FEDERAL COURT OF AUSTRALIA

BLD20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 294

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNETT J:

Background

1    The applicant arrived in Australia in September 2012 and was granted a protection visa in March 2017. On 21 November 2018 a delegate of the first respondent (the Minister) cancelled the applicant’s visa under s 116(1)(e) of the Migration Act 1958 (Cth) (the Act) on the basis that his presence in Australia might be a risk to the safety of a segment of the Australian community. He applied to the second respondent (the Tribunal) for review of that decision.

2    On 13 February 2020 the Tribunal made a decision to affirm the decision of the delegate, and the following day it sent a formal notification of its decision to the applicant through his representative. On 19 February 2020 it sent to the applicant (again through his representative) a “corrigendum” to the written record of its decision.

3    The delegate had assessed the question whether the applicant posed a risk to a segment of the community (women) on the basis that he had been charged with certain sexual offences. In between the delegate’s decision and the hearing before the Tribunal, he was convicted of some of those offences and sentenced to an aggregate term of imprisonment of 4 years, 3 months. Although the applicant continued to deny the allegations against him, the Tribunal proceeded on the basis that it would not go behind the conviction. It assessed whether the ground of cancellation was made out, and the exercise of discretion, on that basis.

4    On 20 March 2020 the applicant’s solicitors electronically lodged with the (then) Federal Circuit Court (the Circuit Court) an application for judicial review of the Tribunal’s decision (the 20 March application). He gave the date of the decision he sought to challenge as 14 February 2020. The application was not accepted for filing because it was not accompanied by a supporting affidavit, as was required by r 4.05 of the Federal Circuit Court Rules 2001(Cth) (the Rules). Another attempt to file an application in the Circuit Court on 31 March 2020 was also unsuccessful, for reasons which do not need to be canvassed here.

5    On 1 April 2020 the applicant’s solicitors once again electronically lodged in the Circuit Court an application for review of the Tribunal’s decision (the 1 April application). Again, the decision under review was said to have been made on 14 February. This application was accompanied by the required affidavit. Being outside the 35 day limitation period imposed by s 477(1) of the Act, this application also included an application for an extension of time under s 477(2). The 1 April application was accepted for filing and given the file number SYG 815 of 2020.

6    The application for an extension of time in SYG 815 of 2020 came on for hearing before a Judge of the Circuit Court (the Circuit Court Judge) on 17 October 2022. (The Circuit Court had meanwhile become known as the Federal Circuit and Family Court of Australia, Division 2.) The applicant was by this time unrepresented. Her Honour made orders dismissing the extension of time application on 26 October 2022.

7    The Circuit Court Judge noted the submission (set out in the extension of time application) that the applicant’s application had been lodged on 20 March 2020, this was within the 35 day limitation period, and it would therefore “procedurally not be fair” if the extension were not granted (at [46]). Her Honour also noted that the delay before filing of the 1 April application was only 13 days, and counsel for the Minister accepted that this would not be determinative (at [46]). The only issue that her Honour discussed in any depth, and the sole basis for refusing the extension of time, was the merits of the substantive application.

8    The substantive grounds of review set out in the 1 April application were “Procedural Unfairness” and “Errors in the decision made” (with reference to three specific paragraphs in the Tribunal reasons). The source of any procedural unfairness and the nature of the other alleged errors were not identified in any way. It appears from her Honour’s reasons at [54] that the applicant, in his oral submissions, challenged the Tribunal’s decision by reference to six paragraphs of its reasons. Her Honour concluded at [80] that none of these complaints had merit, and it was therefore not necessary in the interests of the administration of justice to extend time.

The proceeding in this court

9    By his Amended Originating Application (filed on 24 January 2023) the applicant seeks an order quashing the decision of the Circuit Court, together with mandamus requiring the Circuit Court to determine his application to that Court according to law. He also seeks a declaration that his application to the Circuit Court was “[m]ade on 20 March 2020 for the purpose of s 477(1) of the Migration Act 1958 (Cth)” and “[m]ade within the time allowed by s 477(1) of the Migration Act 1958 (Cth)”. His claim for this relief is articulated in a Concise Statement (also filed on 24 January 2023) and was developed in written and oral submissions.

10    The core of the applicant’s argument is reflected in the terms of the declaration that he seeks. He submits that the 20 March application (which was not accepted for filing by the Circuit Court’s registry) was an “application” that was effectively “made” for the purposes of s 477(1) of the Act and was made within time. The consequence of that argument is that the extension of time application, and the decision of the Circuit Court in response to that application, were unnecessary and misconceived. None of the reasoning by which the Circuit Court Judge refused the extension of time is criticised.

The first attempt to commence proceedings and the relevant limitation period

11    The Tribunal’s record of its decision was dated 13 February 2020. It was sent to the applicant’s representative as an attachment to an email on 14 February 2020.

12    Because the Tribunal’s review took place under Part 7 of the Act, the date of the relevant “migration decision” for the purposes of s 477 is the day the decision is taken to have been made under (relevantly here) s 430(2) of the Act (see s 477(3)). Section 430 relevantly provides as follows:

430    Tribunal’s Decision and written statement

Written statement of decision

(1)    Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:

(a)    sets out the decision of the Tribunal on the review; and

(b)    sets out the reasons for the decision; and

(c)    sets out the findings on any material questions of fact; and

(d)    refers to the evidence or any other material on which the findings of fact were based; and

(e)    in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application—indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and

(f)    records the day and time the statement is made.

Note:    Decisions on review made under paragraph 426A(1A)(a) or (1C)(b), or under subsection 426A(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

How and when written decisions are taken to be made

(2)    A decision on a review (other than an oral decision) is taken to have been made:

(a)    on the making of the written statement; and

(b)    on the day, and at the time, the written statement is made.

Note:     For oral decisions, see section 430D.

(2A) The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.

    Return of documents etc

(3)    …

Validity etc. not affected by procedural irregularities

(4)    The validity of a decision on a review, and the operation of subsection (2A), are not affected by:

(a)    a failure to record, under paragraph (1)(f), the day and time when the written statement was made; or

(b)    a failure to comply with subsection (3).

13    Aside from an issue arising from the corrigendum issued a few days later there is no suggestion that the decision record of the Tribunal, dated 13 February 2020 and sent to the applicant the following day, failed to comply with the requirements of s 430(1). It records on its first page that it was “made on 13 February 2020 at 1.23pm” and there is no evidence to the contrary. Section 477(1) therefore required an application to be made “within 35 days of” that date. That form of words does not fit neatly within any of the entries in the table contained in s 36(1) of the Acts Interpretation Act 1901 (Cth), but there is single judge authority dealing with a similar form of words (predating the current form of s 36) holding that a period defined in this way does not include the day from which it is expressed to begin (Susiatin v Minister for Immigration & Multicultural Affairs (1998) 83 FCR 574, 580 (Beaumont J)). I therefore proceed on the basis that the 35 day period referred to in s 477(1) began at the end of 13 February 2020. On this basis, however, the 35th and last day of the period was 19 March 2020; so that the application needed to be filed before the end of that day. The 20 March application would therefore have required an extension of time, even if it had in all other respects been acceptable for filing. The applicant conceded as much.

14    This makes it necessary for the applicant to establish that the date of the “written statement”, for the purposes of s 430(2), was the date of the corrigendum. That can only be correct if the statement signed on 13 February 2020 was not the “written statement” required by s 430(1) and referred to in s 430(2). If the 13 February statement was the “written statement”, not only did it start time running under s 477(1), but the Tribunal had no power to vary or revoke the decision that it recorded: s 430(2A).

15    If the statement of reasons accompanying a decision of the Tribunal were shown by evidence not to have been the true or complete reasons for the decision, a question could arise as to whether the document containing the decision and reasons constituted a “written statement” under s 430(1). If that question were answered negatively, it might be said that a later document correcting the reasons or remedying the omission had the effect of bringing the “written statement” into existence; so that the “day … the written statement is made” would be the day the statement was completed by that later document.

16    I prefer to leave the resolution of that question to a case in which it is necessary. A negative answer would seem capable of having significant and arguably unintended consequences. It might mean that any failure by the Tribunal to give adequate “reasons” for its decision, or (for example) to refer to the evidence on which its findings were based, would not only cause time not to run for the purposes of s 477(1), but result in a “decision” not being “made” at all in the light of s 430(2). (In this regard it may be relevant that s 430(4) expressly preserves the validity of a Tribunal decision where the statement fails to comply with subsection (1)(f), but not in other cases of non-compliance.)

17    The question as to the effect under ss 430(2) and 477(1) of a (purported) “written statement” that does not properly record the Tribunal’s reasons does not need to be determined, because the contents of the “corrigendum” in the present case do not indicate that the reasons provided as part of the statement on 13 February 2020 were either incomplete or not a statement of the actual reasons for the Tribunal’s decision. To explain that conclusion it is necessary to say something about the reasoning of the Tribunal as set out on 13 February 2020 and the changes wrought by the corrigendum.

18    The Tribunal began by setting out the procedural background and referring to s 116(1)(e). At [9] it set out its understanding of the provision as follows:

A visa may be cancelled under s. 116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

19    The Tribunal summarised the factual and procedural background, the reasoning of the delegate, the material that had been put before it and the matters canvassed at the hearing that it conducted. It began to set out its findings and reasons at [32]. It found that the applicant had been convicted of various sexual offences alleged against him (at [33]) and concluded that, although the applicant continued to deny the offending, it was not open to the Tribunal to critically evaluate or question the findings of the criminal court (at [34]-[35]). It then addressed submissions concerning risk, including arguments that the applicant did not pose a significant risk to women because he was in a long-term relationship, he had no history or pattern of offending, and the sentence imposed on him and the risk of visa cancellation acted as deterrents. At [40] the Tribunal concluded, “on balance”, that the seriousness of the offences and the significant sentence imposed supported a finding that the applicant might be a risk to the community or individuals such as women “as contemplated by s. 116(1)(e)”. Consequently, it concluded at [41] that “the ground under s. 116(1)(e)(i) exists”.

20    That conclusion did not lead to mandatory cancellation of the applicant’s visa. The Tribunal therefore turned to whether, as a matter of discretion, the visa should be cancelled. It noted that no mandatory considerations for the exercise of this discretion were set out in the Act or the regulations made under it. It had regard to the circumstances of the case, including matters raised by the applicant and matters referred to in the Department’s Procedures Advice Manual under the heading “general visa cancellation powers”. Those matters were as follows.

(a)    The purpose of the visa holder’s travel to and stay in Australia. It was noted that the applicant had come to Australia seeking Australia’s protection, and had been recognised as engaging Australia’s protection obligations. The visa granted to him was a temporary visa, due to expire on 2 March 2022; however, it was noted that the applicant maintained that he continued to fear harm from the authorities in his country of nationality (Iran). It was accepted that there was “a compelling need” for him to remain in Australia. The Tribunal was satisfied that his stay in Australia was consistent with the objectives of the visa. It also gave some weight in his favour to his plans to have children with his current partner.

(b)    The extent of compliance with visa conditions. There was no evidence of any non-compliance with visa conditions. The Tribunal gave this factor “weight in favour of the applicant”.

(c)    The degree of hardship that might be caused. The Tribunal rejected an argument that cancellation of the visa would amount to a form of “double jeopardy” in that it would impose additional punishment for the crimes of which the applicant had been convicted. At [50] the Tribunal noted that visa cancellation has implications beyond the personal interests of an applicant, and that the “parameters” for cancellation are those set out in the legislation. However, the Tribunal did give weight to evidence (including evidence from a psychologist) concerning the applicant’s mental state and the effect that indefinite immigration detention was likely to have on him, as well as concerns for the mental health of his partner. It noted the adverse legal consequences that would flow from cancellation, including potentially being involuntarily removed from Australia and being barred from making further visa applications.

(d)    Circumstances in which the ground of cancellation arose. The Tribunal described sexual assault as “a violent and serious offence impacting on another person”. It considered it “reasonable to suggest that there has been a significant adverse impact on the victim”. It was satisfied that the offending conduct was not beyond the applicant’s control. It regarded this consideration as weighing significantly in favour of cancellation.

(e)    Past and present behaviour towards the Department. The Tribunal observed that the applicant had been cooperative with the Department, and gave this consideration weight in his favour.

(f)    Whether there would be consequential cancellations. The Tribunal was not aware of any other visas liable to be cancelled as a result of the cancellation of the applicant’s protection visa.

(g)    Whether there were mandatory legal consequences, including whether the visa holder would become liable to detention and whether indefinite detention was a possible consequence. The Tribunal was aware that adverse consequences would flow from cancellation, including indefinite detention and being removed from Australia. It gave this aspect “neutral weight”. This appears to have been because the consequences noted were “intended legislative consequences” (at [68]), and they had been dealt with earlier as part of the consideration of hardship (at [67]).

(h)    Whether any international obligations would be breached as a result of the cancellation. The Tribunal considered Australia’s non-refoulement obligations under various international conventions including the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954), as amended by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (collectively, the Refugees Convention), and its obligations under the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (the CROC). It is not necessary for present purposes to go into the detail of this analysis. The Tribunal accepted that Australia still had non-refoulement obligations in relation to the applicant, but said that these obligations needed to be considered in the context that the visa that had been granted to him in recognition of these obligations was only in effect until 2 March 2022 (at [72]). As to the CROC, the only child in Australia whose interests were potentially affected was the son of the applicant’s partner, who lived with his father. The Tribunal was not satisfied that it was in the child’s best interests for the applicant’s visa not to be cancelled (at [78]).

(i)    Other matters. The Tribunal referred briefly to the approach taken in some other cases.

21    In light of these factors the Tribunal acknowledged that there were “aspects in the applicant’s favour”, including the hardship that would result from cancellation and the existence of protection obligations. However, it was “satisfied that the evidence weighs heavily in favour of cancellation” (at [80]).

22    Apart from correcting one obvious and inconsequential typographical error (on which the applicant placed no reliance), the corrigendum issued on 19 February 2020 adjusted the wording used to describe the effect of s 116(1)(e) in two paragraphs of the Tribunal’s reasons that have been referred to in the summary above. The changes, marked up against the original text, were as follows:

40    On balance, the Tribunal is satisfied that the seriousness of the offences, convictions, and a significant sentence imposed support a finding that the applicant may be a risk to the community or individuals such as women, as contemplated by s. 116(1)(e). The standard in that section only requires, amongst other things, that the applicant may or might be a risk rather than requiring that the applicant is or would be and is not confined only to a present risk.

50 … In the Tribunal’s opinion, taking into account the convictions in assessing cancellation and its consequences does not amount to double-jeopardy. The legislation sets out the parameters; s116 (1) (e) only requires, amongst other things, that the applicant may or might be a risk rather than requiring that the applicant is or would be and is not confined only to a present risk. To elevate the legal test and bring into the cancellation decision-making doctrines such as the doctrine of double-jeopardy is not persuasive. Cancellation is intended by the legislature if there are grounds such as those under s 116(1)(e).

23    Paragraph [40] was a significant paragraph leading to the Tribunal’s conclusion that the ground for cancellation in s 116(1)(e) was made out. The correction to this paragraph changed the way in which the Tribunal paraphrased the “standard” contained in that provision. That was potentially an important matter. However, the adjustment was subtle and did not suggest any difference in what were considered to be the salient features of the present case. The observation that the paragraph “is not confined only to a present risk” might be said to be new; however, this understanding was already clearly implicit in the reasoning at [36] (which accepted, but did not regard as determinative, the point that the applicant posed little risk to women while he remained in prison).

24    The way in which the effect of s 116(1)(e) was paraphrased at [50] was of less potential significance. The point being made there was that concepts of double jeopardy were not engaged because the power of cancellation was protective rather than punitive. For that purpose, all that needed to be said was that s 116(1)(e) is focused on risk. To bring the description of its effect into line with what had been said at [40] did not constitute a change in how the Tribunal’s reasoning was expressed.

25    A decision-making body will generally not be allowed to rely, as evidence of what its reasons were, on an unsworn statement produced after the decision (particularly one produced when the decision is under challenge): see CRI026 v Republic of Nauru [2018] HCA 19; 355 ALR 216 at [61] (Kiefel, Gageler and Nettle JJ). However, here it is the applicant who seeks to rely on the later statement. He submits that it should be understood as a good-faith attempt by the Tribunal to explain the reasoning process that led to the decision that it made on 13 February 2020; not an attempt to improve on that reasoning by including thoughts that occurred to the presiding member later. I agree.

26    However, the explanation of the Tribunal’s reasons did not change in any material way. Neither of the corrections leads to any different understanding of why the Tribunal concluded that the applicant posed a risk of the kind referred to in s 116(1)(e), or why the Tribunal decided to exercise the discretion in s 116 in favour of cancellation.

27    The reference in s 430(1)(b) to “the reasons” for the Tribunal’s decision does not denote a single fixed concept that can only be stated in one particular way. What is required by s 430(1) is a statement that describes the Tribunal’s reasoning process with enough clarity and detail to achieve the purposes for which reasons are required: principally, to allow the disappointed party to understand why they have lost; to allow any errors to be exposed and corrected on judicial review; and to provide guidance in future cases (see eg Marilyn Pittard, “Reasons for administrative decisions: Legal framework and reform” in Matthew Groves and HP Lee, Australian administrative law: Fundamentals, principles and doctrines (2007) 172, 173-174). Later correction of the reasons given at the time of decision, seeking to provide a better or clearer explanation of the decision-maker’s reasoning process, is not inconsistent with the initial statement having constituted a statement of “the reasons for the decision” (cf, in a curial context, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6; 272 CLR 329 at [30]-[31] (Steward J)).

28    I therefore do not regard the contents of the corrigendum as providing any basis to conclude that the statement of the Tribunal dated 13 February 2020 was not what it purported to be: a statement of the Tribunal’s decision and its reasons, in compliance with s 430(1), and thus the “written statement” that started time running for the purposes of s 477(1). The limitation period therefore expired the day before the 20 March application was lodged with the Circuit Court.

Other issues

29    What I have said above is sufficient to require rejection of the prayer seeking declaratory relief. It also requires dismissal of the remainder of the Amended Originating Application, since the only basis upon which the Circuit Court’s decision was sought to be quashed was that its premise (ie, that an extension of time was necessary) was flawed.

30    However, the following further points should also be made.

31    First, if an application filed on 20 March 2020 would have been within time for the purposes of s 477(1), I would not accept that an application was “made” in the relevant sense by “filing” documents that did not comply with the Rules and were therefore not accepted for filing. In my view, an application to a court is “made” when the court’s jurisdiction is successfully invoked.

32    It would in my view be wrong to approach s 477(1) on the basis that it confers a right to make an application within a limited time and thus requires consideration of whether a “valid” application was made (and I did not understand the applicant to put his argument in that way). Rather, s 477(1) imposes a time limit within which the jurisdiction conferred on the Circuit Court by s 476(1) can be invoked without the need to obtain leave (in the form of an extension under s 477(2)). It operates on the premise that the jurisdiction is conferred on a court exercising the judicial power of the Commonwealth, and that courts commonly have rules concerning how proceedings are commenced and conducted.

33    At the relevant time, s 50(1) of the Federal Circuit Court of Australia Act 1999 (Cth) provided that a person could commence proceedings in the Court “by way of application” and without the need for pleadings. Section 50(2) provided that sub-s (1) had effect subject to the Rules. In addition, s 46(1)(b) provided that, where a document was required or permitted to be filed in the Circuit Court, it was to be “filed in accordance with the Rules of Court”. There was therefore clear authority for the Rules (made under s 81) to impose procedural and other conditions on what was otherwise the right of a person to commence proceedings by filing an application, including a requirement that the application be accompanied by specified material. The Court had power in r 1.07 to dispense with the Rules. Absent any exercise of that power the requirements as to the form of applications (including the requirement for an affidavit to be filed) are to be taken as conditioning the right to commence a proceeding.

34    There is no dispute that the 20 March application failed to comply with one of those requirements. This was therefore not a case where a compliant application was erroneously regarded as non-compliant. It may be that a registrar of the Circuit Court decided, at least implicitly, not to dispense with the Rules and allow the application to be filed. However, counsel for the applicant eschewed any attempt to have such a decision set aside. He accepted that the 20 March application was not accepted for filing and that that decision was open to be made.

35    Counsel for the applicant also eschewed an argument that the effect of what occurred on 20 March 2020 was to commence a proceeding in the Circuit Court. Thus, it was not submitted that s 477(1) had the effect of overriding or displacing inconsistent provisions in the Circuit Court Act or the Rules. Rather, he submitted, because an application had been “made” within the time allowed by s 477(1), the proceeding subsequently commenced (SYG 815 of 2020) was not caught by the limitation period and did not require an extension of time.

36    The awkwardness in that submission is obvious. A proceeding commenced out of time is to be treated as within time, notwithstanding the lack of any language in s 477 pointing to that result. So construed, the provision provides no coherent guidance as to what, apart from an application in proper form that is accepted for filing, constitutes an “application” in the relevant sense. Nor does the section so construed provide any limit on how long an applicant can delay, after making their initial informal application, before commencing proceedings.

37    In my view, what s 477(1) requires to be done within the time limit, in order to avoid the need to seek an extension, is to invoke the Circuit Court’s jurisdiction successfully: ie, to bring an application before the Court in accordance with its governing statute and rules (noting that that may sometimes be done by obtaining the benefit of a decision dispensing with aspects of the Rules). Accordingly, even if the time for making an application to the Circuit Court under s 477(1) had not expired before the applicant’s attempt to file an application on 20 March 2020, I would not accept that an application was relevantly “made” on that day.

38    Secondly, if persuaded of the correctness of the applicant’s argument, I would have been at least inclined to refuse to grant the relief sought in the exercise of the Court’s discretion.

39    The applicant applied for an extension of time in SYG 815 of 2020. He maintained that application, requiring the Minister to respond to it and the Circuit Court to decide it. He did not at any stage invite the Circuit Court to consider whether an extension was required. Rather, he argued that it would be unfair not to grant an extension of time because of the earlier and more timely attempts to commence a proceeding. The position he now seeks to advance is inconsistent with the position he took in the Circuit Court and, if vindicated, would make the proceedings so far in that Court a waste of time (cf eg, SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; 168 FCR 487 at [51]-[52], [98]-[99] (Black CJ and Allsop J)). The applicant was unrepresented at the time of the hearing before the Circuit Court judge, and (it can be assumed) did not consciously choose not to run the argument that his current legal team has formulated; but that does not cure the inconsistency. The originating application filed on 1 April 2020, which sought the extension of time, was prepared on his behalf by solicitors.

disposition

40    For these reasons, the application must be dismissed with costs.

Associate:

Dated:    3 April 2023