Federal Court of Australia
CZQL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1610
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The name of the first respondent be changed from Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to Minister for Immigration, Citizenship and Multicultural Affairs.
2. The application for extension of time filed on 19 July 2021 be dismissed.
3. The applicant pay the costs of the first respondent, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THOMAS J:
1 This is an application for an extension of time to seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) not to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Act). The application to extend time is brought in this Court pursuant to s 477A(2) of the Act.
BACKGROUND
2 The applicant was born in 1986 and is a citizen of Fiji. He has resided in Australia since his arrival in 1999. The applicant was the holder of a Class AS Subclass 801 Spouse visa. There was a mandatory cancellation of his visa on 21 September 2016. The applicant has been in a relationship since 2007 with his partner with whom he shares five minor children, all of whom are Australian citizens. The applicant’s mother and step-father also reside in Australia.
3 On 2 December 2015, the applicant was sentenced to 18 months’ imprisonment for three offences of driving while disqualified, with eligibility for parole on 1 October 2016. On 21 September 2016, a delegate of the then Minister for Immigration and Border Protection cancelled the applicant’s visa (the delegate’s cancellation decision) on the basis that the applicant did not pass the character test as he had been sentenced to a term of imprisonment of at least 12 months and was serving his sentence on a full-time basis in a custodial institution: see ss 501(3A)(a)(i), 501(6)(a) and 501(7)(c) of the Act. The applicant was notified of the delegate’s cancellation decision by email on the same date.
4 On 21 October 2016, the applicant made representations to the relevant Minister under s 501CA(4)(a) of the Act seeking revocation of the delegate’s cancellation decision. On 9 October 2017, a different delegate of the Minister decided not to revoke the cancellation decision (the delegate’s non-revocation decision) and the applicant was notified of that decision by letter dated 10 October 2017. The notification letter was marked by the sender as delivered “by hand”, although the letter was addressed to the post office box of the relevant prison where the applicant was held.
5 On 16 October 2017, the applicant applied to the Tribunal for review of the delegate’s non-revocation decision: see s 500(1)(ba) of the Act. In June 2017, the applicant pleaded guilty to charges of robbery in company and robbery armed with an offensive weapon. He was sentenced in November 2017 to a term of imprisonment of five years and five months with eligibility for parole on 30 June 2021.
6 The applicant was not legally represented at the hearing before the Tribunal which took place on 11 December 2017. On 19 December 2017, the Tribunal affirmed the delegate’s non-revocation decision (the Tribunal’s non-revocation decision).
THE TRIBUNAL’S NON-REVOCATION DECISION
7 The Tribunal addressed the relevant provisions of the Act, together with Ministerial Direction 65 entitled “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 65). As the applicant had made representations to the Minister’s delegate under s 501CA(4)(a) of the Act seeking revocation of the delegate’s cancellation decision, and it being undisputed that the applicant did not pass the character test under s 501CA(4)(b)(i), the Tribunal proceeded to consider whether there was “another reason” why the delegate’s non-revocation decision should be revoked: see s 501CA(4)(b)(ii).
8 The Tribunal first considered the primary consideration of protection of the Australian community from criminal or other serious conduct under paragraph 13.1 of Direction 65, including the nature and seriousness of the applicant’s prior conduct and the risk to the Australian community should the applicant commit further offences or engage in other serious conduct. The Tribunal determined that there was a “significant risk that the [a]pplicant will re-offend despite his best intentions”, noting a “propensity to continue to engage in serious misconduct regardless of his family responsibilities, the imposition of custodial sentences, warnings by the Courts and the possibility of his visa being cancelled”: at [53]. The Tribunal concluded that this primary consideration weighed “very heavily” in favour of not revoking the delegate’s non-revocation decision.
9 The Tribunal then considered the primary consideration of the best interests of minor children in Australia affected by the delegate’s non-revocation decision. The Tribunal noted at the outset the Minister’s concession that the best interests of the applicant’s five young children weighed in favour of revoking the visa cancellation: at [55]. The Tribunal went on to consider the evidence of the applicant’s partner (at [56]-[59]), and the evidence of the family worker (at [60]-[66]) and caseworker (at [67]-[68]) assigned to the applicant’s children by the Department of Family and Community Services.
10 The Tribunal considered the primary consideration of the expectations of the Australian community, observing that the applicant had “breached the trust” attendant upon the grant of an Australian visa: at [71]. The Tribunal acknowledged the difficulty in assessing the expectations of the Australian community in the circumstances of the applicant’s case, but concluded that the seriousness and repetition of his offending over many years and the risk of future offending weighed against revocation: at [70].
11 The Tribunal considered the “other considerations” under paragraph 14 of Direction 65. The Tribunal considered the strength, nature and duration of ties to Australia, observing that the applicant arrived in Australia as a 12-year-old and his offending began shortly thereafter at a young age: at [75]. The Tribunal made the following findings:
(a) the applicant’s labour and income positively contributed to the Australian community: at [76];
(b) the applicant’s time in custody has been a “drain” on Australia’s resources: at [76];
(c) the applicant is in an enduring, committed relationship with his partner who is an Australian citizen: at [77];
(d) the applicant’s partner would suffer emotional hardship and loss of the opportunity of co-parenting their five children if the applicant’s visa cancellation were not revoked: at [77];
(e) the applicant’s mother is an Australian citizen who is unwell and would suffer distress if the applicant were removed: at [78]-[79]; and
(f) the applicant has been unable to provide practical assistance to his mother in Australia while in custody: at [78].
12 The Tribunal found that Australia does not owe the applicant any non-refoulement obligations (at [73]) and that there was no relevant impact on Australian business interests (at [81]). The Tribunal considered there was insufficient evidence to assess the impact on victims of the applicant’s offending beyond an estimation of likelihood: at [82].
13 With respect to the extent of impediments the applicant may face if removed from Australia, the Tribunal noted the applicant’s claims that he would have nowhere to live and no support upon his return to Fiji, and that he does not maintain a close relationship with his brother or other relatives who reside there: at [83]-[84]. The Tribunal accepted the likelihood the applicant would suffer emotional distress on separation from his family: at [86]. However, the Tribunal considered that the applicant’s citizenship, language, understanding of culture, and employment experience in Australia would assist him to become part of the community and gain employment in Fiji: at [85] and [87].
14 With respect to “other considerations”, the Tribunal determined that the effect of removal on the applicant’s partner and their children, whose interests were “inextricably linked”, weighed in favour of revocation: at [92]. However, the Tribunal gave little weight to impediments the applicant may face upon his return to Fiji and considered the risk to the Australian community if he were to remain to be unacceptable: at [93]-[95].
15 In balancing the primary and other considerations, the Tribunal considered the nature and seriousness of the applicant’s conduct and potential seriousness of harm caused to members of the Australian community by any re-offending were “very significant factors weighing heavily” against revocation, noting the applicant had been afforded little opportunity for rehabilitation while in custody: at [88]-[89]. On the other hand, the Tribunal found the interests of the applicant’s partner and five minor children weighed “very heavily” in favour of revoking the visa cancellation and the Tribunal accepted, unchallenged by the Minister, that the applicant desired to return to being a full-time member of the family and understood that he needed support to achieve that: at [90].
16 The Tribunal ultimately decided that the primary considerations favoured non-revocation and expressed this decision to be consistent with Direction 65: at [91].
GROUNDS OF THE APPLICATION FOR AN EXTENSION OF TIME
17 On 19 July 2021, the applicant filed in this Court an application seeking an extension of time to apply for review of the Tribunal’s non-revocation decision. An extension to a date seven days after the date of this decision is sought. The application to extend time is supported by an affidavit of the applicant’s solicitor, Ms Zoe Ford, affirmed on 19 July 2021, which sets out the basis of the application as follows:
a. That it is in the interests of justice that the application for an extension of time be granted;
b. There is a reasonable explanation for the delay in failing to commence an application to the court within 35 days of the Minister’s decision;
c. The application for judicial review has merit for the reasons outlined in this affidavit.
18 The first respondent to the application for an extension of time is the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. For completeness, I will make an order amending the name of the first respondent to the current Minister for Immigration, Citizenship and Multicultural Affairs (the Minister).
PROPOSED APPLICATION FOR REVIEW OF THE TRIBUNAL’S NON-REVOCATION DECISION
19 The applicant’s main application pursuant to s 476A of the Act seeking review of the Tribunal’s non-revocation decision is annexed in draft form to the affidavit of Ms Ford affirmed on 19 July 2021. That application seeks the following relief:
1. An order that the decision of the AAT dated 15 December 2017 [sic, 19 December 2017] be quashed.
2. A writ of mandamus directed to the AAT requiring it to determine the applicant’s application according to law.
3. An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.
4. Such further orders as the Court considers appropriate.
5. The [Minister] pay the Applicants’ [sic] costs and disbursements properly incurred.
20 The original form of the application annexed to Ms Ford’s affidavit was stated to be brought on nine grounds. A revised draft form of the substantive review application relying on only eight grounds (the revised draft grounds) was provided as an addendum to the written submissions of the applicant filed on 25 January 2022. It is the revised draft grounds to which the Minister has responded through his submissions. Reproduced below are the revised draft grounds, with particulars omitted. There is an apparent misnumbering of the grounds, or possible omission of the first ground:
…
2. The AAT committed the type of error identified in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172.
3. The AAT failed to properly respond to the evidence and material presented by the applicant on the question of harm to the 5 Australian children, to be caused by the deportation of the father from Australia and thus the decision is infected [by] jurisdictional error.
4. In failing to properly have ‘regard’ to the ‘damage’ that would be caused to the 5 Australian children by the deportation of their father, the AAT committed the type of error identified Brennan J observed in Peko-Wallsend [(1986) 162 CLR 24 at 61]:
A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered.
5. The AAT misapplied the notion that remaining in Australia was a ‘privilege’ and allowed that notion to carry an excessive weight in the consideration of the matters before it.
6. To the extent the AAT placed excessive weight on this ‘privilege’ concept, the AAT’s decision was unreasonable – see Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332, plurality reasons at [72].
7. The AAT set itself unnecessary tight deadlines, in the process denied the unrepresented applicant his application for an adjournment which he had sought in order to obtain legal representation and in refusing the adjournment the exercise of its discretion was unreasonable and/or miscarried.
8. The AAT wrongly identified 4 January 2018 as the date by which a decision had to be made purportedly, but wrongly, in order to ensure that the deadline identified in s 500(6L) of the Migration Act was not missed.
9. The notice set out at CB 170, does not properly identify the date within which the applicant was required to make an application to the AAT in that it did not meet the requirements set out in Minister for Immigration and Border Protection v EFX17 [2021] HCA 9 namely that “there be sufficient information on the face of the invitation to permit the person to determine this period correctly.”
(particulars omitted; italics, bold and errors in original)
RELEVANT LEGISLATIVE PROVISIONS
Application to this Court for an extension of time
21 With respect to the timeframe within which an application for review of a decision by the Tribunal must be made to this Court, s 477A of the Act provides:
477A Time limits on applications to the Federal Court
(1) An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision has the meaning given by subsection 477(3).
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection 477(3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
22 Section 477(3) of the Act relevantly provides:
(3) In this section:
date of the migration decision means:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or
…
APPLICATION AND MATERIAL BEFORE THIS COURT
23 On 6 May 2022, the Court ordered that the application for an extension of time and any substantive application be set down for hearing concurrently for 1 June 2022. Prior to the hearing, on 19 January 2022, the applicant filed written submissions limited to the application for an extension of time. The Minister filed written submissions on 1 February 2022 addressing both the application for an extension of time, and if granted, the substantive application for review.
24 The applicant’s counsel submitted orally at the commencement of the hearing that argument at the hearing should be confined to the application for an extension of time.
25 He indicated that he had overlooked the order of 6 May 2022 and was not prepared to argue the substantive application. Sensibly, the Minister consented to the application for an extension of time being heard on its own on the basis that the position as to the costs of any necessary adjournment of the hearing of the substantive application would be reserved.
26 These reasons deal only with the application for an extension of time.
27 Two days prior to the hearing, the applicant filed an affidavit affirmed by himself on 27 May 2022 (the applicant’s affidavit). The question of leave to rely on that affidavit was addressed orally at the hearing. The applicant sought to read the affidavit as relevant to the matter of delay in lodging the application. The Minister did not object to the affidavit being filed, although he submitted it was irrelevant with the exception of one identified paragraph. I allowed the affidavit to be read on that basis.
CONSIDERATION
General Principles
28 The principles governing applications for extension of time are well-established.
29 Gordon, Edelman and Steward JJ observed in Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28 (Katoa) that the time limit in s 477A(1) “no doubt ‘represents the legislature’s judgment that the welfare of society is best served’ by judicial review applications being instituted within a particular period of time, notwithstanding that the enactment of that period may result in a good ground of review being defeated” (at [34], footnote omitted). On the other hand, the exception (the ability to grant an extension of time) was “to ensure that the provision fixing the time limit within which to seek judicial review (s 477A(1)) does not become an “instrument[] of injustice” (at [35], footnote omitted).
30 Kiefel CJ, Gageler J (as his Honour then was), Keane and Gleeson JJ in Katoa considered (at [11]) that the text of s 477A revealed a legislative intention to restrict the Federal Court’s exercise of its original jurisdiction under ss 476A(1)(b) and 476A(1)(c) by a 35 day time limit on applications, and to ameliorate injustice that might result from that time limit by allowing that time to be extended only in cases where a judge has reached the state of satisfaction in s 477A(2)(b), namely that it is necessary in the interests of the administration of justice to extend the time period.
31 The time limits which are imposed by the legislation should not be ignored, with the starting point being that they should be adhered to.
32 The Court’s power to extend the 35 day period under s 477A(2) is conditioned on the existence of two jurisdictional facts. The first is that there has been a written application to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to grant an extension of time. The second is the Court’s satisfaction that it is “necessary in the interests of the administration of justice” to do so.
33 Kiefel CJ, Gageler, Keane and Gleeson JJ in Katoa noted that the focus of s 477A(2)(b) “is not on the interests of the applicant, but the broader interests of the administration of justice” (at [12], footnote omitted). When describing the relevant factors, their Honours noted that the paragraph “allows the Court to look at a myriad of facts and circumstances, including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application” (at [12]). These factors have been referred to in many decisions of this Court: see, for example, SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (per Flick, Griffiths and Perry JJ), citing Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]-[25] (per Cowdroy J).
34 Kiefel CJ, Gageler, Keane and Gleeson JJ continued at [12]: “The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice”.
35 Gordon, Edelman and Steward JJ in Katoa noted that the second condition (the interests of the administration of justice) did not contain a list of considerations which must or may be taken into account and could be described as deliberately broad. The factors must be considered on a case by case basis. Their Honours said (at [40]) that:
Factors that are commonly regarded as relevant to the exercise of the Court’s discretion to grant an extension of time include: the length of the delay; the explanation for the delay; any prejudice to the administration of justice as a result of the delay; and the prospects of the applicant succeeding in the application or the “strength or weakness of the case … sought to be advanced and the utility of advancing that case”.
(footnotes omitted)
36 That the phrase is sufficiently broad as capable of encompassing a range of considerations has been referred to in a number of decisions of this Court: see FKV17 v Minister for Home Affairs (2022) 292 FCR 201; [2022] FCAFC 93 (FKV17) at [76] (per Rangiah J); DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475; [2020] FCAFC 127 (DHX17) at [60]-[62] (per Collier, Rangiah and Derrington JJ).
37 The factors must be considered in a balanced way, depending upon the circumstances of the individual case. The outcomes of previous cases should not be applied in a formulaic way.
38 In MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203, Mortimer J (as her Honour then was) canvassed a range of relevant factors (at [5]) as follows:
The discretion to extend time is reposed in the Court to ensure that the interests of the administration of justice are served, and parties whose substantive appeals should be heard and determined in accordance with law are able to secure that outcome. Identifying which parties fall into that category requires analysis of the factual circumstances in each case. Sometimes, matters such as lack of legal representation, little or no proficiency in English, and little or no understanding of the Australian legal system may combine to suggest a delay is explicable. Other factors such as the length of the delay, the steps taken by an applicant during the running of the time period, and the time at which the applicant received a copy of the Court’s orders and reasons may be significant. The party’s personal circumstances may need to be considered. The importance of the subject matter of the proceeding to the party requesting an extension of time may also be relevant. The more there is at stake, the more confident the Court may need to be before it refuses an extension of time, especially if the delay is not significant. The manner in which a discretion such as this should be exercised cannot be answered by general statements about certain attributes or the circumstances of a party being insufficient.
See also BTU17 v Minister for Immigration and Border Protection [2019] FCA 538 at [15] (per Thawley J); EXU17 v Minister for Immigration and Border Protection (2018) 267 FCR 305; [2018] FCA 1675 at [36] (per Griffiths J); Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]-[38] (per Griffiths J; Edmonds J agreeing).
39 I accept the submission of the applicant that account should be taken of the applicant’s circumstances. In this case, serious and lasting implications are at stake for the applicant and his family, in particular the applicant’s five minor children. Circumstances, including the applicant’s imprisonment, limited education, and limited understanding of the complexities of the Australian legal system, provide some context.
40 I note the personal circumstances addressed by the applicant in his affidavit, including a history of family violence in Fiji, bullying and racism experienced at school in Australia, historical institutional sexual abuse while in youth custody in Australia and subsequent struggles with post-traumatic stress disorder, depression, anxiety, and alcohol and drug dependency, although these factors are more relevant to the substantive application than to the application for extension of time.
41 Allowance must be made for self-represented litigants: see, for example, DKX17 v Federal Circuit Court of Australia (2019) 268 FCR 64; [2019] FCAFC 10 (DKX17) at [84] (per Rangiah J; Reeves J and Bromwich J agreeing); Singh v Minister for Immigration and Citizenship [2013] FCA 57 at [8] (per Collier J).
Extent of delay
42 The Tribunal’s non-revocation decision was handed down on 19 December 2017. Section 477(3)(a) of the Act provides that the timeframe in which to apply for review in this Court runs from the date of the Tribunal’s written decision.
43 Under s 477A(1) of the Act, the 35 day statutory timeframe started to run on the date of the decision and expired on 23 January 2018. The applicant lodged the application for an extension of time on 19 July 2021, 1,273 days (some three and a half years) out of time.
44 The Minister submitted that the time periods in s 477A of the Act should be “rigidly applied in all but the most exceptional cases where more than one year has elapsed between the decision and the commencement of proceedings”: see Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67 (Marks) at [16] (per McHugh J); Vella v Minister for Immigration and Border Protection (2015) 326 ALR 391; [2015] HCA 42 (Vella) at [3], [20] (per Gageler J (as his Honour then was)); BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 at [35]-[44] (per Jagot and Halley JJ).
45 I do not accept, as submitted by the Minister, that there is a “cut-off” with the consequence that all delays over a certain period (suggested to be one year) result in the requirement to apply the time limit in a rigid way except in the most exceptional cases.
46 However, substantial delay in commencing proceedings warrants close scrutiny.
47 A delay of 11 months has been described as “more than a significant delay”: see BTI15 v Minister for Immigration and Border Protection (No 2) [2021] FCA 355 at [8] (per Allsop CJ), citing BTI15 v Minister for Immigration [2016] FCCA 2326 at [8] (per Judge Smith); and a delay of 18 months as “excessive”: see Tran v Minister for Immigration and Border Protection [2014] FCA 533 (Tran) at [38] (per Wigney J).
48 The decision of Gageler J in Vella has been cited as authority for the proposition that, in the case of a delay of 16 months, it would have to be an exceptional case before the interests of the administration of justice would require that an extension be granted. This conclusion follows from a concession made by the applicant in those proceedings.
49 In BNV15 v Minister for Immigration and Border Protection [2017] FCA 1048, McKerracher J considered a delay of 286 days. McKerracher J observed at [20]: “[W]here an applicant has delayed in instituting an appeal by more than 9 months, it would require an exceptional case before an extension of time should be granted”. Reference was made to comments made by McHugh J in Marks (at [13]) when it was observed that a case “‘would need to be exceptional’ before the time for commencing proceedings was enlarged by many months” (footnote omitted).
50 In CQW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1436, the extent of the extension of time sought was in the order of three years and two weeks. Katzmann J described this delay as that it “equates to more than 52 times the limitation period then in force and is properly described as extreme”.
51 Those cases to which I have referred do not lay down “hard and fast” rules as to various lengths of delay. Each case must be considered in all the circumstances. As I have said, consideration of the exercise of the discretion should not be approached in a formulaic way.
52 Of course, the extent of the delay is an important consideration. If the delay is for a very short period, such as a few days, there would be less need to extensively explain the reason for the delay than if the delay is substantial. That stands to reason. In balancing the factors, a longer delay will weigh more heavily against it being in the interests of the administration of justice to grant the extension.
53 As was said in Katoa, the imposition of a time limit represents the legislature’s judgement that the welfare of society is best served by judicial review applications being instituted within a particular period of time, and the focus of the section is not on the interests of the applicant but on the broader interests of the administration of justice. This cannot be ignored.
54 A longer delay will, in my view, require further and compelling explanation as to the explanation for the delay and steps taken. It has been said that, in general, the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195 (per Lockhart, Sheppard and Burchett JJ); Tran at [38].
55 Here, the applicant’s delay was some three and a half years, which has correctly been described as extreme. Such an extreme delay verges on ignoring the time limit. This factor weighs heavily against the grant of an extension of time. Of course, this is but one factor which must be taken into account.
Explanation for delay – steps taken
56 In the applicant’s affidavit, the applicant deposed at [134] that he was unaware of the timeframe within which he had to file any application for review. Generally, ignorance of statutory timeframes, even on the part of a self-represented litigant, does not, without more, amount to a satisfactory explanation for delay. Lay persons are generally not aware of the Court’s timeframes: see, for example, SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38] (per Foster J); Lee v Fair Work Commission [2020] FCA 1204 at [89] (per Collier J); BLS16 v Minister for Immigration and Border Protection [2019] FCA 192 at [19] (per Derrington J); DLE16 v Minister for Home Affairs [2019] FCA 136 at [23] (per Derrington J); FPK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 723 at [16] (per Banks-Smith J), referring to SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8] (per Katzmann J); CBM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 551 at [23] (per Snaden J).
57 In the applicant’s affidavit, the applicant referred to having directed his partner to forward an application for pro bono referral to the New South Wales Law Society and exhibited an email dated 14 September 2018 from the applicant’s partner to the New South Wales Law Society. Attached was a completed information sheet. The type of matter is described as being “Immigration” and, under the heading “Time limitations to lodge documents etc…”, the word “Yes” was included. This suggests that the applicant and his partner were aware of the existence of a time limitation by no later than 14 September 2018. The application was filed in this Court on 19 July 2021.
58 The applicant’s solicitor deposed to having been informed by the applicant that, in October/November 2017, the applicant was assisted by the Prison Chaplain to complete the application to the Tribunal. However, the applicant was not able to obtain legal advice at that time and at the Tribunal hearing.
59 The applicant deposed that following notification of the Tribunal’s non-revocation decision, he attempted to obtain legal advice on next steps but was unable to secure pro bono assistance and was not in a financial position to afford legal fees. The applicant said: “Despite many attempts made by myself and my partner … I was unsuccessful in obtaining legal representation at any stage in the process” (at [135]). The extent of those attempts were set out in the affidavit.
60 The applicant said he attempted to complete the relevant paperwork required to apply for review of the Tribunal’s non-revocation decision with the assistance of his partner (at [136]). No details are provided. Previously, the applicant had obtained assistance in preparing the Tribunal application from the Prison Chaplain within the prison. The applicant did not say whether an attempt was made to seek assistance from that person who had assisted him only a few months earlier.
61 The applicant’s solicitor deposed that the applicant made various requests to prison welfare officers and prison officers seeking assistance, but that he received negative responses. No details are provided.
62 The applicant deposed to some specific attempts he says were made by his partner to obtain legal representation, including by contacting Legal Aid and the New South Wales Law Society via telephone and email.
63 The earliest documented attempt with a date available was on 1 May 2018, around five months after the date of the Tribunal’s non-revocation decision.
64 Prior to that time, the applicant deposed only that he directed his partner to telephone the New South Wales Law Society on an unspecified date and was informed that no assistance was available with respect to immigration matters. No details were provided. This is at odds with his having directed his partner to make an application for pro bono assistance to the New South Wales Law Society in September of that year.
65 The applicant’s solicitor deposed that, after having made intermittent attempts (probably those listed by the applicant in his affidavit) over a couple of years, the applicant was informed by a welfare officer that he should wait until he became eligible for parole and was transferred to immigration detention where he would be able to access immigration legal advice.
66 The applicant ultimately obtained pro bono legal representation and was able to access legal advice in or around mid-2021.
67 The Minister submitted that there was no satisfactory explanation for the delay and that, while it is accepted the applicant was in prison and faced difficulties with obtaining legal advice and representation in a timely manner, that fact was not sufficient to bring the case within the category of exceptional cases contemplated in Marks and Vella.
68 The applicant has not established that he took steps beyond sporadic attempts to contact legal agencies over a number of years.
69 The applicant was able to obtain assistance from within the prison service (the Prison Chaplain) in October/November 2017 in preparing the application to the Tribunal. This was around two months before the decision was handed down in December of that year. There seems to have been no attempt to obtain assistance from the same source.
70 The first documented attempt to obtain external assistance was in May 2018, around five months after the Tribunal’s decision had been handed down, which is a lengthy period of time in its own right. Apart from the suggested direction to his partner to call the New South Wales Law Society to seek pro bono assistance, no attempt seems to have been made during that five month period to respond to the Tribunal order. The applicant’s later direction to his partner to lodge an application for pro bono legal assistance to the New South Wales Law Society in September 2018 is inconsistent with an asserted request for pro bono assistance having been rejected at this earlier time.
71 Whilst the applicant said that he was unaware of any time limits involved, the form sent to the New South Wales Law Society on 14 September 2018 leads to the conclusion that, no later than this time, there was awareness of the time limitations. Yet nothing was lodged for a further 34 months.
72 It is common knowledge that persons in prison can and do commence legal proceedings. It is also not uncommon that individuals in prison (and generally) can face difficulty accessing legal advice. Those reasons for delay are not adequate and certainly not exceptional in the context of the extremely lengthy delay which occurred in this case.
73 The explanation provided weighs against the exercise of the discretion in favour of granting an extension of time.
Prejudice
74 Prejudice to the respondent caused by the delay will militate against a grant of extension, but the mere absence of prejudice is insufficient to warrant an extension.
75 No issue of prejudice was raised by the Minister, and the applicant’s counsel correctly submitted that the outcome of the application for an extension of time, if granted, should not prejudice the outcome of the substantive review application.
76 This factor is neutral.
Prospects of the proposed substantive grounds of review
77 In considering the interests of the administration of justice, it is relevant to consider the merits of the proposed application.
78 The interests of the administration of justice would not likely be served by allowing an extension of time for an application with no prospects of success: see FKV17 at [151]; MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 (MZABP) at [62] (per Mortimer J (as her Honour then was)). That result would follow if the prospects of appeal were hopeless. A case on appeal with no prospects makes the grant of the extension futile and a waste of court time.
79 Subject to the impact of other factors, it has been regarded as in the interests of justice that a person be permitted to place an arguable case before the Court: see FKV17 at [150]-[152]. Of course, as Gordon, Edelman and Steward JJ said in Katoa at [34], the imposition of the time limit may result in a good ground of review being defeated. This is not surprising. Were that not the case, there would be no point in imposing a time limit. The various other considerations will be of significance in those circumstances.
80 In BQQ15 v Minister for Home Affairs [2019] FCAFC 218 (per Yates, Wheelahan and O’Brien JJ), it was said (at [33(e)]) that:
The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. Leave will not be granted where there are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to “assess the merits in a fairly rough and ready way”: Jackamarra v Krakouer (1998) 195 CLR 516 at [7] – [9].
81 In the context of an application for an extension of time, the expression “merits” refers to the prospects of success of the substantive application.
82 Relying on the decision of the Full Court of this Court in Guo v Minister for Immigration and Border Protection [2018] FCAFC 34, it was submitted by the applicant that consideration of whether the substantive review application has any reasonable prospects of success is properly based on consideration of the proposed grounds of judicial review at a “reasonably impressionistic level”.
83 The relevant standard has been described as a “threshold assessment of merit” and the Full Court has decided that “the hurdle is low”: see DHX17 at [76]; EBT16 v Minister for Home Affairs (2019) 374 ALR 443; [2019] HCA 44 (EBT16) at [7] (per Gageler J (as his Honour then was)). Considering the analogous provision of s 477(2) of the Act in MZABP, Mortimer J expressed the approach to be taken (through obiter) as follows:
62 [I]t will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, is because the grounds on their face, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level … into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
63 The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.
…
66 In my opinion, unless the grounds are hopeless in the sense I have discussed above so that simply on an impressionistic reading and consideration without full argument a judge can be confident they must fail, the better approach if the Court is otherwise satisfied it is in the interests of the administration of justice to grant an extension of time would be to do so and then to consider and determine the grounds of review with a full consideration of them. There is no reason that cannot still be done in one hearing and in my opinion it reflects a more appropriate exercise of the supervisory jurisdiction of the Federal Circuit Court.
See also DHX17 at [64]-[87]; EBT16 at [7]-[8]; DKX17 at [95]; CNC15 v Federal Circuit Court of Australia [2018] FCAFC 204 at [40] (per White, Perry and Steward JJ); MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; [2016] FCAFC 110 at [21] and [38] (per Tracey, Perry and Charlesworth JJ); MZABP at [68].
84 In the Full Court in MZABP, when referring to the decision of Mortimer J below, the Court endorsed “the approach which her Honour so clearly elucidated as to the proper disposition of applications for extension of time” – reference being made to the paragraphs quoted in these reasons from the decision of Mortimer J.
85 The matter was considered by the High Court in Katoa.
86 Kiefel CJ, Gageler, Keane and Gleeson JJ referred to the reasons of Mortimer J (as set out earlier in these reasons) with approval. It was noted that it will often be appropriate to assess the merits of the proposed grounds of review at the “reasonably impressionistic level” (at [17]). However, equally, their Honours observed (at [18]): “there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits”. An example given was “if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even ‘exceptional’” (citing the decisions in Vella and Marks). Their Honours concluded that the broad power in s 477A(2) does not prevent a judge from undertaking a more detailed examination than at a reasonably impressionistic level and from relying upon that determination to refuse an extension of time. Their Honours ruled that it was incorrect to say that the decisional process of exercising the discretion in s 477A(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review. The Court overruled the decision in DHX17.
87 Their Honours concluded that conducting a full assessment of the merits beyond “at a reasonably impressionistic level” would not constitute jurisdictional error.
88 It is important not to conflate the application for extension of time with the main application. Each has a different purpose. The role of the judge at the time of the application for extension of time is not to finally decide the merits of the case, but to consider whether it is in the interests of the administration of justice to extend the time so that the applicant has an opportunity to be heard on the merits. Hence the assessment of the prospects is generally at a reasonably impressionistic level to consider whether there is an arguable case.
89 The existence of very strong prospects of success in the main application may be a positive factor in favour of the grant of extension. It may be a factor which, for example, operates against the impact of a substantial delay or lack of a reasonable explanation or adequate steps having been taken.
90 On the other hand, an apparently weak case may not necessarily be a factor weighing against the grant of extension but is unlikely to be a factor which weighs in favour of the grant. Referring to the observations of French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98, Mortimer J, referring just to the question of prospects, put it that it will seldom be appropriate to refuse to extend time where a ground for review is properly described as weak as opposed to hopeless (MZABP at [65]).
91 In this case, as mentioned earlier, prior to the hearing, the Court ordered that both the application for extension of time and also the substantive application be heard at the same time.
92 Counsel for the applicant revealed that he had overlooked the order and mistakenly understood that only the application for extension of time would be heard. He indicated that he was not in a position to present the case which would be required on the substantive hearing and had only prepared on the basis that the merits would be considered at a “reasonably impressionistic level”.
93 The parties agreed that the matter would proceed by way of a hearing of only the application for extension of time. Based upon what was said by counsel for the applicant, it would be procedurally unfair to the applicant to consider the matter on a more comprehensive basis.
94 The applicant relies on eight grounds in the draft review application. I will briefly canvass the parties’ submissions on each of the grounds. On the assumption that the revised draft grounds are misnumbered, I will refer to the grounds in their relative order beginning with Ground 1.
Grounds 1, 2 and 3: The Tribunal erred by failing to properly consider the evidence regarding the impact of removal on the applicant’s children
95 The first three of the revised draft grounds deal with the Tribunal’s consideration of the impact of the applicant’s removal from Australia on his five minor children. The applicant submitted that the Tribunal’s reasons are “scant” insofar as there was a failure to properly grapple with the question of the nature, extent or duration of damage to the applicant’s children, which the applicant submitted would be substantial and ongoing: see Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17 at [24] (per Kiefel CJ, Keane, Gordon and Steward JJ). The applicant submitted that the Tribunal failed to properly consider the available evidence by failing “to form the required state of satisfaction by reference to the information before [it] as to the seriousness of the harm to the children that was likely if the visa cancellation was not revoked”: see Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294; [2021] FCAFC 172 (Bettencourt) at [42] (per Burley, Colvin and Jackson JJ). In particular, the applicant submitted the Tribunal did not take proper account of the oral evidence of the family worker and caseworker from the Department of Family and Community Services.
96 The Minister submitted there was no jurisdictional error insofar as the Tribunal, having analysed the evidence, accepted that the best interests of the applicant’s children were in favour of revoking the visa cancellation. The Minister submitted that it is not a fair reading to construe the Tribunal’s reasons as evincing a failure to properly consider the evidence, as contended for by the applicant. It was submitted that the Tribunal was not required to set out the evidence verbatim in its reasons and, accordingly, there can be no analogy to Bettencourt because there is no available inference that the Tribunal did not genuinely consider the evidence before it.
97 The assertion by the applicant is that the Tribunal did not properly appreciate or recognise that the children would suffer “damage”. The decision outlined the relevant evidence by Ms O’Brien. The Tribunal dealt with the evidence of Ms O’Brien at [60]-[66] as well as the evidence by Ms Loong, a case worker from the Department of Family and Community Services, at [67] and [68]. The Tribunal noted that the Minister conceded that the best interests of the applicant’s five young children was a factor which weighed in favour of revoking the cancellation decision, and agreed. The Tribunal accepted the evidence of Ms A (the partner) in relation to the family arrangements. The Tribunal concluded that “the interests of the applicant’s five young children and Ms A weigh very heavily in favour of revoking the cancellation decision”.
98 At an impressionistic level, the applicant’s argument is a very weak one.
Grounds 4 and 5: The Tribunal erred by misapplying the notion of “privilege” in Ministerial Direction 65 and to the extent it gave excessive weight to “privilege” the decision was legally unreasonable
99 Grounds 4 and 5 are connected and seek to impugn the Tribunal’s reliance on the notion of “privilege” in a quoted passage of the reasons sourced from paragraph 6.3 of Direction 65, to the effect that the conferral or reinstatement of an Australian visa is a privilege. The applicant submitted that the Tribunal’s focus on “privilege” was misplaced and constituted the gravamen of the decision and to that extent the Tribunal acted in a legally unreasonable manner: see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [26] (per Allsop CJ) and [70(d)] (per Griffiths J).
100 The Minister submitted that no jurisdictional error lies as the Tribunal’s reasons cannot fairly be read in the way contended for by the applicant, relying on Minister for Immigration and Border Protection v Tesic (2017) 251 FCR 23; [2017] FCAFC 93 at [26]-[39] (per Reeves, Robertson and Rangiah JJ) where no error was found in the Minister’s reliance on the “privilege” principle in paragraph 6.3 of Direction 65. The Minister submitted that the Tribunal’s decision is appropriately based on a balancing of the relevant factors in Direction 65 and that a contextual reference to the language used in the Direction was consistent with a proper evaluative approach.
101 The focus of these grounds are on the Tribunal’s reference at [91] to the proposition that coming to, or remaining in, Australia is a “privilege” Australia confers on non-citizens, and this being the basis of the decision. A fair reading of [91] does not, in my opinion, support the ground raised by the applicant.
102 The Tribunal clearly made the decision by balancing the relevant factors and observed in [91] that the conclusion (which the Tribunal said it had reached) would be consistent with the principles of general guidance which were quoted in [91]. The reference to “privilege” is used only in the direct quotation from the Directions. At an impressionistic level, I believe the argument is a very weak one.
Grounds 6 and 7: The Tribunal’s exercise of power miscarried or the Tribunal acted unreasonably by failing to grant an adjournment of the hearing to allow the applicant additional time to seek legal representation
Ground 8: The Tribunal’s exercise of power miscarried on the basis of a defect in the written notification to the applicant of the delegate’s non-revocation decision
103 Grounds 6, 7 and 8 are interrelated. It is convenient to consider Ground 8 first, to the extent Grounds 6 and 7 flow from Ground 8. Ground 8 turns on whether there was an error with the Minister’s purported method of “giving” the notification of the delegate’s non-revocation decision to the applicant. The applicant contended that, if there was such an error, its effect was to invalidate the notification. It was contended that conflicting information on the face of the notification letter amounted to an insufficient crystallisation of the relevant time period so as to permit the applicant to correctly determine the deadline for lodging an application for review of the delegate’s non-revocation to the Tribunal.
104 The delegate’s non-revocation decision was made on 9 October 2017 and the letter notifying the applicant of the decision was dated 10 October 2017. The letter was addressed to the applicant at the post office box address of the correctional centre where the applicant was serving his sentence, being the last residential address for the applicant known to the Minister. It was not in evidence whether the notification was sent by registered post or other prepaid means, but, in any event, the distinction is inconsequential for present purposes: see Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77; [2000] FCA 377 (Singh) at [30] (per O’Connor and Mansfield JJ); SZOBI v Minister for Immigration and Citizenship (No 2) (2010) 119 ALD 233; [2010] FCAFC 151 at [13] (per Stone and Jagot JJ); Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163; [2010] FCAFC 23 at [15] (per Dowsett, Stone and Bennett JJ).
105 There was a notation on the head of the letter which stated the letter to be delivered “By Hand”. The body of the notification letter addressed to the applicant relevantly included the following passages:
…
The notice of the decision not to revoke the original decision consists of this letter and the enclosed decision record and attachments.
Review Rights
As the decision not to revoke the original decision was made by a delegate of the Minister, you are entitled to have that decision reviewed by the Administrative Appeals Tribunal.
If you wish to have the decision reviewed, you must lodge your application for review within nine (9) days after the day on which you are taken to be notified of the decision. If you have an authorised recipient who is authorised to receive documents relating to the revocation of the original decision on your behalf, you are taken to be notified when your authorised recipient is taken to be notified of the decision.
As you do not have an authorised recipient who can receive documents on your behalf, and as this letter was given to you by hand, you are taken to be notified of the decision when this letter was handed to you.
(underline added)
106 Included at the base of the notification letter sent by the Minister’s delegate was the following signature block for acknowledgement of receipt:
I acknowledge receipt of the Notice of decision not to revoke visa cancellation under s 501CA(4) of the Migration Act 1958 and a copy of the documents pertaining to the decision to not to revoke the cancellation of the visa formerly held by
[applicant]
Signature:
Date:
(for hand-delivered notifications - officer to confirm delivery)
I confirm that the documents referred to above were received by the above named person:
Witness:
Date:
107 The acknowledgment of receipt by the applicant was unsigned: cf EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 158; [2021] FCAFC 173 (EPL20) at [29] (per Yates, Griffiths and Moshinsky JJ). The Minister led no evidence as to by whom, with what documents and when, or by what means, the notification was given to the applicant. The only evidence was the applicant’s own. The applicant deposed that he received the notification of the decision in prison, “contained in an envelope which appeared to have Australia Post markings on it, like black ink stamps”. The applicant deposed he no longer retained the envelope or any copy of it. In his application for review to the Tribunal signed and dated 16 October 2017, the applicant stated that the date he in fact received the notification of the delegate’s non-revocation decision was 12 October 2017.
108 The language used by the applicant seems consistent with the letter having been handed to the applicant in prison, having been delivered to the prison by post.
109 The first question raised by Ground 8 is the date of service of the notification, which is relevant when determining the statutory deadlines raised in Grounds 6 and 7. Regulation 2.55(4) of the Migration Regulations 1994 (Cth) (Regulations) applies to the giving of a document under s 501G(3) of the Act relating to a decision to not revoke a decision to cancel a visa under s 501CA of the Act: see reg 2.55(1). For a person in the applicant’s position, the Minister must “give” the document in one of the ways mentioned in reg 2.55(3): see s 494B of the Act and s 28A of the Acts Interpretation Act 1901 (Cth). Relevantly to this case, handing a notice to a person personally or dispatching the notice by prepaid post or other prepaid means are both valid methods of delivering the notice to the person: see regs 2.55(3)(a) and 2.55(3)(c)(ii). The language of reg 2.55(3) requires that the Minister must give the document to a person in “one of” the ways provided for in the regulation, and the four methods of “giving” specified in (a)-(d) are expressed disjunctively. Regulations 2.55(5)-2.55(8) operate as deeming provisions for when a person is taken to have received a document “given” by the Minister using one of the four methods specified in reg 2.55(3)(a)-2.55(3)(d).
110 In Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228 (Beni), the Full Court considered the text, context and purpose of reg 2.55. The Court held (at [27]):
Each paragraph of subreg 2.55(3) identifies a way in which the Minister must “give the document”. The four relevant acts are set out in paras (a) to (d) of subreg 2.55(3). Each of them requires the Minister to do something. Subregulations 2.55(5), (6), (7) and (8) each contain a statutory deeming of receipt tied to the relevant act (of giving) identified in paras (a) to (d) of subreg 2.55(3) In Sainju [v Minister for Immigration and Citizenship (2010) 185 FCR 86], his Honour [Jacobson J] said (at [51]):
What seems to me to be decisive is that each of the deeming provisions [in subregs 2.55(5), (6), (7) and (8)] focuses upon the physical act [identified in paras (a) to (d) of subreg 2.55(3)] of the Minister in giving the document to the person, rather than whether the document is actually received.
111 The effect of the deeming provisions is that a person is taken to have been “given the notice” on the date that it is taken to have been received: see Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 180; [2021] FCAFC 174 at [21] (per Yates, Griffiths and Moshinsky JJ).
112 In Beni, the Full Court at [46] endorsed the observations of Jacobson J in Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; [2010] FCA 461 at [68]-[70] (per Jacobson J) with respect to the context and purpose of reg 2.55, which was introduced into the Regulations by the Migration Amendment Regulations 2001 (No 6) (Cth) (No 206) with effect from 10 August 2001, at the same time as ss 494B and 494C were introduced into the Act. Those two sections deal with the methods by which the Minister gives documents to a person, and when a person is taken to have received documents from the Minister, for the purposes of the Act and the Regulations. The timing of the enactment suggests “[reg 2.55] was enacted for the same purpose as the corresponding provisions of the [Act]” and “as part of the same statutory scheme”, the evident purpose of which was “administrative certainty”: see Beni at [46].
113 The Full Court in Beni at [40] observed that:
The determination of the time a document is received by a person and, therefore, in any particular case, the amount of time which that person has within which to take action (such as seeking review) is critical to the basic performance of the regime. It is conceivable that on some occasions unfairness could be caused by the possibility of merits review being foreclosed …
114 Their Honours further considered the underlying policy of administrative certainty at [50]:
The formulation of the regime reflected in the Regulations … is all directed to the ability for the Minister to know the date of notification so that the Minister knows what to put on the notification document as the date by which any review must be sought. These dates depend on which method of giving the notification is chosen. Deeming is essential in those migration decisions as visa holders may have changed contact address several times from the last known physical address or email address. If receipt had to be proven by the Minister, the Minister would not know what date to insert on the notification document because the date the notice was received could not be known by the Minister.
See also Singh v Minister for Home Affairs [2019] FCA 724 at [17] (per Flick J) and Singh at [32].
115 It forms part of the statutory context to the interpretive task that the person receiving a notification of a decision under s 501CA is usually in custody: see Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 578; [2020] FCAFC 196 at [34] (Stewart). The statutory context contemplated and intended that the prisoner would have a limited capacity to communicate with the Minister, and vice versa: see Stewart at [50]. In Stewart, Justices Rares, Anastassiou and Stewart observed at [35]:
Such a person is not at liberty. They cannot do what people at liberty can do, and they cannot be expected to do what people at liberty can be expected to do. They are at the mercy of their gaolers and must depend on them to transmit [documents], whether by some electronic or digital means or by post or other physical means …
116 The Minister submitted that the notification was “given” to the applicant “by hand” under reg 2.55(3)(a). The Minister relied on the fact the notification was expressly stated to be given “by hand”, in conjunction with a statement to the applicant in the body of the letter that “you are taken to be notified of the decision when this letter was handed to you”. It was submitted that the fact the applicant received an envelope with Australia Post stamps did not preclude the possibility the applicant was handed the notification for the purposes of the Regulations. It was further submitted that it can be inferred that people in custody are routinely handed documents by prison officers and that it remained open to the applicant to put on evidence to the effect that he has never been given anything by hand, although he has not done so.
117 To the contrary, the applicant said in his application that the date he received the notification was 12 October 2017.
118 However, the applicant submitted that the notification was “given” to the applicant by prepaid post under reg 2.55(3)(c), relying primarily on the fact the notification letter was in fact addressed to a post office box and the applicant’s evidence it was received in an envelope with “Australia Post markings … like black ink stamps”.
119 It was submitted that the “normal way of receiving mail” for a person in the applicant’s position was for a prison officer to collect the mail on the person’s behalf and hand it to the person, as no prisoner was able to go and collect their own mail. Counsel for the applicant compared other situations where mail received at a post office box might be collected by one person on behalf of another, for example, a husband for a wife or a staff member for other staff members. It was submitted that the method of delivery was fixed when the sender determined to dispatch the documents by post, and from that point the postal method takes over. It was further submitted that, were the result otherwise, the sender would have no certainty as to the time of delivery. The applicant’s counsel submitted that to remedy any error in the purported method of delivery, the Minister would be required to effect fresh service of the notification, omitting the words “by hand” on the face of the document.
120 If the method of “giving” the notice to the applicant is taken to be by personally handing the document to the applicant under reg 2.55(3)(a), as contended for by the Minister, the applicant is deemed to have received the document on the date it was, in fact, handed to him: see reg 2.55(5). The deemed date of service would be 12 October 2017. However, if the method of “giving” the notice to the applicant is taken to be by dispatching the document by prepaid post under reg 2.55(3)(c), as contended for by the applicant, the applicant is deemed to have received the document seven working days (in the place of his address) after the date of the document: see reg 2.55(7). The deemed date of service would be 19 October 2017.
121 Even if the Minister made an error in the giving of the notification by the purported method of delivery “by hand”, the applicant’s evidence that he nonetheless received the notification likely enlivens reg 2.55(9), which operates to validate service of the document and deem the date of service to be the date the document was in fact received. That date is 12 October 2017. The possible implications of reg 2.55(9) were not raised in submissions by either side.
122 The second question raised by Ground 8 is the crystallisation, by the terms of the notification letter, of the period within which the applicant had to apply for review to the Tribunal. Section 501G(1)(f)(ii) of the Act relevantly requires that, for a person the subject of a decision of a delegate of the Minister under s 501CA(4), the written notification of the decision must state the timeframe within which an application for review to the Tribunal may be made. Section 500(6B) of the Act provides that an application for review of a non-revocation decision under s 501CA(4) of the Act must be lodged with the Tribunal within nine days after the day on which the person was notified of the decision in accordance with s 501G(1). The relevant notification from the Minister “must crystallise the period either expressly or by reference to correct objective facts from which the period can be ascertained” and it is necessarily implicit that a failure to comply with the statutory obligations regarding notification gives rise to jurisdictional error and results in the purported notification being invalid: see Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112; [2021] HCA 9 (EFX17) at [42] (per Kiefel CJ, Gageler (as his Honour then was), Keane, Edelman and Steward JJ); EPL20 at [24]. However, invalidity of the notification does not necessarily invalidate the delegate’s non-revocation decision, as strict compliance with notification obligations is not a condition subsequent to a valid exercise of power: see EPL20 at [43]-[44].
123 As the letter was dated 10 October 2017, the deemed date of receipt would be seven working days after that date. The period within which the applicant was required to lodge any application for review then expired nine days after the deemed date of receipt. There was a statement in the notification letter that an application for review had to be lodged within nine days after the applicant was taken to have been notified of the decision, which was stated to be the date he was “handed the decision”. On this basis, the Minister submitted that EFX17 had no application as the notification to the applicant was not defective as it provided a way for the applicant to ascertain the timeframe within which any application for review by the Tribunal must be lodged by reference to the day on which he was in fact handed the letter.
124 A purposive construction of reg 2.55(3) may be argued to support the approach put forward by the applicant, insofar as it permits a precise calculation of dates against which the Minister can assure himself of statutory compliance: see EFX17. It was arguable, as submitted by the applicant, that the Minister (by his delegate) elected under reg 2.55(3)(c) to “give” the notification to the applicant by prepaid post at the time the letter was addressed to the post office box address and dispatched.
125 The Minister pointed to the fact that the notification expressly stated that it was given “by hand” and informed the recipient of the date of notification by saying “You are taken to be notified of the decision when this letter was handed to you”. It also warned of the time frame of lodgement within nine days. The Minister concluded that the notice did provide a way for the applicant to ascertain when the application had to be made.
126 Without reaching a final conclusion, I accept the applicant’s submission that, on a reasonably impressionistic level, the ground is arguable.
127 Grounds 6 and 7 concern the approach taken by the Tribunal in not granting an adjournment of the hearing in order to allow the applicant a further opportunity to seek to obtain legal assistance, and flow from the alleged defect in the written notification dealt with under Ground 8. Significantly for an applicant, where an application is made to the Tribunal for review of a decision under s 501CA(4) of the Act not to revoke a decision to cancel a visa, and the Tribunal has not made a decision within 84 days after the day on which the person the subject of the decision was notified in accordance with s 501G(1), the Tribunal is taken, at the end of that period, to have affirmed the decision under review: see s 500(6L) of the Act. The applicant submitted that the 84 day statutory timeframe ran from the date a proper notification of the decision under review was given to the applicant, but contended that, under s 501G(1)(f), there was no proper notification given to the applicant. It was submitted that, consequently, the 84 days could not have started to run from the date the applicant in fact received the notification letter, not least because there was a lack of evidence to verify that date. It was submitted that the fact the applicant ultimately lodged his application for review to the Tribunal within the nine day timeframe cannot validate a defective notice: see EFX17.
128 The applicant submitted that the matter of the alleged defect in the notice took on practical significance to the applicant’s detriment when the Tribunal was considering whether to grant an adjournment of the hearing. The applicant argued that the Tribunal appeared to have proceeded under the misapprehension that the 84 day timeframe under s 500(6L) expired on 4 January 2018. The applicant submitted that, properly construed, the 84 day time limit did not expire until 11 January 2018. The applicant submitted that the Tribunal “therefore need not have rushed into this matter and could have taken time to calmly and properly considered this matter and properly considered the applicant’s application for an adjournment in order to obtain a lawyer”.
129 The applicant submitted that the Tribunal’s approach to an adjournment of the hearing to allow the applicant to seek to obtain legal representation was further constrained by the fact that this particular Tribunal member only had limited time, and that the matter “ought to have been allocated to a member who was not constrained by other commitments”. The Tribunal gave its decision on 19 December 2017, which was nine business days before 4 January 2018. The applicant submitted that a Tribunal member not constrained by time may have allowed the applicant additional days to seek to obtain legal representation. It was submitted the Tribunal’s exercise of discretion to not grant the applicant a short adjournment to attempt to find a lawyer miscarried and was unreasonable due to the real possibility that the outcome of the hearing would have been different and that a “moderately skilled advocate would have been able to make significantly more of the material” than the applicant did in the circumstances, in such a way as to potentially make a difference to the outcome: see Khalil v Minister for Home Affairs (2019) 271 FCR 326; [2019] FCAFC 151 (Khalil) at [53]-[54] (per Logan, Steward and Jackson JJ).
130 The Minister submitted that the applicant’s complaint must fail on the basis the applicant did not in fact make a request to the Tribunal for an adjournment and therefore there can be no argument the Tribunal fell into error by referring to the particular Tribunal member’s inability to hear the matter at a future date if it were adjourned. The Minister submitted that the Tribunal’s reference to the requirement to decide the matter by 4 January 2018 should not be understood to conflate the deadline for the making of a decision with the deadline for the publication of reasons: see Khalil at [48]. It was further submitted that the issue of whether s 500(6L) of the Act applied if the notification was defective (considered but not decided in Khalil at [56]-[59]) did not arise and that there may be no error even if the notification was defective: see Khalil at [60]-[61].
131 As the Minister noted in submissions, the transcript indicated that the applicant did not request an adjournment. The Tribunal member indicated that, if an adjournment were requested, it would be considered by the Tribunal member. It was clear from the transcript that, at the time of the year, and with the limitations imposed by the legislation in relation to the time frames for deciding matters of this type, there was a time pressure. The Tribunal member referred to his availability to hear the matter were it to be adjourned. There is no error in the Tribunal member doing that.
132 There is no apparent basis for the applicant’s submission that the matter was not “calmly and properly” considered. That suggestion has no foundation. In relation to matters where an 84 day timeframe is imposed, as the Tribunal member pointed out, in the best interests of the applicant, matters are concluded within the prescribed time. That is what occurred in this case.
133 The Tribunal member also referred to the reality that the applicant had been unable to obtain legal assistance to date and queried whether the position would change with the space of a possible adjournment. Again, there is no jurisdictional error in raising these issues.
134 At an impressionistic level, the argument is a weak one.
CONCLUSION
135 I take account of the fact that the outcome of this application has serious and lasting implications not just for the applicant, but also for his family, in particular his five minor children. The expert reports relied upon before the Tribunal make this clear, particularly in relation to the five children. I take note of the personal circumstances of the applicant, including a history of family violence, historical institutional sexual abuse and struggles with depression and anxiety and alcohol and drug dependency. The applicant was self-represented in the Tribunal proceedings. These weigh in favour of exercising the discretion to grant the application for the extension of time.
136 The length of the delay in this case was some three and a half years. This length of delay is extreme. It weighs heavily against the exercise of the discretion to extend time. The extreme delay requires a compelling explanation as to the delay and the steps taken.
137 The predominant cause of the delay was related to the asserted lack of knowledge of the time limit, the applicant’s incarceration in prison and the lack of availability of assistance in dealing with the decision made by the Tribunal. There were inconsistencies in the applicant’s affidavit to which I have referred earlier in these reasons. The lack of legal knowledge of the time limits is not an excuse. In any event, it is clear that the applicant did have some knowledge of the time limits some 34 months before he lodged this application. The fact of being held in prison and the lack of access to legal advice are not exceptional circumstances which provide a reasonable explanation for a delay of some three and a half years. In my view, the delay was not adequately explained by the applicant.
138 Turning to the prospects of the main application, it was said in Katoa at [18] that “if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even ‘exceptional’” (citing the decisions in Vella and Marks).
139 I am satisfied that the prospects on appeal, on at least one ground, are not hopeless. At an impressionistic level, I have concluded that, at least, Ground 8 of the application is arguable. The case is not strong and certainly not exceptional.
140 Considering all the circumstances, I will dismiss the application.
141 I will order that the applicant pay the costs of the Minister, to be taxed if not agreed.
I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thomas. |
Associate:
