Federal Court of Australia

Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1000

ORDERS

THE COURT ORDERS THAT:

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

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

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

ORDERS

THE COURT ORDERS THAT:

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

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

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

REASONS FOR JUDGMENT

NICHOLAS J:

Background

1    Before me is an application for an extension of time in which to file an application for the review of a migration decision pursuant to s 476A of the Migration Act 1958 (Cth) (“the Act”) and, if granted, the hearing of that application. The respondent (“the Minister”) opposed the making of an order extending the time.

2    Also before me is an application filed by the applicant in the Federal Circuit Court of Australia (“the FCCA proceeding”) seeking an extension of time under s 477 of the Act. The applicant commenced the FCCA proceeding in order to overcome a jurisdictional objection raised by the Minister to the first of the two grounds of review that the applicant relied on in this Court. On 30 October 2020, Judge Driver made an order by consent that the FCCA proceeding be transferred to this Court pursuant to s 39(1) of the Federal Circuit Court of Australia Act (1999) (Cth). The FCCA proceeding is now proceeding NSD 1195 of 2020 in this Court.

3    The applicant no longer relies on ground 1 in his amended draft originating application or the application filed in the FCCA proceeding which raised the same point. It is common ground that the point the applicant sought to raise is no longer open in light of the High Court’s decision in Minister for Immigration and Border Protection v EFX17 [2021] HCA 9 (“EFX17”) delivered on 10 March 2021. What remains to be decided is the applicant’s application for an extension of time and, if that application is granted, ground 2 of his proposed grounds of review.

4    The applicant is a New Zealand citizen. He was born in 1993 and first arrived in Australia in 2013 aged 19. He is the holder of a Class TY Subclass 444 Special Category (Temporary) visa. On 2 September 2019, the Minister determined to cancel the applicant’s visa pursuant to s 501(3)(b) of the Act on the basis that the Minister reasonably suspected that the applicant did not pass the character test, and, that the cancellation of the applicant’s visa was in the national interest. The Minister reasonably suspected that the applicant had been, or was, a member of the Comanchero Outlaw Motorcycle Gang and that the group had been, or was, involved in criminal conduct as described in s 501(6)(b) of the Act and as such the applicant did not meet the character test.

THE APPLICATION FOR AN EXtension of time

5    The deadline for making an application pursuant to s 477A(1) of the Act was 35 days from the date of the decision on 2 September 2019. The applicant’s application was filed on 1 November 2019, approximately three weeks out of time.

6    The factors usually taken into account when considering whether or not to grant an extension of time are those enumerated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 where his Honour was considering an application for an extension of time within which to make an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). His Honour identified the following matters which should guide the exercise of the discretion when a court is determining whether or not to grant an extension of time:

(a)    special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do;

(b)    the prescribed period is not to be ignored;

(c)    the prima facie rule is that proceedings commenced outside the prescribed period will not be entertained;

(d)    the applicant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;

(e)    the mere absence of prejudice to the respondent is not enough to justify the grant of an extension;

(f)    the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted; and

(g)    fairness between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion.

7    The Minister accepted that the applicant’s delay was not inordinate and did not contend that he would be prejudiced by the grant of an extension of time. However, the Minister argued that the applicant’s extension of time should be dismissed because the applicant’s proposed grounds of review lack sufficient merit to warrant the grant of an extension of time.

8    Ground 2 of the applicant’s proposed grounds of review was fully argued. For the reasons that follow, I am not persuaded that ground 2 has any merit. In the circumstances, I propose to dismiss the applicant’s application for an extension of time.

9    So far as the FCCA proceeding is concerned, it is common ground that proceeding, even if there was an extension of time granted, cannot succeed in light of the High Court’s decision in EFX17. For that reason the application for an extension of time in the FCCA proceeding will also be dismissed.

The Minister’s Reasons

10    Section 501(3) of the Act provides:

(3)    The Minister may:

(a)    refuse to grant a visa to a person; or

(b)    cancel a visa that has been granted to a person;

    if:

(c)    the Minister reasonably suspects that the person does not pass the character test; and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

11    The Minister’s reasons show that he reasonably suspected the applicant did not pass the character test and that he was satisfied that cancellation of the applicant’s visa was in the national interest. The Minister’s reasons refer to material before him that indicated that the applicant was a member of an outlaw motorcycle gang (“OMCG”) being the Comanchero OMCG.

12    In considering the national interest, the Minister’s reasons show that he had regard to the applicant’s criminal offending including a recent conviction for a serious assault. The Minister stated in his reasons that he considered the applicant’s criminal conduct in Australia to be serious.

13    The Minister also considered what he referred to as “pending charges” which were referred to in an Australian Federal Police Statement of Facts that was before him. According to the Minister’s reasons:

50.    Having regard to the AFP Statement of Facts, I note that on 8 February 2019, Mr TU’UTA KATOA was charged with affray, arising from an incident on 18 January 2019. As indicated above, Mr TU’UTA KATOA was identified on CCTV footage, attending a club in the company of a number of other Comanchero OMCG members and associates. Mr TU’UTA KATOA and his associates are alleged to have acted as a group to engage in menacing and intimidating conduct and acts of violence against members of the Nomads OMCG. I note that this matter is next before the Magistrates Court of the ACT on 28 October 2019.

51.    I have considered the AFP Statement of Facts relating to charges laid against Mr TU’UTA KATOA on 22 February 2019, namely blackmail, make demand with threat to endanger health, take motor vehicle without consent, and prohibited weapon – possess/use w/out permit/authorisation, in relation to a course of conduct between 30 November 2018 and 15 February 2019.

52.    I note that the alleged victim in these matters is described as a cocaine trafficker, who reported owing drug related debts to Mr TU’UTA KATOA. Mr TU’UTA KATOA is alleged to have blackmailed the victim by taking his motor vehicle, stating he would not return it until the debt was paid. Mr TU’UTA KATOA is also alleged to have made repeated demands for money from the victim, while making direct and indirect threats. Police also allege that a set of knuckle dusters were located during a search of a vehicle operated by Mr TU’UTA KATOA.

53    I note that these matters are next before the Supreme Court of the ACT on 24 October 2019.

…

62.    According to the information from the AFP, Mr TU’UTA KATOA has engaged in alleged conduct resulting in his being charged with affray, a matter pending court outcome and for which Mr TU’UTA KATOA remains presumed innocent. As detailed above, as part of a group of Comanchero OMCG members and associates, Mr TU’UTA KATOA is alleged to have engaged in violent and menacing conduct towards members of a rival OMCG. Mr TU’UTA KATOA’s other pending court matters include a charge of blackmail, an offence with a maximum penalty of 14 years imprisonment, and a charge of making a demand with a threat to endanger health, an offence with a maximum penalty of 10 years imprisonment. The police Statement of Facts in relation to these matters make reference to the victim being intimidated due to Mr TU’UTA KATOA’s membership of the Comanchero OMCG.

63.    In light of the above information, I consider there to be a demonstrated causal relationship between Mr TU’UTA KATOA’s membership of the Comanchero OMCG and his involvement in the alleged conduct resulting in charges, noting that these are yet to be heard or determined by a Court.

…

69.    I further take into account the information from the AFP, which demonstrates that Mr TU’UTA KATOA’s status as a member of the Comanchero OMCG affords him the opportunity to cause harm by engaging in the alleged conduct resulting in criminal charges. I find that the removal of Mr TU’UTA KATOA from Australia would disrupt his involvement and activity within the Comanchero OMCG and potentially disrupt the ongoing criminal activity of the Comanchero OMCG in the ACT community.

70.    I understand that the pending charges in relation to Mr TU’UTA KATOA have not been heard or determined by a court and therefore these cannot be regarded as a finding of guilt against Mr TU’UTA KATOA who remains innocent of the charges. However, I consider it is indicative of an increase in the risk of his reoffending, that as a result of his membership of the Comanchero OMCG, he has again come to the attention of law enforcement resulting in charges for serious offences.

Ground 2

14    Ground 2 of the proposed grounds of review is as follows:

In relying on the charges laid against the Applicant in support of a determination that the Applicant posed a risk of reoffending and/or a risk to the Australian community, the Minister failed to act on the basis of probative material and/or took into account an irrelevant consideration and/or acted in a legally unreasonable and/or illogical and/or irrational way and/or acted contrary to the presumption of innocence and therefore committed jurisdictional error.

Particulars

(a)    At [62]-[63] and [69]-[70] of the statement of reasons the Minister took into account the charges against the Applicant in support of his conclusion that the Applicant posed a risk of reoffending and/or a risk to the Australian community

(b)    That reasoning formed part of the basis on which the Minister concluded that he was satisfied that the cancellation of the Applicant's visa was in the national interest.

(c)    The Minister should not have given any weight to, alternatively reached any conclusion to the Applicant on the basis of, pending charges against the Applicant. To do so was contrary to the Applicant's entitlement to the presumption of innocence.

15    Accordingly, the applicant contends that the Minister found that there was a risk that the applicant would reoffend, and that he posed a risk to the Australian community, based on the fact that the applicant had been charged with further criminal offences. The applicant contends that the Minister came to that conclusion in the absence of any probative or logical material to support it and contrary to the presumption of innocence.

16    The applicant submitted that the fact that the applicant had been charged with criminal offences for which he was yet to stand trial was irrelevant to the question of whether the applicant’s visa should be cancelled. He further submitted that the Minister’s reasoning violated the presumption of innocence.

17    The applicant placed reliance on the decision of Logan J in Dalla v Minister for Immigration and Border Protection [2016] FCA 998 (“Dalla”) and, in particular, what his Honour said at [29]:

At the heart of the challenge made by Mr Dalla, is that one factor which was counted adversely against him was the fact of his being charged. What this Tribunal member ought to have done, was to remind himself that, unless and until Mr Dalla was convicted or unless and until the Tribunal member made an affirmative finding on the basis of material reasonably probative of the fact that Mr Dalla had breached our law, he was entitled to the presumption of innocence. This, the Tribunal member did not do. It is that use which was not lawful. The use made was a subversion of our system of governance. To the extent that the primary judge concluded otherwise, I respectfully disagree.

18    It is necessary for me to say more about this decision later in these reasons. I merely note at this point that the Minister contended that Dalla is distinguishable and that the present case is not one in which the Minister’s determination was not supported by probative evidence, or was otherwise unreasonable in the legal sense.

Consideration

19    In Dalla, a delegate of the Minister cancelled Mr Dalla’s visa on the ground that Mr Dalla had not complied with s 102(b) of the Act. The cancellation was made pursuant to s 109(1) which required the Minister to have regard to any prescribed circumstances. Regulation 2.41 of the Migration Regulations sets out the prescribed circumstances which included, under subpara (j), “any breaches of the law since the non-compliance and the seriousness of those breaches”.

20    It is apparent that subpara (j) is concerned with actual breaches of the law. The case argued for Mr Dalla was that the Tribunal which reviewed the decision of the delegate had impermissibly drawn an adverse inference against Mr Dalla on the basis of him merely having been charged with particular offences. In the section of the Tribunal’s reasons dealing with “breaches of the law since the non-compliance and the seriousness of those breaches” the Tribunal found that “the offences that the applicant has been charged with are of a serious nature and this factor has weighed heavily on the Tribunals mind with regard to the exercise of discretion.” Logan J found that the Tribunal had regard to the fact that the applicant had been charged with certain offences when determining whether the applicant had committed any breaches of the law and the seriousness of those breaches.

21    His Honour accepted that proof of breaches of the law could be achieved in the absence of any relevant conviction. But it is apparent from what his Honour said at [29] that the Tribunal drew an adverse conclusion against Mr Dalla merely on the basis that he had been charged without making any affirmative finding on the basis of probative material that Mr Dalla had breached the law.

22    In the present case, because the Minister reasonably suspected that the applicant did not pass the character test due to his links to the Comanchero OMCG, it was open to him to cancel the applicant’s visa if he was satisfied that the cancellation was in the national interest.

23    The Minister’s reasons note that the Australian Criminal Intelligence Commission (“ACIC”) was of the view that OMCGs represent one of the most high profile manifestations of organised crime in Australia, are a threat to civil law and community safety, and a threat to Australia’s national security.

24    When considering the national interest the Minister reviewed the applicant’s criminal offending, which included convictions for assault occasioning actual bodily harm which attracted a prison sentence, and further convictions for possession of “knuckle dusters”, a bullet and cocaine. The Minister considered that this history demonstrated a concerning pattern of criminal behaviour and that the applicant’s criminal conduct in Australia was serious.

25    The Minister also found that the applicant had engaged in other serious conduct by being a member of the Comanchero OMCG for some five years, and by more recently taking on a senior role in that group as the Sergeant-at-Arms of the Canberra chapter.

26    With regard to the pending charges, it is apparent that the Minister considered that there was a connection between the applicant’s membership of the Comanchero OMCG and the alleged conduct that gave rise to those charges. However, the Minister expressly noted that the charges had not been heard or determined. The Minister’s reasons refer to the applicant’s alleged conduct.

27    The applicant submitted that the Minister should not have given any weight to the pending charges and that the existence of those charges was irrelevant. He further submitted that the Minister wrongly drew inferences against him based on the charges even though the applicant must be presumed to be innocent of those charges until proven guilty.

28    I do not accept the applicant’s submissions.

29    The authorities show that in deciding whether to cancel a visa the Minister may have regard to the existence of criminal charges even if the allegations supporting the charges have not been proven or the visa holder has been acquitted.

30    Material may tend to show that a non-citizen may have engaged in criminal, inappropriate or otherwise harmful conduct if it indicates that he or she has been charged with an offence. The non-citizen need not be convicted of or charged with an offence before the Minister may lawfully have regard to the alleged conduct. Section 501 “is not confined to prohibiting the entry or presence in Australia of persons who have been convicted of criminal conduct”: Ngaronoa v Minister for Immigration and Citizenship [2007] FCA 1565 at [51]-[53], [56], [58] per Jacobson J, affirmed on appeal: Ngaronoa v Minister for Immigration and Citizenship (2007) 244 ALR 119 at [11] per Bennett and Buchanan JJ (with whom Moore J agreed); see also SZRTN v Minister for Immigration and Border Protection [2014] FCA 303 at [92] per Katzmann J and Parker v Minister for Immigration and Border Protection [2016] FCA 938 at [29]-[31] per Katzmann J.

31    In the present case the Minister found that the applicant had been charged with further serious criminal offences as a result of his involvement with the Comanchero OMCG. The Minister found that applicant’s membership of the Comanchero OMCG heightened the risk of harm the applicant posed to the community and that his conduct as a member of the Comanchero OMCG demonstrated a lack of respect for law and order in Australia. Those findings did not depend upon an acceptance by the Minister that the applicant had in fact committed the criminal offences with which he had been charged.

32    There was probative material before the Minister from which he could reasonably infer that the charges against the applicant arose out of his involvement in the Comanchero OMCG and his attendance at a club on 18 January 2019 in the company of the other members of the OMCG. The Minister did not draw any conclusion or inference that the applicant was guilty. But the existence of the charges coupled with the CCTV footage referred to by the Minister showed that as late as 18 January 2019 the applicant was still keeping company with other members of the Comanchero OMCG including the then chapter commander, and that their activities resulted in the applicant and other members being charged with serious criminal offences. It is clear that the Minister considered that this weighed in favour of visa cancellation. The Minister’s process of reasoning was not unreasonable in the legal sense nor was it affected by any other error capable of amounting to jurisdictional error.

Disposition

33    Each of the applications for an extension of time will be dismissed with costs.

Associate:

Dated:    24 August 2021