Federal Court of Australia

BEG21 v Minister for Home Affairs [2022] FCA 633

ORDERS

THE COURT ORDERS THAT:

1.    The amended application for an extension of time be dismissed with costs.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    By his application lodged on 6 May 2021, the applicant seeks an extension of time in which to file an application for judicial review of the decision of the respondent, the Minister for Home Affairs, not to revoke the cancellation of the applicant’s Class XB Subclass 200 Refugee visa and, if granted, the hearing of that application. Pursuant to orders made by the Court, an amended application for an extension of time and amended draft originating application were filed on 6 August 2021.

2    The Minister neither consents nor opposes the application for an extension of time. However, if the Court grants the extension, the Minister opposes the review application on both grounds that the applicant seeks to press.

BACKGROUND

3    The applicant is a citizen of Burundi. He was born in 1981. In 2007, the applicant came to Australia on a Class XB (subclass 200) refugee visa accompanied by his wife and child. In 2008, a second child was born to the applicant and his wife in Australia.

4    On 9 February 2018, the applicant was convicted in the District Court of Western Australia of the offence of having sexually penetrated a child over 13 and under 16. The offence was committed on 15 February 2016. The applicant was sentenced to a term of four years imprisonment, back-dated to take effect from 26 January 2018, with eligibility for parole after two years. The sentencing judge accepted that the applicant had had a traumatic experience in Burundi, noted that he is illiterate in any language, and that his opportunities in Australia have been severely limited by his lack of education and inability to communicate in English.

5    On 3 May 2019, a delegate of the Minister cancelled the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) on the basis that he did not pass the character test as a result of his substantial criminal record, referrable to: (1) his sentence to imprisonment of 12 months or more (s 501(7)(c) of the Act); and (2) his conviction of a sexually-based offence involving a child (s 501(6)(e)(i) of the Act).

6    The applicant was issued with a written notice dated 3 May 2019, notifying him of his visa cancellation and inviting him to make representations to the Minister about revoking the cancellation of his visa. Accompanying that notice was a copy of the District Court judge’s sentencing remarks and Direction 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA dated 20 December 2018. The applicant was invited to address each paragraph in Part C of Direction 79 that was relevant to his circumstances. An acknowledgement of receipt of the notice and accompanying documents is dated 10 May 2019.

7    The applicant was assisted in lodging a request for revocation of the visa cancellation by persons at the prison. With that assistance, on 13 May 2019, the applicant made representations to the Minister in support of his application for revocation of the visa cancellation. Shortly thereafter, the applicant provided further material in support of revocation including a letter from the applicant dated 10 June 2019.

8    On 3 April 2020, the Department of Home Affairs wrote to the applicant asking him to comment on further information that had become available, namely, the National Criminal History Check for the applicant dated 25 March 2020. The only conviction disclosed therein was the sexual offence conviction of 9 February 2018 for which the applicant was serving his sentence. The applicant responded by letter dated 6 April 2020 in which he said (as written):

Is this History Check a positive factor for my quest to have my original Visa cancellation revoked?

As per previous correspondence with the Home Affairs, you will note that my circumstances are continually changing for the better in my mission to remain here in Australia with my Wife and young Family through on-going Education in the English Language and the fact that I have immediate Employment on release etc. (Further details of such can be forwarded to you on request)

Whereas on release from Prison, I will engage my passion to provide a quality utility of life for my Family that is a vast disparity from that of the Refugee camps back in Burundi and in turn showing allegiance to the Australian Community.

Looking forward in anticipation to your response.

9    The applicant was not assisted by a lawyer or migration agent at any stage in making his representations in support of revocation of his visa cancellation.

10    On 8 December 2020, following receipt of a submission prepared by the Department, the Minister considered the applicant’s case personally, rather than referring it to a delegate. In considering the applicant’s case personally, the Minister was not bound to follow Direction 79. On that same day, the Minister made a decision not to revoke the cancellation of the applicant’s visa and signed a statement of reasons (R).

11    On 9 December 2020, the Department sent an email to the Western Australian Department of Justice asking that the attached materials containing the Minister’s decision and statement of reasons be handed to the applicant “as soon as possible”. The officer’s email also stated:

[The applicant] will be taken to have received notification when the attached is handed to him.

Kindly confirm delivery of the notification to [the applicant] by returning a signed copy of the acknowledgement (on page 3 of the attached notification letter) by email to: 501Revocations@homeaffairs.gov.au

12    It is not clear when the prison staff handed the notification package to the applicant as the acknowledgement on page 3 of the notification letter was not returned with a signature.

13    The 35 day period within which to lodge an application for review of the non-revocation decision in s 477A(1) of the Act ended on either 12 or 13 January 2021, given that the date of the non-revocation decision was 8 December 2020. The Minister submits that the end date was 12 January 2021, the applicant submits it was 13 January 2021. Nothing turns on which of these two dates is correct. On 6 May 2021, the applicant filed an application for an extension of time, and subsequently filed an amended application with an amended draft originating application on 6 August 2021. It is common ground that the application lodged on 6 May 2021 was over three months out of time.

EXTENSION OF TIME APPLICATION

14    Subsections 477A(1) and (3) of the Act set a 35 day time limit from the date of the written notice of decision for an application to the Court under s 476A. As mentioned, the application was first lodged over three months out of time.

15    The principal explanation for the applicant’s delay is his inability to communicate in English, his imprisonment and lack of access to legal advice. These matters place him at a significant disadvantage. Although the applicant had assistance from others at the prison in submitting documents to the Department, once the Minister’s revocation decision was received, the applicant submits that those persons were of little assistance in facilitating his access to legal advice. The applicant also submits that the support he received from his wife has been limited due to her being unwell and caring for their two children. In early 2021, persons assisting the applicant from outside the prison contacted lawyers on his behalf, however, those lawyers were unable to progress an application for review because they did not have access to the documentation relating to the Minister’s decision. Upon obtaining the relevant documents, the lawyers assisting the applicant submitted his application for review shortly thereafter. The applicant submits that he ought to be granted an extension of time for these reasons.

16    As noted above, the Minister neither consents nor opposes the application for an extension of time. The Minister consents to the application for an extension of time being heard with the substantive application.

PROPOSED GROUNDS OF APPEAL

17    The amended draft originating application contains three grounds. The applicant does not press Ground 2. Proposed Grounds 1 and 3 provide:

1. The Respondent denied the Applicant procedural fairness by failing to invite the Applicant to provide further information concerning whether any international non-refoulement obligations are engaged in this case.

  Particulars

    a. The Applicant made representations in relation to international non-refoulement obligations that were summarised by the Respondent in his “Statement of reasons for decision not to exercise power to revoke a mandatory cancellation visa decision under s 501(3A) of the Migration Act 1958” (“Statement of Reasons”) (Court Book (CB) pages 25 – 39), at paragraphs 30 – 31 (under the heading ‘International non-refoulement obligations’).

    b. The Respondent stated in the Statement of Reasons at [32] in regard to Australia’s international non-refoulement obligations being enlivened in this case: “I am unable to make any finding in this regard with the very limited information available. I consider that the information provided by (the Applicant) is sparse and incomplete.”

    c.  The Respondent denied the Applicant procedural fairness by failing to invite the Applicant (who was imprisoned, has very limited English language understanding, and had limited access to country information) to provide further information concerning whether any international non-refoulement obligations are engaged in this case.

…

3. The Respondent erred in law by failing to give proper, genuine and realistic consideration to the decision under s 501CA(4) of the Act whether to revoke the cancellation of the Applicant’s visa.

  Particulars

    a.     In his Statement of Reasons at [65], the Respondent stated: “I find that the sentence Mr MCQUEEN received is a further indication of the seriousness of the offending.”

    b.     The reference to another person, Mr McQueen, instead of the Applicant in that part of the Statement of Reasons demonstrates that the Respondent failed to give proper, genuine and realistic consideration to the decision under s 501CA(4) of the Act whether to revoke the cancellation of the Applicant’s visa.

LEGAL PRINCIPLES

Extension of time for application

18    Section 477A(2) of the Act empowers the Court to extend the 35 day period in which a person may file an application for review of a migration decision, provided that the Court is satisfied “that it is necessary in the interests of the administration of justice to do so”: s 477A(2)(b) of the Act.

19    The factors that the Court will take into account in assessing whether it is in the interests of the administration of justice to grant an extension of time are well established: Downing v Minister for Immigration and Border Protection [2019] FCA 1684 at [5] – [7] (Jackson J) and the authorities cited therein. The principles applicable to the consideration of an application for an extension of time to appeal have been applied to similar discretions to extend time, including applications to extend the time in which to lodge a judicial review application: see Downing at [5] (Jackson J); MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585, 593 at [41] – [42] (Mortimer J) and the cases cited therein. The factors that the Court will have regard to include: (1) the length of, and explanation for, the delay; (2) any prejudice to the respondent if an extension is granted; and (3) the merits of the proposed substantive application.

20    In assessing the merits of a proposed application, it is sometimes said that the prospects of the proposed appeal must be assessed at a reasonably impressionistic level: MZABP, 598 at [62] (Mortimer J). The Court is not concerned with whether the applicant will ultimately succeed, but whether he or she has a reasonably arguable case: MZABP, 598 at [63]. It is not in the interests of justice to extend the time to appeal from a judgment which is plainly right or where the proposed appeal is bound to fail. In such a case it would be futile to do so: SZUTY v Minister for Immigration and Border Protection (No 2) [2016] FCA 289 at [55] (Katzmann J).

Merits of the proposed grounds

Proposed Ground 1 – procedural fairness

21    The obligation of the Minister to afford an applicant procedural fairness when exercising the power conferred by s 501CA(4) was described by Wheelahan J in Renton v Minister for Home Affairs [2021] FCA 931 (at [34] – [35]):

34     In contrast to the original decision to cancel the visa under s 501(3A) of the Migration Act, the rules of natural justice are not excluded in relation to a decision under s 501CA(4) as to whether the original decision should be revoked, and they accordingly apply: Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [31] (Tracey J); cf, s 501(5). The obligation of the Minister to afford the applicant procedural fairness was a condition of the lawful consideration of whether to revoke the decision to cancel the applicant’s visa pursuant to s 501CA(4), and arises as a matter of implication through the application of common law principles of statutory construction.

35     Procedural fairness is concerned with fair processes, and not with the actual decision: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [25] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). The statutory framework within which the Minister discharged his function is important when considering what procedural fairness required, and the question whether a procedure was fair is necessarily tied to the particular facts of the case: SZBEL at [26]. Here, the Minister was required to consider the representations made by the applicant in determining whether he was satisfied that there was “another reason” why the original decision should be revoked, and was required to engage in an active intellectual process with significant and clearly expressed relevant representations: Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [34] and [37] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ). Obviously enough, upon considering the applicant’s representations the Minister was not required to accept them, but in refusing to revoke the original cancellation decision was required to set out his reasons: s 501G(1)(e). The Minister was not required to give advance notice of his thought processes or provisional views for the purpose of inviting comment before making the decision in question: SZBEL at [29]-[32], citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 591-592 (Northrop, Miles and French JJ). Nonetheless, depending upon the circumstances of the case, procedural fairness may require that a person who is the subject of the decision be given an opportunity to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which would not obviously be open on the known material: Alphaone at 592, cited in SZBEL at [29].

22    More recently, the majority of the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 addressed the level of engagement a decision-maker must have when making a decision under s 501CA(4) of the Act (at [24] – [27] (Kiefel CJ, Keane, Gordon and Steward JJ), footnotes omitted):

24     Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.

25    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

26     Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.

27    None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision maker's reasons discloses that the decision maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

23    The High Court’s decision in Plaintiff M1/2021 was delivered after the hearing of this application. The parties were afforded an opportunity to make further written submissions in respect of the decision. The Minister took up that opportunity. The applicant did not.

Proposed ground 3 – requisite level of engagement

24    Ground 3 is framed as a failure to give “proper, genuine and realistic consideration”. It must be borne in mind that this label does not give the Court undertaking the review a general warrant to scrutinise the procedural and substantive merits of the decision in issue. The Court’s role in undertaking the review is limited: Plaintiff M1/2021 at [26]. In Plaintiff M1/2021, the majority referred to “[t]he requisite level of engagement — the degree of effort needed by the decision-maker” and noted that what was required of a decision-maker varied according to the length, clarity and degree of relevance of the representations, amongst other things (at [25]).

25    By Ground 3 the applicant contends that the Minister has erred in law by, in effect, failing to have the requisite level of engagement and that the Minister’s failure is evident in the erroneous reference in the statement of reasons to another person (with no apparent relevance to the application) by name instead of to the applicant by name.

26    In SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 63; 238 ALR 611, the appellant, a national of Pakistan, sought review of a decision of the then Refugee Review Tribunal affirming a decision to refuse his application for a protection visa. However, the Refugee Review Tribunal had misstated his nationality in its reasons, referring to the appellant as an Indonesian and noting a well-founded fear of persecution should the appellant return to the People’s Republic of China. At [44] – [45] of his reasons for judgment, Greenwood J stated:

44     The obligation to undertake an un-distracted, focussed and deliberative assessment of only those facts and circumstances referrable to the case of the Appellant is an essential element of the discharge of the review function.

45     Accordingly, the decision of the Tribunal is a nullity (Minister for Immigration & Multicultural Affairs v Yusuf [[2001] HCA 30; 206 CLR 323]). Notwithstanding that the Tribunal has in its decision record reflected an analysis of the claims made by the Appellant, the erroneous references to Indonesian nationality and the notion of a well-founded fear of persecution should the Appellant return to the People’s Republic of China can only lead to the conclusion that the errors have affected the exercise of the power. The references to these matters are neither merely typographical errors nor errors of fact at the margin of the Tribunal’s review. Since the errors go to the nationality of the Appellant and the source of nation state conduct or nation state tolerance of conduct by others giving rise to a claim of a well-founded fear of persecution, the errors affect the exercise of the power. The errors must be taken to have affected the exercise of the power as the Tribunal has recited the errors as material matters for the purposes of s 430(1) of the Act. The notion of an ‘affect’ upon the exercise of a power seems to me to comprehend a well-placed apprehension on the part of the court in the exercise of supervisory review that the identified errors going to jurisdiction influenced the mind of the decision-maker in purporting to exercise the power. The two errors are central matters in the review of the decision of the Minister’s Delegate.

27    The approach of Greenwood J in SZIFI was followed in CUV18 v Minister for Home Affairs [2018] FCA 2009 at [38] (Jagot J) and in Bhangu v Minister for Immigration and Border Protection [2017] FCA 108 at [36] (Moshinsky J).

CONSIDERATION

Length of and explanation for the delay

28    Taking into account that the length of the delay falls short of four months and arises in circumstances where the applicant is illiterate, uneducated, without English, imprisoned and was for a substantial period, without legal representation, I am satisfied that the applicant has provided a satisfactory explanation for his delay in bringing the application. This is a factor that weighs in favour of granting an extension of time to file the application.

Any prejudice to the respondent if an extension is granted

29    The Minister does not submit that there is any prejudice flowing from the grant of an extension in the present circumstances. This is another factor that weighs in favour of granting an extension of time.

The merits of the proposed substantive application

30    The critical factor in the context of the present application is the assessment of the merits of the proposed substantive review application, noting that such assessment is undertaken in accordance with the principles summarised at [20] above.

31    I will consider the merits of each of the proposed grounds of appeal in turn.

Ground 1 – failure to afford procedural fairness

32    By Ground 1, the applicant submits that it was a denial of procedural fairness for the Minister to conclude he was unable to make any finding in respect of whether Australia’s international non-refoulement obligations were engaged based on the limited information available without inviting the applicant to provide further information on that issue.

33    The critical passage of the Minister’s reasons is at R[32]. It appears in context as follows (emphasis added):

International non-refoulement obligations

30.     As noted above, and as part of his representations seeking revocation of the original decision to cancel his visa, [the applicant] states that he would be 'in danger of prejudice and termination due to the hostilities' in Burundi and would be exposed to 'brutal retaliation by the Rebel Militia with the probability of almost imminent death' and that 'reprisal would be a certainty'. He also indicated that there is unrest and a civil war in Burundi.

31.     [The applicant] was born in Burundi in 1981 and as outlined by the Judge, had experienced a 'tragic and traumatic childhood' from the age of 10 when his parents and sisters were killed in the civil war.

32.     Insofar as [the applicant], in claiming he will face harm in Burundi, is suggesting that Australia's international non-refoulement obligations are enlivened in his case, I am unable to make any finding in this regard with the very limited information available. I consider that the information provided by [the applicant] is sparse and incomplete.

33.     Moreover, I am unable to make a finding in view of the absence of independent and authoritative supporting information to support his claims with respect to prejudicial or brutal treatment, and possible death including any risk of him being targeted by the rebel militia. [The applicant] has not explained why he would be specifically targeted by the rebel militia and why his particular circumstances are such as to differentiate the risk faced by him from the general population. Since there is not enough information for me to make any findings about [the applicant]’s various claims of harm on return, both at a factual level and in terms of whether any non-refoulement obligations are engaged in this case, I have not given any weight to these claims. Having said this, I am mindful that [the applicant] is able to make a valid application for a Protection visa.

34.     A Protection visa application is the key mechanism provided for by the Act to enable Australia to meet its international non-refoulement obligations. In making such an application, [the applicant] will be able to substantiate his claims in relation to any such obligations, and the duty to remove him under s 198 of the Act will not apply while his visa application is being determine.

35.     In saying the above, I am mindful that consideration of whether [the applicant] satisfies a Protection visa criterion under s 36(2), should he apply for such a visa at a later time, cannot be regarded as a substitute for consideration of his non-refoulement claims in the present context. In this regard, I accept that case law indicates that the issue to be determined under s 501CA(4) (that is, whether there is 'another reason' why a cancellation decision should be revoked) is less categorical than the issue of whether a person satisfies a relevant criterion under s 36(2), and that the material or representations advanced in support of a claim in the context of s 501CA are not required to meet predetermined benchmarks. Furthermore, I am mindful that Australia's international non-refoulement obligations may not be fully encompassed by the visa criteria in s 36(2). Nevertheless, [the applicant]’s claims, once substantiated, will be conclusively assessed in the context of any application for a Protection visa to the extent that those claims are relevant to the criteria for visa grant.

36.     Should [the applicant] choose to apply for a Protection visa, I expect that his application will be processed according to the Department's normal practice. Relevantly, I am aware that the Department's practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other provisions that could result in the Protection visa being refused, including character-related criteria. To reinforce this practice, a Ministerial direction has been given under s 499 of the Act (Direction 75) which, among other things, requires that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering other relevant matters.

37.     I have also considered and taken into account the possibility that at that time a Minister may personally consider [the applicant]’s Protection visa application, rather than a delegate. In such a case, the Minister would not be bound by Direction 75 and would not necessarily determine whether non-refoulement obligations are owed in respect of [the applicant]. However, such a situation would only arise in the unlikely event that a Minister determines to depart from the usual practice regarding the processing of Protection visa applications and determines further to depart from the policy approach set out in Direction 75. I nevertheless acknowledge the slight possibility that [the applicant]’s claims regarding non-refoulement obligations may not be considered, even if he applies for a Protection visa.

38.     Further, I am aware that even if the process set out in Direction 75 is followed, that does not mean [the applicant] will be granted a Protection visa as long as he is found to enliven a non-refoulement obligation that is reflected in the Protection visa criteria. I am cognisant of the possibility that, even if found to enliven such an obligation, [the applicant] may be refused a Protection visa because he is excluded under other relevant provisions such as those relating to character. In the event that his Protection visa application is refused, the duty to remove him as soon as reasonably practicable will arise, notwithstanding any non-refoulement obligation.

34    The Minister’s reference in the opening paragraph of this extract — “As noted above” — is a reference to R[21], where in the course of considering the extent of impediments if removed, the Minister expressly referred to the applicant’s submissions that:

…there is no possible life for him and his family in Burundi and wishes to remain in Australia to live a peaceful and successful existence without the 'threat of termination'. He states that in Burundi unrest and civil war are normal and the lives of his family would be in jeopardy. [The applicant] fears that he would face 'prejudice and termination due to the hostilities' in Burundi and be exposed to reprisals and possibly death at the hands of the rebel militia.

35    The Minister then stated (at R[21]):

…In the absence of substantiating information I am not prepared to make any finding about the nature and seriousness of the harm and the likelihood of it eventuating, should [the applicant] return to Burundi. In saying this, I note he is able to apply for a Protection visa should he wish to pursue that avenue as further addressed below in the context of 'international non-refoulement obligations’.

36    The applicant submits that the Minister’s finding that the information provided by the applicant is “sparse and incomplete” was a finding adverse to him and that it was unfair for the Minister to proceed to make a decision without inviting him to provide further information on the non-refoulement issues in circumstances where the Minister had identified a deficiency in the material provided.

37    The applicant relies on the following representations made to the Minister in which he contends that he raised non-refoulement issues (as written):

I, [the applicant], do hereby request the option to revoke the mandatory cancellation of my visa: My main reasons being … I myself would be in danger of Prejudice and Termination due to the Hostilities in my Country.

A comprehensive report to this will be forwarded to your Department on request.

and:

The impact of a non-revocation of my current mandatory Visa cancellation will be catastrophic to say the least.

…

The other primary issue to this enigma is the fact that being deported would leave me exposed to brutal retaliation by the Rebel Militia, with the probability of almost imminent death.

…

For my Family to follow me if I am Deported, would see the denouement of our children's Education as well as our own opportunity for Adult Education to better our lives here in Australia as compared to Burundi, where unrest, staying alive and civil war are intractable, but normal.

The lives of my Family would without doubt be in great jeopardy, the synopsis to this unequivocal.

38    In the context of describing his relationship with his children, the applicant said:

For the children to live productive lives; here in Australia where there is good opportunity, contrary to life in Burundi civil conflict

39    In response to a question about concerns or fears about what would happen if he was returned, and other problems he may experience if returned, the applicant relied on a letter that he described as highlighting “the consequences of my return to the civil unrest in my country: where reprisal would be a certainty”.

40    The applicant added (as written):

I would encourage the decision-maker to please take into account the fact that there is no life possible at all for me and my family on return to Burundi: my wife and I will no doubt be dedicated to the opportunity given here to see our lives ‘turned around’ to give ourselves and our children a productive and peaceful life: to a successful existance, without the threat of termination.

and:

Whereas on release from Prison, I will engage my passion to provide a quality utility of life for my Family that is a vast disparity from that of the Refugee camps back in Burundi and in turn showing allegiance to the Australian Community.

41    The applicant submits that procedural unfairness is demonstrated in circumstances where there was a long period of time between the lodging of the request for revocation (14 May 2019) and the date of the Minister’s decision (8 December 2020). Further, that it was unfair for the Department to invite the applicant to comment on a document that raised adverse information (the applicant’s National Criminal History Check) but not to respond to the applicant’s question, as to whether the history check was a positive factor in favour of revocation. The applicant also submits that his question in respect of the National Criminal History Check is indicative of his uncertainty regarding the purpose of the invitation. The applicant submits that the Department’s invitation to comment on the National Criminal History Check was in any event unnecessary because there was no new information exposed in the National Criminal History Check which had not already been sent to the applicant for response. The applicant acknowledges that he did not give a great amount of detail in respect of his non-refoulement claims, but submits that that is readily explained by his lack of English proficiency, his imprisonment and that he was self-represented and did not have the ability to locate relevant country information.

42    The Minister submits that there was no denial of procedural fairness by reason of not inviting the applicant to provide further information in relation to any non-refoulement issues. The Minister contends that the principle outlined in Renton at [35] by Wheelahan J, based upon Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592 quoted by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152, 161 at [29] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ), does not apply to the circumstances here. The Minister emphasises that in Renton, Wheelahan J stated (at [35]) that “procedural fairness may require that a person whom is the subject of the decision be given an opportunity to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which would not obviously be open on the known material” (emphasis added).

43    The Minister relies on EXT20 v Minister for Home Affairs [2021] FCA 629 in which, the Minister says, a similar argument as that raised by Ground 1 was rejected by this Court. At the time of the hearing, EXT20 was the subject of appeal. Following the hearing, the applicant’s representatives provided a copy of the decision of the Full Court: EXT20 v Minister for Home Affairs [2022] FCAFC 72 (EXT20 FCAFC). Neither party sought to provide additional submissions on EXT20 FCAFC.

44    Like the present application, EXT20 was a case where the non-revocation decision was made by the Minister personally. EXT20 concerned an application for review of the Minister’s decision not to revoke the mandatory cancellation of the visa of a Congolese national who claimed that if returned he would face torture and persecution in the Democratic Republic of Congo (DRC). The visa in issue was a Class BC subclass 100 Partner visa. The Minister summarised EXT20’s claims about his ethnicity, the discrimination faced by members of the Banyamulenge tribe in the DRC, killings and assaults in the DRC and the risks to safety in the DRC in light of the ongoing conflict in that country. The ultimate finding by the Minister was in the following terms (extracted at [26] of EXT20):

82     Accordingly, in relation to [the applicant]’s claims that he fears being harmed in the nature of discrimination, torture, persecution or other significant harm due to ethnic discrimination, I am unable to make a finding, given the lack of specific detail in relation to the claims or the source of the fears stated, as well as not having any supporting evidence such as credible country or other information or evidence in support of the claimed past fear of harm or harm that was said to have eventuated.

83    Although there is currently insufficient information for me to determine whether [the applicant] faces a risk of harm upon return to the DRC, I take into account that he is able to make a valid application for a Protection visa. A Protection visa application is the key mechanism provided for by the Act to enable Australia to meet its international non-refoulement obligations. In making such an application, [the applicant] will be able to substantiate his claims in relation to any such obligations, and the duty to remove him under s198 of the Act will not apply while his visa application is being determined.

84    In saying the above, I am mindful that consideration of whether [the applicant] satisfies a Protection visa criterion under s 36(2), should he apply for such a visa at a later time, cannot be regarded as a substitute for consideration of his non-refoulement claims in the present context. In this regard, I accept that case law indicates that the issue to be determined under s 501CA(4) (that is, whether there is ‘another reason’ why a cancellation decision should be revoked) is less categorical than the issue of whether a person satisfies a relevant criterion under s 36(2), and that the material or representations advanced in support of a claim in the context of s 501CA are not required to meet predetermined benchmarks. Furthermore, I am mindful that Australia’s international non-refoulement obligations may not be fully encompassed by the visa criteria in s 36(2). Nevertheless, [the applicant]’s claims, once substantiated, will be conclusively assessed in the context of any application for a Protection visa to the extent that those claims are relevant to the criteria for visa grant.

45    Again, in a similar way to the present application, the Department engaged with the applicant in EXT20 in relation to the decision under review over a protracted period (22 months). The Department sought a response from the applicant about adverse information that it had received, including in respect of the applicant’s National Criminal History Check. The Department did not, however, engage with the applicant to seek additional information about his claim to fear harm if returned. The applicant in EXT20 had indicated to the Department that he could provide further information if required.

46    The primary judge dismissed the applicant’s judicial review application in respect of the non-revocation decision. In EXT20, at [56] of his Honour’s reasons, O’Bryan J noted that notwithstanding that there was no lack of time or opportunity for the Department to seek elaboration or substantiation of the applicant’s claim to fear harm, that it did not do so and did not inform the applicant that positive findings may not be able to be made on his claims without elaboration or substantiation. Nevertheless, after reviewing the authorities, and having regard to the claims advanced by the applicant said to give rise to procedural unfairness, and to the features of the statutory framework (at [57] – [71]), O’Bryan J concluded at [72] that the failure by the Minister to seek elaboration and substantiation of the applicant’s claims to fear harm, in circumstances where the Minister ultimately rejected the claims because of a lack of elaboration and substantiation, was not a breach of the requirements of procedural fairness:

…Applying Maioha and Navoto, the Minister was not under a legal duty, referable to jurisdictional error, to ask for further representations from the applicant or to make inquiries into the representations that were made. The requirements of procedural fairness were discharged by the statutory procedure by which the applicant was invited to make representations and did so. In my view, this is not a case in which the Minister failed to make an obvious inquiry about a critical fact, the existence of which was easily ascertained, such that the Minister constructively failed to exercise jurisdiction…

47    On appeal, the appellant submitted that the primary judge should have found the Minister did not afford him procedural fairness, relevantly, by failing to notify him that his representations on the issue of fear of harm lacked detail and supporting information, which could result in his revocation request being refused.

48    By majority, the Full Court rejected the appellant’s contention that he was denied procedural fairness and that the primary judge had erred in so deciding: EXT20 FCAFC at [125] (Wigney J), [172] (Snaden J) and at [75] (Mortimer J disagreeing).

49    The circumstances in EXT20 and in the present review application are strikingly similar. The circumstances in EXT20 are summarised by Snaden J at [174]:

(1)     the appellant’s request for revocation of the cancellation of his visa—and the material that he advanced in support of it (much of which was hand-written)—was made without legal assistance;

(2)     much of it was put together when he was in prison;

(3)     the appellant’s command of English is limited;

(4)     the material that the appellant relied upon was advanced (and, therefore, was available for consideration) over an extended period;

(5)     the appellant indicated in that material that he could provide further information if requested;

(6)     after receiving a briefing from his department, the Minister decided personally to consider the appellant’s revocation request (rather than have a delegate decide the matter); and

(7)     in consequence, the appellant could not avail himself of an additional opportunity to argue the merits of his application before a second (administrative) decision maker (which would have been the case had the determination been made by a delegate, rather than by the Minister personally).

50    Each of those circumstances is at least present in the applicant’s case, and some of the factors are arguably worse - the applicant does not speak English, he is illiterate in his own language and he was in prison for the entire period. That said, I am mindful that the task on review is to identify and apply the established principles to the circumstances of the case at hand, and not to search for a similar case and mechanically apply that outcome mutatis mutandis. In this regard, I note the observations of Mortimer J in EXT20 FCAFC at [72].

51    It was common ground in that case, both at first instance and on appeal, that the Minister was required to afford the appellant procedural fairness: EXT20 FCAFC at [126] (Wigney J) and [173] (Snaden J). In issue was what procedural fairness required in the specific circumstances of the appellant’s case. In EXT20 FCAFC, Wigney J identified the question for determination, in essence, in the following terms ([111]) as “…whether procedural fairness required the Minister, or the Department, to notify the appellant that his claims may not be sufficiently particularised or substantiated, and afford the appellant an opportunity to address that issue and supplement his representations accordingly”. Justice Snaden (at [172]) framed the question as whether “the Minister’s obligation to afford procedural fairness required that the appellant be alerted in advance to—and be given an opportunity to address—the Minister’s view that the material and submissions that he (the appellant) had supplied as to the risks of harm to which he would be subjected if he returned to the DRC lacked detail sufficient to enable the making of relevant findings”.

52    The relevant principles were identified by Wigney J (at [127] – [128]) as follows:

127    In general terms, procedural fairness required that the Minister adequately inform the appellant of the following things: first, the nature and content of any “adverse material from other sources” that was before the Minister; second, any “issue critical to the decision” which was not otherwise apparent from the nature and circumstances of the decision-making process; and third, any “adverse conclusions which has been arrived at which would not obviously be open on the known material”: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2 (Northrop, Miles and French JJ); SZBEL v Minister for Immigration and Citizenship (2006) 228 CLR 152; [2006] HCA 63 at [31]-[34] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); Viane at [32]. The overriding requirement was that the appellant be given “the opportunity to being heard”, which in turn required that the appellant be “given the opportunity of ascertaining the relevant issues” and be “informed of the nature and content of adverse material”: Alphaone at 590-591; SZBEL at [32].

128    The precise content of the requirement to afford procedural fairness in any given case depends on the statutory framework within which the decision in issue is made and the facts and circumstances of the case: SZBEL at [26]. The critical issue in this case, therefore, is what the Minister was required to do to ensure that the decision-making process in respect of the possible revocation of the appellant’s visa cancellation was procedurally fair, having regard to the statutory scheme in respect of revocation decisions and the particular facts and circumstances of the appellant’s case. Was the appellant given the opportunity of ascertaining the relevant issues and informed of the nature and content of any adverse material before the Minister? Was he given, in all the circumstances, a fair opportunity to be heard?

53    The relevant features of the statutory scheme were identified by Wigney J (at [131] – [133]) as follows:

131    The statutory scheme in s 501CA, in short summary, involves: first, the Minister giving the person whose visa has been cancelled notice of the “original decision” (being the cancellation decision) and particulars of “relevant information”, being information “specifically about the person” that the Minister considers “would be the reason, or a part of the reason, for making the original decision”; second, the Minister inviting the person to make representations “about revocation of the original decision”; third, the receipt of representations by the Minister made in accordance with that invitation; and fourth, the “formation of a state of satisfaction, or not, by the Minister that the cancellation decision should be revoked”: see Viane at [13].

132    The appellant did not contend that the Minister had failed to comply with the requirement to give him particulars of “relevant information” or (subject to the timing issue that is the subject of appeal ground 4) the requirement to invite him to make representations.

133    As for the balance of the statutory scheme, the important point to emphasise is that the scheme involves the person whose visa has been revoked making representations about why the cancellation of his or her visa should be revoked and the Minister forming the relevant state of satisfaction based on those representations. It is for the person whose visa has been cancelled to put before the Minister, by way of representation, what the person wants the Minister to consider: Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643; [2018] FCAFC 216 at [48] (Rares and Robertson JJ). The Minister’s duty or obligation is to “consider whether or not he or she has the requisite state of satisfaction to revoke the cancellation by reference to the material in the representations”: Omar at [34(g)] (emphasis added). The Minister is not necessarily obliged to ask the person for further or more detailed representations, or to make any further inquiries into the facts or circumstances contained in the representations: Maioha at [48]; see also Navato v Minister for Home Affairs [2019] FCAFC 135 at [100] (Middleton, Moshinsky and Anderson JJ); Pennie v Minister for Home Affairs [2019] FCAFC 129 at [14] (Davies, Derrington and Colvin JJ).

And (at [154]):

…the point remains that the statutory scheme in relation to visa revocation decisions places the onus on the person whose visa has been cancelled to include in their representations all the information and material that they want the Minister to have regard to when considering whether there is, or is not, another reason for revoking the cancellation. It was, in those circumstances, for the appellant to put his best case to the Minister at the outset. The Minister was not required to tease out the appellant’s case by notifying the appellant of deficiencies in the material he had provided and requesting further particulars or supporting material to address those deficiencies.

54    In this respect, Snaden J (at [178] - [180]) observed that:

178    …The power that the Minister here declined to exercise—namely, the power of revocation that s 501CA(4) of the Migration Act confers—was one whose exercise the appellant requested. In doing so, it was for the appellant to paint as fulsome a picture as he could in support of his request: Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643 (“Maioha”), 655 [48] (Rares and Robertson JJ). Failure to do so necessarily—and quite obviously—carried with it a risk of disappointment.

179    No doubt precisely for that reason, the appellant sought to impress upon the Minister (or, more accurately, upon whomever would decide his request) the matters that he felt should oblige the statutory indulgence for which he moved. That he did so in a manner that the Minister considered was deficient is neither here nor there. The Minister was entitled to form that view about what the appellant had advanced—and, indeed, any other view that might have been formed within the wide bounds of what was legally reasonable. Not only was he entitled to form it; he was entitled to act upon it.

180    The need to present a fulsome and cogent case for revocation (and the consequence that a failure to do so might lead to an unfavourable result) is no less obvious to an incarcerated or self-represented applicant as it is to one who is otherwise. It is obvious from the point that the request for revocation is made and it remains so until that request is determined, no matter for how long that process endures or what trajectory it takes before coming to the Minister’s (or anybody else’s) attention. The fact that, for reasons over which he or she has little or no control, an applicant might struggle or fail to present the best narrative that might otherwise be available has no bearing on that reality. There is, in my view, nothing about any of the circumstances to which the appellant here points (above, [174])—either individually, or in combination—that suffices to invoke the principle described in Alphaone.

55    The particular facts and circumstances of the appellant’s case will also inform the content of the obligation in the particular setting.

56    After considering the particular facts and circumstances, Wigney J observed (at [155]):

155    It might perhaps be said that it would have been better, or fairer, for the Minister to have given the appellant a further opportunity to address what were seen to be deficiencies or inadequacies of the information and material that the appellant had provided in respect of his claim that he was at risk of harm in Congo. It would have been open to the Minister, in the exercise of his discretion, to do so. The relevant question, however, is not what procedure might have been better or fairer. The relevant question is what was legally required to be done to afford procedural fairness to the appellant, having regard to the relevant statutory scheme and the particular facts and circumstances of the case.

57    I begin by making the observation that the Minister’s statement that he was “unable to make any finding” is inaccurate. Read in context, and having regard to the statutory task, it is clear that the Minister did in fact make a finding that he was not satisfied that the applicant’s fear of harm if returned constituted another reason to exercise the revocation power in s 501CA(4) of the Act. He found he could not give the applicant’s fear of harm “any weight” (R[33]): See also EXT20 FCAFC at [33] (Mortimer J).

58    Next, I note that in the circumstances of this application, it was for the applicant to put before the Minister all the information and material upon which he relies to contend that the Minister should exercise the power of revocation: EXT2020 FCAFC at [133] and [154] (Wigney J); [178] – [180] (Snaden J). The Minister did not deny the applicant procedural fairness by not asking the applicant for additional information or independent verification. The proposition that the Minister denied the applicant procedural fairness by failing to ask the applicant to provide further information to establish the claim ignores the relevant statutory scheme and the clear manifestation of a contrary statutory intention in s 5AAA of the Act: see Plaintiff M1/2021 at [38] (Kiefel CJ, Keane, Gordon and Steward JJ).

59    Notwithstanding that the Minister did not make a definitive assessment of the applicant’s claim of fear of harm because of the inadequacy of the information and material supplied, the Minister did give the claims the requisite level of consideration: Plaintiff M1/2021 at [29] – [30] and [36] (Kiefel CJ, Keane, Gordon and Steward JJ).

60    It is evident from the Minister’s statement of reasons that the applicant’s claim of fear of harm if returned was not overlooked or ignored. Rather, the Minister expressly identified the applicant’s claim, and separately referred to the applicant’s representations as to the relevant history which may have given rise to an obligation to consider the claim: R[30] – [31]. However, the Minister was not satisfied on the material before him that the representation was made out: R[32]. The Minister identified the deficiencies in the applicant’s representations, both at a factual level and in terms of the engagement of the non-refoulement obligations, that caused him not to afford those representations any weight: R[33]. In those circumstances, the Minister deferred assessment of whether Australia’s international obligations were engaged in the applicant’s circumstances because it was open to the applicant to apply for a protection visa: R[34] – [38]. The Minister’s approach is permitted by the Act: see Plaintiff M1/2021 at [28] – [30] (Kiefel CJ, Keane, Gordon and Steward JJ); [47] (Gageler J).

61    For these reasons, I am satisfied that Ground 1 of the amended draft originating application is lacking in sufficient merit to warrant granting an extension of time under s 477A(2) of the Act.

Ground 3 – failure to give representations the requisite level of engagement

62    Ground 3 is based upon a sentence in R[65] concerning the applicant’s criminal conduct. The relevant paragraph states (emphasis added):

65.     While [the applicant] has only one conviction, it was of a type that I regard as very serious, being a sexual offence against a child in his care. I find that the sentence Mr MCQUEEN received is a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the Court viewed the offending as serious.

63    The applicant’s name is not Mr McQueen. The reference to Mr McQueen in the statement of reasons occurs in the context of the Minister’s assessment of the seriousness of the applicant’s offending. The applicant contends that the inclusion of Mr McQueen’s name indicates that the Minister did not give proper, genuine and realistic consideration to the representations before him. The applicant submits that the Minister failed to undertake an un-distracted, focussed and deliberative assessment of only those facts and circumstances referrable to the applicant. Had he done so, the applicant argues, the Minister would have noticed the erroneous inclusion of Mr McQueen’s name and corrected it; alternatively, he would have sought some clarification from the officer who provided the submission and, perhaps, been presented with a corrected document for further consideration. On that basis, the applicant says the Minister fell into error and that the error was material. In support of Ground 3, the applicant principally relies on SZIFI.

64    It is the Minister’s position that there was no failure to give proper, genuine and realistic consideration, that the reference to Mr McQueen in the statement of reasons is a typographical error and that the authorities the applicant relies on are distinguishable. The Minister submits that, in contrast to SZIFI, the circumstances of the present case do not give rise to a jurisdictional error as the reference to Mr McQueen did not affect the exercise of the revocation power.

65    Read fairly and in context, with due regard to the whole of the Minister’s reasons, I am satisfied that the erroneous reference to “Mr McQueen” does not amount to jurisdictional error. My reasons are as follows.

66    In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323, 351 at [82] (McHugh, Gummow and Hayne JJ) the High Court emphasised “that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law”. The circumstances of SZIFI provide an example. In SZIFI a national of Pakistan claimed to fear harm in relation to his country of nationality. The Tribunal erroneously referred to the appellant as being of Indonesian nationality and as claiming a well-founded fear if returned to the People’s Republic of China. That led to the conclusion that such fundamental errors had “affected the exercise of the power”, because the Tribunal had recited the errors as material matters for the purposes of s 430(1) of the Act (at [45]). The two errors were “central matters in the review of the decision of the Minister’s Delegate”: SZIFI at [45].

67    I am satisfied that the circumstances of the present application are distinguishable. The single error, while unfortunate, does not support the conclusion that the Minister’s exercise of power was affected in a material way. On a fair reading of the entirety of the Minister’s statement of reasons, it is plain that the Minister’s failure to correct the one reference to “Mr McQueen” was a slip. Throughout the reasons the Minister refers to the applicant by the correct name (174 times), the Minister correctly records the applicant’s personal and familial details and the circumstances of the applicant’s offending. The Minister makes direct reference to the representations made by the applicant in support of revocation of the cancellation decision and where detail is included, that detail is correct. The sentence in which the single erroneous reference to Mr McQueen occurs is objectively correct in respect of the applicant. That is, the punishment that the applicant received is a further indication of the seriousness of his offending. The Minister expressly, and correctly, recounted that the applicant was sentenced to four years imprisonment, with a two year non-parole period earlier in the statement of reasons: R[59].

68    For these reasons, I am satisfied that Ground 3 is lacking in merit sufficient to warrant granting an extension of time to file an application for review of the Minister’s decision.

CONCLUSION

69    In conclusion, while I am satisfied that the applicant has provided a satisfactory explanation for his delay in filing the originating application and have taken into account that the Minister does not point to any particular prejudice, the proposed grounds of review do not have sufficient merit to warrant an extension of time being granted. Accordingly, the amended application for an extension of time dated 6 August 2021 is dismissed with costs.

Associate:

Dated:    31 May 2022