: at [67]. It followed that the delegate’s decision not to revoke the cancellation decision was affirmed.

Events following the Tribunal’s decision

23    From the evidence adduced on the application for an extension of time, it appears that the applicant returned to New Zealand following the Tribunal’s decision and has remained there.

24    Ms L deposed that, on or about 14 August 2019, she and the applicant’s son moved to New Zealand to reunite with the applicant. She claimed that she was not able to survive in Australia without his support. Ms L also deposed that her son has informed her that he does not like New Zealand and would love to return to Australia to continue his education and extracurricular activities. She also deposed that, until she obtained a job in October 2019, she was not able to afford to engage lawyers in order to seek review of the Tribunal’s decision. This was proffered as an explanation for the applicant’s delay in bringing these proceedings.

25    The applicant, himself, has not sought to adduce any evidence as to his impecuniosity or the financial resources on which he might have drawn for the purposes of seeking review of the Tribunal’s decision. He does not say that he did not have family members who might have assisted. He also did not say that he was unable to obtain employment in New Zealand and was therefore unable to prosecute his application sooner. In brief, there is a dearth of evidence which might support the conclusion that he lacked the financial means to make the application to this Court either within time or at an earlier time than he did.

Application for an extension of time

26    The decision of the Tribunal refusing to revoke the cancellation decision was made on 15 October 2018. The period in which the applicant could, as of right, bring an application for judicial review of that decision expired 35 days thereafter, being on 19 November 2018: see s 477A(1) of the Act.

27    It is undoubtedly the case that the delay in making the application for an extension of time in this case is extreme, and the applicant by his Counsel did not contend to the contrary at the hearing. The application for an extension of time was not filed until 7 January 2021. That was a delay of 780 days, being approximately two years and two months, after the date on which the right seek review expired. The Originating Application for judicial review was not filed until 6 April 2021, although it is to be acknowledged that in accordance with orders made on 22 February 2021 the applicant was only directed to do this by 5 April 2021.

28    It is neither necessary nor useful to seek to exhaustively define the circumstances in which an order will be made granting an extension of time pursuant to s 477A(2). A number of considerations are generally relevant to the exercise of the discretion, including the length of the delay, the nature of any explanation for the delay, whether the other party will suffer any prejudice by the extension of time, the prejudice to the applicant if time is not extended, and whether the proposed grounds of review have sufficient merits to warrant extending time: see e.g. Rere v Minister for Immigration and Border Protection [2018] FCA 846 [16] – [17] and the cases there cited. Those considerations inform whether, for the purposes of s 477A(2), it is in the interests of the administration of justice to make an order extending the time for making the application for review.

The length of time

29    The present case falls into that unusual category of case where the extension of time sought is significant as a result of the delay in making the application being of an extreme nature. This removes it from the usual circumstances where the delay is relatively minor, being in the nature of days, a few weeks or, perhaps, a month. In that latter category of case, the merits of the grounds sought to be agitated on the substantive application are generally given relatively greater importance. Here, the Minister’s primary submission was that the delay was so inordinate that, when coupled with the absence of a satisfactory explanation, the Court would be justified in refusing to extend time on that basis alone, irrespective of the merits of the proposed grounds of review.

30    In particular, Mr Swan for the Minister referred to Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89 (Vella) where Gageler J considered the operation of s 486A(2) of the Act, a cognate provision to s 477A(2), in the context of a 16 month delay. His Honour observed that, given the length of the extension sought, he would only be satisfied that the making of an order extending time would be in the interests of the administration of justice where the applicant’s case is “exceptional”: at 90 [3]. In making that observation, his Honour referred to the observations of McHugh J in Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 (Ex parte Marks). There, his Honour concluded that the case sought to be advanced if an extension were to be granted would need to be demonstrated to be exceptional before the time for commencing proceedings would be enlarged by many months: at 473 – 474 [13]. Indeed, in the context of an applicant who, being aware of a decision, delayed 17 months before seeking relief, his Honour observed that it was difficult to see how they could ever be granted an extension of time unless some conduct of the public body or official had brought about the delay: at 474 [16]. Those two authorities were recently applied by Gordon J in Salum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCATrans 51. In that case, in the absence of a satisfactory explanation for the extraordinary delay of five years and where the applicant had failed to demonstrate an exceptional case warranting such an enlargement of time, the application for an extension of time and the substantive application were dismissed. See also EQJ17 v Minister for Home Affairs [2020] FCA 33 at [38] per Perry J citing Vella and Ex parte Marks.

31    Mr Poynder for the applicant accepted that courts had referred to the requirement that an “exceptional” case be shown in instances of extreme delay, but submitted that in most of those cases the applicant was prevented from obtaining relief primarily due to their inability to demonstrate that the substantive action had any relevant merits. This may have been intended to suggest that it was not truly necessary to demonstrate an “exceptional” case or that this requirement was merely the subject of “considered obiter”. However, where there has been inordinate delay and that consideration weighs so heavily against an extension of time being granted, it must necessarily follows that the applicant must demonstrate something exceptional or out of the ordinary in the circumstances of the case to provide a countervailing justification for extending time. In that regard, each of the cases referred to above identifies the need for the applicant to demonstrate, at least, that the case sought to be advanced is “exceptional” in terms of its merits. In the context of a broad discretion, it may not be appropriate to describe this as a strict requirement, but it would be difficult to demonstrate that circumstances are sufficiently exceptional to warrant a lengthy extension of time if the case sought to be advanced were not “exceptional”.

32    Finally, it must be noted that some support for the position advanced by Mr Poynder might be derived from Gibson v Minister for Home Affairs [2020] HCATrans 46 (Gibson). That was a case in which Edelman J extended time by more than nine months on the basis that the applicant had demonstrated the presence of “exceptional circumstances”. In particular, his Honour found that there was a “cogent and compelling explanation” for most of the delay, being the applicant’s prosecution of other review proceedings which were later found to be inutile for reasons that were neither known nor reasonably discoverable to the applicant. As to the substantive application, his Honour referred to the need to show that it had “sufficient merit” and later concluded that “the plaintiff’s submissions [were] sufficiently arguable in the circumstances” to justify the required extension of time.

33    If a nine month delay is to be considered “inordinate”, the making of an order extending time in Gibson might be taken to support the argument that it is not strictly necessary to demonstrate that the case sought to be advanced is “exceptional”, provided the case is at least “sufficiently arguable” and there is an adequate explanation for the delay. It is unnecessary to reach a conclusion on this point in this case. Here, for the reasons explained below, the applicant has failed to provide an adequate explanation for the delay and has also failed to demonstrate any exceptional merits of his case. In that case, he has failed to demonstrate that there are “exceptional circumstances” warranting the making of an order granting the requisite extension of the time for bringing the application for review.

No adequate explanation for the delay

34    Closely allied to the consideration of the length of delay is whether any adequate explanation for it has been proffered. As mentioned, the applicant in this case did not file any affidavit of his own explaining why he waited for some 26 months before filing an application for an extension of time. An affidavit by Ms L was filed, although it is in the vaguest of terms. It is to the effect that, in around November 2018, neither she nor the applicant were in a financial position to obtain legal assistance to seek review of the Tribunal’s decision. However, very little more than that is said. Ms L exhibited to her affidavit her bank statements from 13 October 2019 to 12 February 2020 which reveal a relatively modest income during that period. As Mr Swan for the Minister submitted, there were gaps in the evidence as to Ms L’s financial position during the period between October 2018 and January 2021. In particular, there was no real evidence as to her financial position in respect of the period from 13 February 2020 until January 2021 when the application for an extension of time was filed. This gap is significant where there is evidence before the Court that Ms L was in full-time employment from around October 2019.

35    There is no also mention in Ms L’s affidavit of the applicant’s income or his circumstances. It is not known whether he was in employment after he returned to New Zealand in 2018, or what was the state of his financial position in the period to January 2021. The evidence discloses that both he and Ms L have an extended family and there was nothing in the material to suggest that they were unable or unwilling to assist them with the cost of seeking review of the Tribunal’s decision.

36    Although Mr Poynder submitted that Ms L was not cross-examined as to the extent of the financial resources of herself and the applicant, it is the applicant who must satisfy the Court that it is in the interests of the administration of justice for time to be extended. The evidence adduced to the Court falls well short of establishing that the applicant could not, at a time before January 2021, afford to obtain legal assistance in relation to challenging the Tribunal’s decision.

37    In addition, it is well established that the inability to obtain legal advice or representation does not, of itself, provide a sufficient explanation for delay: Tran v Minister for Immigration and Border Protection [2014] FCA 533 [35]; AZS21 v Minister for Home Affairs [2021] FCA 392 [16]. Even so, the applicant did not establish that impecuniosity prevented him from seeking review of the Tribunal’s decision sooner than he did. Importantly, no evidence was given as to the costs of doing so such that it might be demonstrated that commencing proceedings was beyond his means. It is appropriate, as the Minister submitted, to take account of the fact that impecunious litigants often commence applications in this Court for review of decisions of the Tribunal within the period limited by statute.

38    Further, it is apparent from the applicant’s material that the failure to institute proceedings before January 2021 did not arise from any lack of understanding as to the requirements to do so. Rather, Ms L’s affidavit tends to suggest that the applicant made the forensic decision to accept the Tribunal’s decision and move to New Zealand with his family. However, as Ms L’s affidavit suggests, both she and her son are no longer content to remain there and this seems to have prompted the making of the current applications.

39    It follows that no adequate explanation has been given for the delay in commencing these proceedings. The absence of such an explanation for a delay of some 26 months makes it extremely difficult for the applicant to establish any sound basis from which it could be concluded that it is in the interests of the administration of justice to extend time: Ex parte Marks at 474 [16].

Prejudice

40    The Minister acknowledged that he would not suffer any specific prejudice if an extension of time were to be granted in this particular case. However, it is well established that the absence of such prejudice is not, of itself, sufficient to warrant extending time: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 [6].

41    There exists a clear public interest in the prompt disposition of administrative matters and, in particular, of allegations that officers of the Commonwealth have acted in excess of their jurisdiction: MZABO v Minister for Immigration and Border Protection [2016] FCA 980 [5]. In Ex parte Marks, McHugh J said in relation to proceedings in which prerogative writs were sought (at 474 [15]):

[T]he public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

42    More specifically, the Minister has a legitimate interest in the timely disposal of applications for visas and decisions concerning the cancellation of visas: Sun v Minister for Immigration and Border Protection (2016) 243 FCR 2020 [89]; Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71 [62].

43    In the circumstances of this case where the delay is extraordinary and not adequately unexplained, it would set at naught the Minister’s legitimate concerns in the proper disposition of applications under the Act if an extension of time were granted. In the case of decisions made under the Act in respect of which the time for seeking review has long passed, the granting an extension of time would have the consequence that the right to seek review may be resurrected at any later time thereby necessitating a diversion of resources in circumstances where those administrative officers who were familiar with the matter may have moved on. It can be assumed that the limitation of time in which to make an application for review of the Tribunal’s decision has been set by the legislature with the intent that it generally balances the interests of applicants in seeking review with the interests of the Minister and his Department in finalising the decision-making obligations under the Act. Although s 477A(2) enables the Court to extend time, the general temporal limitation cannot be entirely ignored or treated as merely provisional.

44    The prejudice which the Minister would suffer in this case in relation to the orderly and proper administration of the Act is a further factor which weighs heavily in favour of rejecting the application for an extension of time.

45    The applicant did not advance any argument that he would suffer prejudice if the extension of time was not granted. This Court not infrequently considers such matters in the context of applications by which visa applicants seek procedural indulgences in order to agitate a specific case. An application for leave to add a new ground of review on an appeal is one such instance: Coulton v Holcombe (1986) 162 CLR 1 at 7; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 [46] – [48]. Perhaps the absence of any submission by the applicant in this respect was a consequence of the manner in which the case was advanced to the Tribunal where focus was given to the allegedly devastating impact on the applicant’s son if the cancellation decision were not revoked. As the Tribunal’s reasons reveal, substantial evidence was advanced in relation to that issue. Indeed, in the course of the application to this Court, Mr Poynder submitted that this was the essence of the case which was advanced to the Tribunal. Importantly, it was propounded on the basis of Ms L’s evidence that she would not move to New Zealand and did not have the funds to do so. However, subsequent to the Tribunal’s decision, Ms L and the applicant’s son did move to New Zealand where they have apparently resided with the applicant ever since. The alleged devastating sequelae of the separation of the applicant from his son which were relied upon before the Tribunal have not occurred. It might follow that, at least in this respect, the applicant cannot show any detriment if an extension of time is not granted. Despite this, it can be accepted that if time is not extended the applicant will lose the opportunity to advance his case which might otherwise restore his entitlement to live in Australia.

Merits of the application

46    In the case of relatively minor delay, the Court is most specifically concerned with whether the proposed application raises some arguable grounds of review which might be agitated if the extension of time was granted. A conclusion that the proposed grounds are not hopeless, based on an impressionistic assessment of them, will weigh in favour of granting the extension: MZABP v Minister for Immigration and Border Protection [2015] 242 FCR 585 [62] – [66]; DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 at 487 – 495 [45] – [77]. However, as the authorities which have been referred to above disclose, where the delay has been inordinate, some exceptional case needs to be shown before an extension of time will be granted.

47    Those authorities do not identify any metric by reference to which the strength of a ground of review is to be measured when there has been inordinate delay. The Minister submitted that, in cases such as the present, even if it were found that one or more of the intended grounds of review were valid and would succeed, an extension of time should nevertheless be refused. It is not necessary to decide that question on this application. For the reasons which follow, it can be accepted that, at an impressionistic level, some of the grounds raised are arguable such that, if this were a case where the delay was minor and explained, it might generally be expected that an extension of time would be granted. However, it was not shown that the grounds could succeed or that they were of sufficient strength so as to render the circumstances of this case exceptional. It follows that the merits of the proposed grounds of review do not outweigh the consequences of the inordinate delay and the absence of a satisfactory explanation for that delay.

Ground 1

48    By the first proposed ground of review, the applicant contends that the Tribunal failed to engage in an “active intellectual process” with the mandatory consideration of the detrimental effect that removal of the applicant from Australia would have on his son and, in particular, failed to consider the psychological damage that would be inflicted.

49    The applicant’s written submissions asserted that his representative before the Tribunal had forcefully put that his son’s psychological condition would be severely damaged were the cancellation decision not revoked, but that the Tribunal did little more than recite the claims and the evidence on this issue. It was submitted that the Tribunal erred in doing so, that its consideration of the issues was insufficient, and that it was required to go further and demonstrate an understanding of the factual basis upon which the claim was made including the human consequences removal from Australia can bring about: GBV18 v Minister for Home Affairs (2020) 274 FCR 202 (GBV18) [32(d)].

50    Mr Poynder specifically referred to EGH19 v Minister for Home Affairs [2020] FCA 692 (EGH19), a decision of Griffiths J concerning the exercise by the Minister of the discretionary power under s 501(1) to refuse to grant a visa on character grounds. Although the provision under consideration in the present matter is different, the principles discussed by his Honour have relevance to the performance by the Minister of the task of ascertaining whether he is satisfied that there exists another reason why the cancellation decision should be revoked for the purposes of s 501CA(4). It can be accepted that the Minister is required to give meaningful consideration to a submission which is squarely raised or clearly articulated and that, in considering whether that has occurred, careful consideration should be given to the individual facts and circumstances of the particular case. In particular, a decision-maker must not merely repeat the relevant claim which is made, but must go further and demonstrate an understanding of the factual basis or substance upon which it has been made: EGH19 [51(e)].

51    Mr Poynder also relied on the decision of the Full Court in GBV18 which applied the observations of Allsop CJ in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 [3]. There, the Chief Justice observed that, as decisions may visit devastating consequences upon people, the obligation of undertaking a real consideration of the circumstances of the persons affected by a decision requires a decision-maker to confront and reflect upon the human consequences of that decision. This, his Honour said, was not revealed by the use of mechanical formulaic expression and pre-digested shorthand expressions. See also Minister for Home Affairs v Omar (2019) 272 FCR 589 at 607 [39].

52    Mr Poynder submitted that the case advanced to the Tribunal by the applicant was that his separation from his son would have a devastating impact upon the son and, in effect, ruin the rest of the son’s life. It was submitted that the Tribunal failed to consider the human consequences to the applicant’s son of the permanent removal of the applicant from Australia.

53    There is, however, very little from which to infer that the Tribunal failed to take into account the psychological or emotional harm which the applicant’s son might suffer were the applicant to return to New Zealand. It was aware of the evidence to the effect that neither Ms L nor the applicant’s son would move to New Zealand and that they could not afford to visit him there such that the son could have no face-to-face relationship with applicant. It approached the analysis of the claim on that basis and, when the reasons of the Tribunal are read fairly, it is reasonably apparent that it took into account the detrimental impact of the applicant’s absence on his son. It specifically referred to the evidence of a “strong relationship” between the applicant and his son and particularly their attendance at rugby games together. The Tribunal recorded the claims of regular contact between the applicant and his son whilst the applicant was in prison: at [38]. It also identified the evidence that, whilst the applicant had been in prison and in immigration detention, the son’s behaviour had worsened and he was getting into fights at school: at [40]. It also referred to Ms L’s evidence that the applicant was committed to his son and had a great “father and son” bond with his son and that when he was home the applicant would help her with their son. Specific reference was also made to the fact that Ms L asserted that her son cries about his father’s absence and does not understand what is going on: at [41]. The Tribunal also referred to the evidence of the applicant’s mother who described the impact of the applicant’s absence on his son and said that the son is angry, lonely and misses his father. It was also recorded that Ms L said that the applicant’s son would be lost if the applicant were removed from Australia: at [42].

54    Later in its reasons, the Tribunal identified that there would be an emotional impact on both Ms L and her son if the applicant were removed from Australia. It said (at [57]):

The applicant’s partner, Ms L, is an Australian citizen and will likely be impacted by the applicant’s departure from Australia, particularly as a result of the emotional impact it will have on her and her son and the potential, immediate (albeit, likely temporary) financial impact it will have while the applicant re-establishes himself in New Zealand or the Cook Islands.

It further recorded the content of a letter from Ms L dated 26 October 2017 which stated that it would “break our hearts and destroy our son” if the applicant were removed from Australia. No doubt these matters contributed to the conclusion set out above that if the applicant is not able to remain in Australia it will have an emotional impact on Ms L and their son: at [57].

55    It is, perhaps, not an unfair criticism that the Tribunal’s reasons do not identify with precision the nature and effect of the impact which it concluded the applicant’s son would suffer if the applicant were removed to New Zealand. However, that does not result in a conclusion in this case that the Tribunal did not give real and genuine consideration to that issue. To a large extent, the recitation of the unchallenged evidence of the impact of the applicant’s absence on his son accurately identified the case which the applicant was attempting to put and, to a not insignificant degree, it is apparent that the Tribunal tended to accept it, at least at a foundational level. However, the reasons show that the Tribunal did more than just “merely recite” the evidence. It evaluated it as against the contrary evidence. After identifying the support which it was claimed the applicant provided to his son, it observed that the applicant’s mother and sister had given evidence that the son stayed with them on most weekends and on some week days, which indicated that the son and Ms L were not without support: at [38]. This was obviously reflective of an analysis of the evidence adduced by the applicant on this topic. Later in the reasons, the Tribunal referred to the further evidence of the bond between the applicant and his son and the evidence of the applicant’s mother indicating that the son is angry, lonely and misses his father: at [40] – [42]. Again, the Tribunal compares this with the evidence of the support that the applicant’s mother, father and sister provide to his son when the son visits them: at [42]; and this further evidences the evaluative process which the Tribunal undertook. In the same way, the Tribunal referenced the countervailing factors that it was questionable whether the applicant would play a positive role in his son’s life given his extensive criminal history, demonstrated lack of respect for the laws of Australia, and his preparedness to engage in domestic violence in the presence of his son: at [43]. This also discloses the Tribunal’s evaluative process of weighing the evidence before it in relation to the issue of what was in the best interests of the applicant’s son.

56    The Tribunal made certain conclusory observations in relation to this issue: at [44] – [45]. They are set out above, but it is convenient to repeat them:

44.    Having carefully considered all of the factors relevant to this primary consideration, I accept that the best interests of the applicant’s son may be served by the cancellation decision being revoked. This would allow for the possibility of face-to-face contact with his father and would allow the applicant to be physically present in his son’s life to provide assistance, financially and otherwise, with his medical needs.

45.    This primary consideration weighs in favour of revocation; however, having regard to all of the relevant factors, this consideration is outweighed by the other primary considerations.

57    The specific reference in paragraph [44] to the effect that revocation of the cancellation decision would have in allowing face-to-face contact between the applicant and his son is postulated as an answer to the difficulties which the son would otherwise have if the applicant was required to relocate to New Zealand. It reveals that the Tribunal both understood and analysed the case put to it in this respect.

58    When read as a whole, the Tribunal’s reasons fairly disclose that it took into account all of the potential impacts on the applicant’s son which might occur if the applicant were removed from Australia, including the emotional and psychological sequelae of his separation from the applicant. That is particularly apparent from the Tribunal’s reference to the applicant’s son’s behavioural and emotional difficulties which arose in his father’s absence. The Tribunal did not merely recite the evidence which was advanced to it by the applicant. The reasons show that it undertook an evaluative process in relation to the evidence and concluded that the difficulties which the child faced would be ameliorated by the presence of other family members who might support and provide parental care for him, and that he might even suffer damage from the applicant’s presence in his life. Nevertheless, by finding that the best interests of the applicant’s son would be served by revocation of the cancellation decision, it is apparent that the possible emotional and psychological harm outweighed the potential negative influence of the applicant, with the net result being that it would be in the best interests of the applicant’s son if the decision were revoked.

59    With great respect to the careful argument advanced by Mr Poynder on behalf of the applicant, it is not possible to infer that the Tribunal did not give a genuine intellectual consideration to the emotional or psychological impact which the non-revocation of the cancellation decision might visit on the applicant’s son. Whilst it may not have made a finding in relation to each specific piece of evidence, it was not obliged to do so and there is nothing to indicate that any relevant evidence was not taken into account: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 – 605 [45] – [47]. Given that the Tribunal carefully set out the evidence relating to the emotional and psychological impact on the applicant’s son and the conclusions it reached as to what was in the son’s best interests, it is apparent that its consideration of the more specific matters referred to by the applicant were included within the scope of its deliberation of the more general question of what was in the best interests of the child: Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at 332 [46].

60    In relation to whether an extension of time should be granted, it can be said of Ground 1 that it was not unarguable. At an impressionistic level, it had some merit to it such that, if the delay had been modest, it might have warranted extending time. However, the ground is not so strong as to make this case exceptional so as to overcome the consequences of the inordinate and unexplained delay. Ultimately, it would not have succeeded.

Ground 2

61    By the second proposed ground of review, the applicant alleges that the Tribunal erred in making the finding of fact that there was “very limited medical evidence … to support the claims surrounding the applicant’s son’s medical needs”. The applicant submitted that this conclusion revealed a failure by the Tribunal to have regard to certain medical information which had been produced and that there was substantial documentary evidence to corroborate the son’s medical conditions including his asthma, his speech, language and learning difficulties, and his possible need for vision assessment and intervention by an occupational therapist. It was submitted that the medical circumstances of the son were advanced as another reason why the cancellation decision should be revoked, but that the Tribunal failed to deal with the issue by stating there was very little medical evidence of them.

62    This ground is misconceived. The impugned sentence (which is in bold below) is found in paragraph [38] of the Tribunal’s reasons which, in full, reads as follows:

The applicant has one son who is 7 years old. The applicant contends that he has a “strong relationship” with his son and says that he plays an active role including taking his son to weekend rugby games. The applicant claims of continued regular contact with his son while in prison, which is supported by the offender visitation records. He claims to be the sole financial provider for Ms L. The applicant’s son suffers from chronic asthma, ADHD and learning difficulties. The applicant claims that he is required to cover his son’s medical bills which are said to include occupational therapy, speech therapy, psychology and paediatric appointments on a regular basis as well as medication. There is however very limited medical evidence available in these proceedings to support the claims surrounding the applicant’s son’s medical needs. There is also very limited evidence to suggest that the applicant’s removal from Australia would prohibit the applicant from financially supporting his son or his de-facto partner. Further, the applicant’s mother and sister have provided evidence that the applicant’s son stays with them on weekends (most) and on some weekdays, indicating that the applicant’s child and partner are not without family support.

(Emphasis altered).

63    The substance of the applicant’s submission is that the Tribunal wrongly concluded there was limited evidence as to the applicant’s son’s medical conditions. However, in [38], and in particular in relation to the sentence of which complaint is made, the Tribunal was referring to the son’s particular needs in relation to medical treatment and the cost thereof. Whilst it was prepared to accept that treatment of the nature identified, as well as medication, was required, its observation was that there was a lack of evidence as to the extent of the required treatment and its costs which the applicant claimed he would be unable to provide if the cancellation decision was not revoked. That is made clear by the sentence that immediately follows the sentence criticised by the applicant which refers to the fact that there was also very limited evidence to suggest that the applicant could not financially support his son from New Zealand.

64    The Tribunal’s finding that there was limited evidence as to the nature and extent of the treatment which the applicant’s son required and its cost was entirely correct. In the course of the application, Mr Poynder took the Court to a significant amount of evidence that identified medical treatment which had been provided to the applicant’s son or which had been recommended. In particular, he referred to the transcript of the Tribunal’s hearing where the applicant claimed to have paid for his son’s occupational therapist sessions although he did not know the name of the therapist or how often the son attended. He also said that his son had been treated by a speech therapist but, again, he did not know how many appointments his son had been to or the cost of an appointment. He thought the cost was about $300 and he said he paid some money towards that cost but did not say how much. Mr Poynder also referred to the evidence of Ms L before the Tribunal to the effect that the son required regular monthly visits to a doctor to control his asthma and ADHD, and required speech therapy, occupational therapy, and psychological treatment but had not been receiving such treatment lately because Ms L could not afford it. No clear indication was given as to the required frequency of any treatment, its intended duration, or what its cost might be. Ms L also gave evidence of speech pathology and occupational therapy treatment received by the applicant’s son in around 2016 to 2017, which she claimed the applicant had paid for, but that she could not herself afford to continue it. Again, there was no indication of the level of future treatment needed or what that might cost, even though there was some evidence given by her that the cost of occupational therapy and speech pathology treatments in the past were around $180 per session.

65    The Tribunal’s reasons show that it found (at [38]) that, “[t]he applicant’s son suffers from chronic asthma, ADHD and learning difficulties”, and this was in accordance with the evidence. It did not reject the contention that the child required treatment for his ailments and appeared to accept that the applicant had contributed towards the cost of that treatment: at [39]. However, the point made in paragraph [38] was that there was little evidence to identify the medical treatments which the son required and the cost of providing them. There is no basis for doubting that conclusion. The evidence as to the nature and extent of any ongoing medical treatment required by the son was vague and there was no substantive evidence of its likely cost. This rendered the applicant’s claim that he was he was required to cover his son’s medical bills less significant. Further, the import of that claim to the issue to be decided was further lessened by the Tribunal’s subsequent reference to the fact that there was little evidence that the applicant’s removal from Australia would prevent him from continuing to provide financial support: at [38].

66    Otherwise, it cannot be said that the Tribunal failed to appreciate the medical conditions from which the applicant’s son suffered or that he had received assistance from the applicant, financially and otherwise, in relation to treatment in the past. This is supported by the Tribunal’s later conclusion that the best interests of the son may be served by revocation of the visa cancellation as this would allow “the applicant to be physically present in his son’s life to provide assistance, financially and otherwise, with his medical needs”: at [44].

67    In light of the Tribunal’s reasons, it is trite to observe that it fully accepted the fact that the applicant’s son required medical treatment for a number of ailments. It was prepared to accept that revocation of the cancellation decision was in the child’s best interests as it would allow the applicant to provide assistance, financial and otherwise, with those medical needs. In those circumstances, it is impossible to identify any potential error raised by this proposed ground of review.

68    With respect, it is not likely that this ground was even arguable for the purposes of considering the application for an extension of time and, even if it were, it falls well short of rendering the circumstances of this case exceptional so as to overcome the effects of the prolonged and unexplained delay and the prejudice which the Minister will suffer if an extension were granted.

Ground 3

69    By this proposed ground, the applicant alleges that the Tribunal failed to take into account a consideration mandated by paras 8(1) and 14.4 of Direction No. 65, being the impact of a decision not to revoke the cancellation of the applicant’s visa on the victims of his criminal behaviour. Relevantly, para 14.4 provides:

14.4    Impact on victims

(1)     Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

70    There was not insignificant confusion in the applicant’s submissions as to which paragraphs of Direction No. 65 were relevant. Undoubtedly, the relevant considerations were those set out in paras 13 and 14, being those concerned with the exercise of the discretion to revoke a cancellation decision in s 501CA(4). Nevertheless, the applicant’s proposed ground 3, as set out in the application for review, and the relevant aspects of his submissions referred to the considerations in paras 10.2 and 10.4, being the analogues of paras 14.2 and 14.4 in respect of the discretion to cancel a visa in s 501(2). There is little that turns upon this issue in the result and this proposed ground has been considered below on the basis that it referred to the correct paragraphs of Direction No. 65.

71    It was submitted that the victim of the applicant’s most serious recent crimes was Ms L, whom it will be recalled supported the application for revocation. She gave evidence on the applicant’s behalf and made extensive claims as to the potential negative impact upon her if he were to be removed from Australia. As was discussed above, the Tribunal accepted that Ms L would suffer significant negative impacts consequent upon the applicant’s deportation, and it did so under the heading of “Strength, nature and duration of ties to Australia”, being a heading derived from para 14.2 of Direction No. 65. In particular, the Tribunal found that there would be an emotional and an immediate financial impact on Ms L if the applicant were deported: at [57]. Ms L gave evidence that she had struggled whilst the applicant was in prison and detained and that she had suffered depression and anxiety. She also gave evidence that she would not leave Australia and that she could not travel to New Zealand to receive support from the applicant, including in relation to the care of their son.

72    However, the applicant submitted that the Tribunal was obliged to go further and also consider the impact on Ms L qua victim of the applicant’s criminal conduct if his visa were not cancelled or, in other words, if he were permitted to remain in Australia. This submission depended on the relevant consideration being one like that in para 10.4 which explicitly looks to a scenario in which the non-citizen is permitted to remain in Australia. This was to be contrasted with the consideration of the “Strength, nature and duration of ties to Australia”, which in para 10.2 is in terms requiring consideration of the impact on Ms L of the applicant’s visa being cancelled and, like para 14.2, looks to a scenario in which the non-citizen is not permitted to remain in Australia. So the submission went, although the Tribunal had considered at length the deleterious emotional and financial impacts on Ms L if the applicant was required to leave Australia, it was also required to consider those same matters in their character as impacts on her, in her capacity as a victim, if he stayed here.

73    Although there is some force in the submission advanced on behalf of the applicant in relation to para 14.4, it is not sufficient to raise any substantive basis for relief. That part which is sustainable is that, contrary to the literal meaning of para 14.4, the obligation imposed upon the decision-maker when exercising the enlivened discretion in s 501CA(4) is to consider the impact on victims of the applicant if the cancellation decision is not revoked.

74    Direction No. 65 was superseded by Direction No. 79 (itself now superseded) which was in substantially similar terms and, relevantly, the two directions include the same para 14.4. In CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 (CGX20), the Full Court held that the word “not” where it appears in the first line of para 14.4 of Direction No. 79 had been erroneously included such that the clause should be read as requiring a consideration of, inter alia, the impact on an applicant’s victims if the applicant is allowed to remain in Australia. The Court stated:

21.    Here it is clear enough that, in the exercise of a power not to cancel or to grant a visa, both cll 10.4 and 12.3 require a decision-maker to consider the impact on members of the community, including any victim of the non-citizen’s criminal behaviour, of a decision, respectively, not to cancel the visa or to grant it. Likewise, cl 14(1)(d) requires, where relevant, the decision-maker to take into account the impact on victims on which cl 14.4 expands. The word “not” in the introductory part of cl 14.4 appears anomalous, albeit that, as with cll 10.4 and 12.3, it is connected with the nature of the decision called for under the relevant provision, here, s 501CA(4). However, the other two provisions are directed to situations in which a visa is left in place (the visa is not cancelled or is granted), whereas the use of the word “not” in cl 14.4 is directed to the impact on victims and the community were a decision made not to revoke a visa cancellation, such that the visa remains cancelled.

…

23.    The construction arrived at by the Tribunal, which the primary judge considered correct, is more consistent with the analogously expressed requirements in cll 10.4 and 12.3 than with a literal construction of cl 14.4. The failure of the Minister to advance any intelligible reasoning process as to why the literal construction ought be applied enables us more confidently to find that the primary judge was correct in treating the word “not” in cl 14.4 as an error or surplusage that should be ignored so that persons bound by Direction 79 will approach their decisions consistently under cll 10.4, 12.3 and 14.4 in respect of the impact on the community, including victims, if the non-citizen were to hold a visa.

See also DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97 (DKN20) [32] – [38].

75    The decision of the Full Court in CGX20 upheld the first instance decision of Colvin J who had also identified that the import of para 14.4 was to direct the decision-maker to consider the adverse impacts on the victim and victim’s family of the applicant being permitted to remain in Australia: CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1842. His Honour said (at [20]):

For those reasons, cl 14.4 should be read in the manner expressed by the Tribunal and there was no error in approaching the present case in that way. What might be described as negative consequences for family members who were also victims of the offending if the person was not allowed to remain in Australia were matters to be considered under other aspects of Direction 79.

See also Meyrick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 209 [122] – [123].

76    That view was expressly endorsed by the Full Court in DKN20 (at [36] – [37]) and it follows that para 14.4 of Direction No. 65 required the decision-maker to consider, when relevant, the negative impact on a victim and their family of the applicant being permitted to remain in Australia.

77    In the present case, neither Ms L nor the applicant advanced any negative sequelae which would follow from his being able to remain in Australia and no representation was made by any person that any such adverse consequences arose. That being so, there was nothing by reference to which the Tribunal was required to consider the matters in para 14.4, it being a mandatory consideration only when it is relevant to the determination: Minister for Home Affairs v HSKJ (2018) 266 FCR 591 at 608 [52]; Navoto v Minister for Home Affairs [2019] FCAFC 135 [88]; DKN20 [39]. In those circumstances, there is no merit in Ground 3.

78    It should be added that in its consideration of the matter raised by para 14.2 of Direction No. 65, the Tribunal analysed the evidence and ascertained the negative impacts which Ms L would suffer were the applicant to be removed from Australia as compared to a scenario in which he were permitted to remain. The applicant’s case, as advance to the Tribunal, was that Ms L would suffer emotional and financial disadvantage as well as losing the support which she had previously had from the applicant in raising their son. As the foregoing discussion revealed, this was fully considered by the Tribunal. It was necessarily an element of that consideration that, were the applicant to remain in Australia in accordance with Ms L’s wishes, none of those negative impacts would occur. In other words, the negative impacts of the applicant’s removal from Australia identified in this case are the converse of the benefits to Ms L were he to remain. Apart from any future instances of incarceration, the applicant would continue to provide as he had, from time to time, for Ms L and their son. It follows that all of the matters which the applicant complains may not have been considered were taken into account by the Tribunal in other parts of its decision. In this respect, I agree with the comments of Perram J in Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 [26] where his Honour observed that “[w]here a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously”.

79    As submitted by Mr Swan on behalf of the Minister, it is also important to take into account the manner in which the applicant’s case was put to the Tribunal. In his Statement of Facts, Issues and Contentions (SFIC), under the heading “Impacts on Victims”, the applicant identified Ms L as the victim and then identified what he said were the sequelae of his removal from Australia. There followed the identification of the significant impacts on Ms L if he was, in fact, removed. In other words, the case being advanced was that, if the applicant was not removed, the negative sequelae which Ms L would suffer if he was removed would not occur. The oral submissions advanced on behalf of the applicant to the Tribunal did not expand upon the assertions in the SFIC and were also put by reference to the consequence of the applicant’s removal to New Zealand. These matters were specifically referenced by the Tribunal and, indeed, largely accepted. It follows that there was no failure by the Tribunal to respond to the arguments which were actually advanced to it on this topic. It necessarily follows that the Minister’s submission that the absence of a specific finding by the Tribunal in relation to the consideration of the “Impact on victims”, being properly identified in para 14.4 of Direction No. 65, was entirely in accordance with the manner in which the applicant’s case was advanced to the Tribunal.

80    It follows that there is nothing in relation to Ground 3 which might have given rise to an error by the Tribunal in its conclusion that it was not satisfied that there was another reason why the cancellation decision should be revoked.

81    Again, this ground may have been arguable and not wholly without merit, and might, therefore, have supported an extension of time in more ordinary circumstances. However, once analysed, it can be seen to be of insufficient strength to raise this case to the status of being “exceptional”.

Conclusion

82    The applicant’s delay of approximately two years and two months in making an application to this Court was inordinate and extraordinary. More importantly, it was not adequately explained on this application. The evidence which was adduced, in fact, negates the existence of any valid reason for the delay. It tends to establish that the applicant had accepted the Tribunal’s decision but changed his mind consequent upon Ms L and his son expressing a preference for returning to Australia. Those matters of themselves weigh strongly against granting the extension of time sought by the applicant. In addition, the making of an order extending time would be inimical to the administration of the Act by the Minister and to the processes of the Court.

83    Further, the grounds agitated in support of the proposed application for review have limited prospects of success when considered at an impressionistic level. Whilst some were arguable, none are sufficient to support a conclusion that there are exceptional circumstances which would warrant an extension of time in the interests of the administration of justice.

84    In the circumstances, the application for extension of time in which to file the Originating Application seeking review of the Tribunal’s decision not to revoke the cancellation decision should be dismissed. It follows that the application for review should also be dismissed as being out of time.

85    There is no reason why the applicant ought not to pay the Minister’s costs of the application for an extension of time and of the application for judicial review.

Associate:

Dated:    1 July 2021