Federal Court of Australia

Lesianawai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 896

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The applicant pay the first respondent’s costs, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1    The applicant, Mr Lesianawai, seeks an extension of time within which to lodge an application for the review of a migration decision. In his supporting affidavit, he identifies two decisions in respect of which an order for certiorari would be sought, being a decision of the first respondent (the Minister) dated 9 October 2013, and a decision of the second respondent (the Tribunal) dated 8 November 2018.

2    On 9 October 2013, a delegate of the Minister decided to cancel Mr Lesianawai’s visa under s 501(2) of the Migration Act 1958 (Cth). On 30 October 2018, more than five years after the delegate’s decision, Mr Lesianawai applied for merits review in the Tribunal. On 8 November 2018, the Tribunal dismissed his application for review pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) as it was satisfied that the decision was not reviewable by the Tribunal. In his draft originating application, Mr Lesianawai purports to invoke the Court’s jurisdiction under s 476A of the Migration Act. The document also refers to Mr Lesianawai seeking to ‘appeal’ the Tribunal’s decision, under which are set out two ‘questions of law’. The document also seeks a variety of relief, including that the ‘Appeal be allowed’.

BACKGROUND

3    Mr Lesianawai is a citizen of Fiji, who came to Australia in January 1988 when he was four years old. He was subsequently granted a Transitional (Permanent) (Class BF) visa. On 8 August 2003, Mr Lesianawai was convicted in the District Court of New South Wales following entry of a plea of guilty for three offences including armed robbery. He was sentenced to a term of five years’ imprisonment.

4    On 4 August 2005, an officer of the Minister’s Department issued Mr Lesianawai with a notice of intention to consider cancellation of his visa. It appears that his visa was not cancelled following this conviction, but that he was issued with a warning in 2006 about the consequences of further criminal offending.

5    The following year, Mr Lesianawai committed further armed robbery offences between October and November 2007. In respect of this offending, on 25 June 2009, Mr Lesianawai pleaded guilty in the District Court to two counts each of ‘robbery while armed with a dangerous weapon’ and ‘attempted robbery armed with a dangerous weapon’.

6    On 14 May 2010, Mr Lesianawai was convicted and sentenced to an aggregate imprisonment term of 11 years, with a seven year non-parole period. Following a Crown appeal, on 28 October 2010 he was re-sentenced in the New South Wales Court of Criminal Appeal to an aggregate 14 years’ imprisonment, with a non-parole period of 10 years, for his offences.

7    Consequently, on 13 December 2012, an officer of the Department issued Mr Lesianawai with a further notice of intention to cancel his visa under s 501(2) of the Migration Act. On 26 February 2013, Mr Lesianawai made a submission to the Department about the proposed decision to cancel his visa. On 9 October 2013, a delegate cancelled the visa under s 501(2) of the Migration Act. The cancellation decision was notified to Mr Lesianawai pursuant to s 501G(1) by letter dated 10 October 2013, and was sent by registered post to Mr Lesianawai at the Cooma Correctional Centre, where records indicate he was incarcerated at the time.

8    On 30 October 2018, over five years later, Mr Lesianawai sought review of the cancellation decision in the Tribunal. The terms of s 500(6B) of the Migration Act require that any application for review of a decision to cancel a person’s visa under s 501 ‘must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1)’. The Tribunal, in a decision made on 8 November 2018, dismissed the application pursuant to s 42A(4) of the AAT Act. That provision empowers the Tribunal to dismiss an application without proceeding to review the decision if satisfied that the decision is not reviewable. In this case, the Tribunal’s satisfaction was reached by virtue of the extreme delay in bringing the review which failed to comply with s 500(6B) of the Migration Act. On 9 November 2018, the Tribunal sent Mr Lesianawai a letter enclosing a copy of its decision dismissing his application. The notice advised Mr Lesianawai that he might be able to appeal the decision to this Court.

9    Mr Lesianawai, however, applied to the Federal Circuit Court of Australia for judicial review of the decision of the delegate to cancel his visa. The Minister’s representatives invited him to withdraw those proceedings as the Federal Circuit Court did not have jurisdiction to entertain the review. Mr Lesianawai subsequently obtained legal representation and, on 8 January 2019, filed a notice of discontinuance in the Federal Circuit Court.

10    On 20 May 2019, Mr Lesianawai made a second application for review to the Tribunal. He advanced an argument that the Tribunal’s 8 November 2018 decision was in error because he had not been properly notified of the delegate’s decision to cancel his visa. The Tribunal in a decision made on 22 August 2019 rejected that argument, and dismissed his application pursuant to s 42A(4) of the AAT Act: Lesianawai v Minister for Home Affairs [2019] AATA 2947.

JURISDICTION

11    To the extent Mr Lesianawai purports to challenge the delegate’s decision to cancel his visa, this Court does not have jurisdiction. Section 476A(1) of the Migration Act limits the Court’s jurisdiction in relation to migration decisions ‘despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977’. The Court does not have jurisdiction to review a decision made by a delegate under s 501 of the Migration Act. These proceedings therefore can only be entertained to the extent that they raise a challenge to the Tribunal’s decision dated 8 November 2018.

12    It is unclear whether Mr Lesianawai seeks an extension of time to commence a review in the Court’s original jurisdiction under s 476A of the Migration Act in review of a ‘migration decision’, or whether he seeks to appeal the Tribunal’s decision pursuant to s 44 of the AAT Act. Part IVA of the AAT Act (of which s 44 forms part) does not apply to an application in relation to, or a proceeding for the review of a privative clause decision, a purported privative clause decision, or an AAT Act migration decision, as defined in the Migration Act. As the proceeding dismissed by the Tribunal on 9 October 2013 was a review of a decision under s 501(2) of the Migration Act, Pt IVA (including s 44) does not apply to a decision of the Tribunal in that proceeding. Further the draft originating application does not articulate any substantive questions of law as required under s 44 of the AAT Act. It appears that the Tribunal’s decision the subject of review is a ‘privative clause decision’ as defined in s 474(2) and s 474(3)(i) of the Migration Act, and that Mr Lesianawai purports to invoke the Court’s original jurisdiction under s 476A(1)(b) of the Migration Act. In this regard, s 477A(1) of the Migration Act requires any application to this Court under s 476A(1)(b) must be made within 35 days of the Tribunal’s decision. On this basis, Mr Lesianawai is approximately two years and three months out of time.

13    Mr Lesianawai, who had received the Minister’s submissions and who had also been advised by pro bono counsel, ultimately represented himself at the hearing. No further submissions were advanced beyond his written materials.

14    The Minister opposed the extension of time in light of the extensive and largely unexplained delay, and because the proceedings lack reasonable prospects of success.

CONSIDERATION

15    As noted, an application for review of the Tribunal’s decision is to be filed within 35 days of the date of the migration decision: s 477A(1). The application is substantially out of time. The Court’s discretion to grant an extension of time under s 477A(2) arises if the ‘Court is satisfied that it is necessary in the interests of the administration of justice to make the order’. That discretion is broad and the relevant considerations are not confined by express words in the statute. Typically, the considerations the Court will have regard to in considering whether to extend time include the extent of the delay and any explanation offered for it, whether the respondent is prejudiced by an extension of time being granted and the merits of the case.

16    In relation to the reasons proffered for the delay, Mr Lesianawai states in his affidavit that he has been in prison ‘at all times since 2007 till 2021’, that he lacked for resources, that he was ‘never advised by the respondent whats [sic] happening to my case’ and that the Tribunal ‘advised me that Federal Circuit Court have jurisdiction on my case’. These are not satisfactory explanations for the delay. Mr Lesianawai has shown himself capable of instituting proceedings in courts and in the Tribunal itself despite his incarceration. The delay of over 800 days in commencing these proceedings, even taking into account his application to the Federal Circuit Court which he ultimately discontinued, is left unexplained. Mr Lesianawai’s statement that he was improperly advised is contradicted by the Tribunal’s letter informing him that he may be able to seek review only in this Court. He had the assistance of a lawyer in his Federal Circuit Court proceedings, and in his second application to the Tribunal. It is left unexplained why he delayed so significantly in coming to this Court.

17    On the question of prejudice, the Minister concedes he would suffer no particular prejudice if an extension of time were granted. However, the mere absence of prejudice does not of itself justify the granting of an extension of time: DLE16 v Minister for Home Affairs [2019] FCA 136 (at [27]), citing Parker v The Queen [2002] FCAFC 133 and Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 186; (1984) 3 FCR 344 (at 348-349).

18    As to the merits of any proceeding, Mr Lesianawai, in his draft originating application appears to question why the Tribunal dismissed his application without a review despite having a reasonable decision before it. Mr Lesianawai also appears to challenge the delegate’s decision to cancel his visa under s 501(2) of the Migration Act. As stated above, the Court lacks jurisdiction in relation to the latter decision by the delegate to cancel his visa.

19    Mr Lesianawai in his draft originating application otherwise appears to challenge the Tribunal’s decision first, on the basis that he was denied procedural fairness in that he was not given an opportunity to explain why his application was made out of time, and secondly, on the basis that a letter sent to him by the Minister’s representatives dated 18 December 2018 inviting him to discontinue his Federal Circuit Court proceedings failed to give proper advice that this Court had jurisdiction to review the Tribunal’s decision. Mr Lesianawai also asserts that he did not understand the migration review process and lacked access to the ‘welfare department staff’ that were assigned to assist him since he was in prison.

20    It is necessary for the Court to consider the merits of Mr Lesianawai’s proposed grounds only on an impressionistic basis for the purposes of determining whether an extension of time ought to be granted: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (at [58]-[63]), approved by the Full Court in MZABP v Minster for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 (at [38]). Even on an impressionistic level, the proposed grounds of review do not reveal any arguable challenge to the Tribunal’s decision.

21    The Tribunal was correct to determine that it did not have before it a decision capable of review. Section 25(1) of the AAT Act provides that an:

enactment may provide that applications may be made to the Tribunal, (a) for review of decisions made in the exercise of powers conferred by that enactment, or (b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

22    Section 500(1)(b) of the Migration Act gives the Tribunal jurisdiction to review decisions of a delegate of the Minister made under s 501. Section 500(6B) provides that such applications for review must be made within nine days of notification under s 501G(1). The extension of time provisions in ss 29(7), 29(8), 29(9) and 29(10) do not apply: s 500(6B). As stated above, Mr Lesianawai was substantially out of time in seeking review of the delegate’s decision to cancel his visa, and the Tribunal was correct in so finding. It had no choice to find otherwise.

23    The evidence reveals that Mr Lesianawai was properly notified of the decision to cancel his visa. The requirements for the notification are set out in s 501G(1) of the Migration Act. Relevantly, the notification letter:

(a)    set out the decision;

(b)    specified the provision under which the decision was made, and gave reasons for the decision: s 501G(1)(c) and s 501G(1)(d);

(c)    informed Mr Lesianawai he could apply to the Tribunal for review: s 501G(1)(f)(i);

(d)    informed Mr Lesianawai that any review to the Tribunal had to be brought within nine days: s 501G(1)(f)(ii);

(e)    enclosed a fact sheet about the review: s 501G(1)(f)(iv) and s 501G(1)(f)(v); and

(f)    was sent by prepaid post and dispatched within three working days to Mr Lesianawai’s last residential address: s 501G(3) of the Migration Act and regs 2.55(3)(c) and  2.55(4) of the Migration Regulations 1994 (Cth).

24    Realistically, it may well be accepted that Mr Lesianawai has been confused by the technicalities involved. That would be hardly surprising. But it does not follow that he has not been accorded an adequate opportunity within the requirements of the Migration Act to address the matters he now seeks to raise. In relation to the contention of a denial of procedural fairness, whether the Tribunal had jurisdiction to review the delegate’s cancellation decision, in light of the prescribed time limit in s 500(6B), is a question of jurisdictional fact. The answer to that question is not dependent upon whether the Tribunal afforded procedural fairness to Mr Lesianawai. In any event, the evidence shows that the issue of the Tribunal’s jurisdiction was raised and he had an opportunity to make submissions to the Tribunal about its jurisdiction at the case management directions hearing that was held on the day of the Tribunal’s decision. The assertion of a denial of procedural fairness fails at an impressionistic level to make out error in the Tribunal’s decision.

25    As to Mr Lesianawai’s contention that he was not given proper advice about the jurisdiction of this Court when he was invited by the Minister to discontinue the Federal Circuit Court proceedings, this is not a matter that has any bearing on the preceding decision of the Tribunal. In any event, Mr Lesianawai had taken his own legal advice.

CONCLUSION

26    Either on the basis of the extreme delay or on the basis of no prospects of success, the application for an extension of time must be dismissed, with costs.

Associate:

Dated:    4 August 2021