FEDERAL COURT OF AUSTRALIA

CTW23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 4

ORDERS

THE COURT ORDERS THAT:

1.    Until further order and on the grounds stated in s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976 (Cth), publication of the names and personal information of detainees as contained in the affidavit filed by the applicant on 10 October 2023 be prohibited under s 37AF of the Act.

2.    Until further order and on the grounds stated in s 37AG(1)(a) and (c) of the Act, publication of the name and personal information of the applicant be prohibited under s 37AF of Act.

3.    The application is dismissed.

4.    The applicant pay the respondent’s costs of the application, to be assessed by a Registrar if not agreed.

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

REASONS FOR JUDGMENT

ROFE J:

1.    INTRODUCTION

1    By way of an application dated 4 May 2023, the applicant seeks an extension of time to apply for judicial review of a decision made by the respondent (Minister) under s 501A(2) of the Migration Act 1958 (Cth) to cancel his Transitional (Permanent) visa.

2    The decision of the Minister was made on 14 February 2012. The applicant had until 20 March 2012, being 35 days since the date of the decision, to commence any application for judicial review in the ordinary way: s 477A(1) of the Act. The application is significantly out of time – by over 11 years.

3    Accordingly, the applicant now requires an extension of time from this Court to bring any application for judicial review of the Minister’s decision: s 477A(2) of the Act.

4    In oral submissions, the Minister raised whether the applicant should be given a pseudonym in this proceeding as he has been provided one in other matters to which he was a party before this Court. The applicant advised that he did not press the pseudonym either way. In the interests of justice, I determine that a pseudonym should be applied in this matter.

5    For the reasons that follow, the application should be dismissed.

2.    BACKGROUND

6    The applicant is a national of the Republic of Malta. He arrived in Australia along with his parents and siblings on 22 May 1981. The applicant was granted the visa in 1994.

7    On 10 December 2004, the applicant was convicted in the County Court of Victoria of two counts of attempted incest perpetrated on his 12-year-old stepdaughter. He was sentenced to a term of imprisonment of two years and six months on each count.

8    On 27 May 2005, the applicant was convicted in the County Court of Victoria of one count of rape, for which he was sentenced to a term of imprisonment of six years. The sentence was subsequently set aside on appeal and replaced with a term of imprisonment of five years and six months.

9    On 20 May 2010, a delegate of the Minister decided to cancel the applicant’s visa under s 501(2) of the Act. The Minister, or their delegate, has power under s 501(2) of the Act to cancel a visa if the visa holder does not pass the character test. In accordance with s 501(6), a person does not pass the character test if they have a “substantial criminal record”, which is defined in subs (7)(c) to include serving a term of imprisonment of 12 months or more.

10    On 17 August 2010, the Administrative Appeals Tribunal set aside the delegate’s decision and remitted the matter to the (then) Department of Immigration and Citizenship with a direction that the discretion to cancel the applicant’s visa under s 501(2) of the Act not be exercised: DNCW and Minister for Immigration and Citizenship [2010] AATA 610.

11    The Minister then sought judicial review of the Tribunal’s decision before this Court. On 19 July 2011, Marshall J dismissed the Minister’s application for judicial review: Minister for Immigration and Citizenship v DNCW [2011] FCA 806.

12    The applicant’s case was included in a “Case Escalation Register” which was sent to the Minister on 5 August 2011. The Minister indicated that he was minded to consider the use of his personal power under s 501A(2) in the applicant’s case.

13    On 31 August 2011, the applicant’s representatives from the Refugee & Immigration Legal Centre Inc (RILC) sent a fax to the Department confirming that they continued to act for the applicant.

14    On 5 September 2011, a Notice of Intention to Consider Cancellation of the visa under s 501A(2) (the NOICC) was posted to RILC.

15    On 13 September 2011, the applicant was provided with further adverse information and was invited to comment on it.

16    On 17 October 2011, the applicant responded to the NOICC. That response included various statutory declarations and letters of support, written submissions (including submissions dating from 2009 relating to the delegate’s consideration of cancelling the visa and the applicant’s Statement of Facts, Issues and Contentions filed in the Tribunal on 16 July 2010), the Tribunal’s decision and reasons dated 17 August 2010, and the judgment of Marshall J in DNCW.

17    On 3 November 2011, the applicant’s agent provided a further submission and supporting evidence to the Department.

18    On 10 February 2012, the Minister received a submission from the Department regarding whether he should exercise his discretion to cancel the applicant’s visa under s 501A(2) of the Act. The submission contained an issues paper and a draft statement of reasons regarding cancellation of the applicant’s visa.

19    On 14 February 2012, the Minister cancelled the applicant’s visa under s 501A(2) of the Act (Minister’s decision).

20    On 16 February 2012, the applicant was detained and he has been held in detention since that date.

2.1    The Minister’s decision

21    Section 501A(2) of the Act provides:

(2)  The Minister may set aside the original decision and:

…

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

if:

(c)  the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)  the person does not satisfy the Minister that the person passes the character test; and

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

22    On the basis of the applicant’s conviction for rape and the sentence to a term of imprisonment of five years and six months, the Minister found that the applicant had a substantial criminal record as defined in s 501(7), and that he did not pass the character test pursuant to s 501(6)(a) of the Act.

23    The Minister was also satisfied that it was in the national interest that the applicant’s visa be cancelled under s 501A(2). The reasons given for this were:

(a)    The applicant’s offences of rape and of attempted incest against his minor stepdaughter were “of a particularly heinous nature” and that the latter offences were a type of crime “especially abhorrent to the whole community” under Direction 41.

(b)    The potential protective function of s 501 warranted consideration of the protection of the Australian community from unacceptable risk of harm as a result of criminal activity or other serious conduct by non-citizens.

(c)    Although professional assessments had concluded that the applicant presented a low to medium risk of reoffending, the Minister could not dismiss the possibility of further offending, and that the consequences of any offending of a similar nature would be “extremely grave”.

24    Having found that the applicant did not pass the character test and that it would be in the national interest to cancel his visa, the Minister considered whether to exercise his discretion to cancel the applicant’s visa. The Minister indicated that he had regard to the considerations in Direction 41, which although were not binding upon him, had provided guidance in the exercise of his discretion.

25    The Minister had regard to the applicant’s criminal history in Australia, and the seriousness of his most recent offending and evidence about his risk of reoffending.

26    The Minister accepted that the applicant arrived in Australia as a young child and had spent his formative years in Australia, and that he had strong personal, family and employment links with Australia.

27    The Minister accepted that the applicant had a daughter, aged 13 at the time, who was an Australian citizen and noted that the applicant had not had any contact with his daughter in the previous seven years. The Minister noted the applicant’s stated intention to seek legal access to his daughter but found that his prospects of doing so were reduced because of the nature of his offending and his past conduct towards her mother (who was the victim of his rape offence). The Minister found that the applicant’s removal from Australia would not deprive his daughter of a relationship with him or prevent communication with him, and that the harm to her best interests if the visa were cancelled was unlikely to be substantial.

28    The Minister considered the applicant’s claim to have had a parent-like relationship with the son of his then current partner, with whom he had been in a relationship since 2010. He accepted that it was in this child’s best interests to not cancel the applicant’s visa for so long as the relationship continued, but found that the relationship was not long standing and there were some doubts about its future (implicitly referring to the fact that another woman was pregnant with the applicant’s child).

29    The Minister considered the applicant’s claim that another woman was now pregnant with his child and accepted that it may be in the best interests of that child for the applicant’s visa not to be cancelled. However, he found that the extent to which this was the case depended on the applicant’s relationship with that child’s mother, about which he could only speculate. The Minister also found that Australia had no international obligations to that child until it was born.

30    The Minister found that the applicant had made no claims in relation to Australia’s non-refoulement obligations.

31    The Minister accepted that the applicant’s immediate family in Australia would be distressed if he were to be removed, and that his mother would suffer some hardship due to her medical conditions, given the applicant was her carer. He accepted that the cancellation of the applicant’s visa would cause some hardship to the applicant’s partner but once again noted the doubt as to the future of this relationship.

32    The Minister accepted that the applicant would face difficulty re-establishing himself in Malta.

33    Having considered the above matters, the Minister decided to exercise his discretion to cancel the applicant’s visa. In particular, the Minister found that the nature of the applicant’s sexual offending was of great concern and that even if the risk of reoffending was low, the grave nature of that risk was unacceptable to the Australian community.

2.2    Other proceedings

34    As noted in the Minister’s submissions, the applicant has been involved in a large amount of litigation regarding his ongoing detention, including:

(a)    judicial review of a decision by the Refugee Review Tribunal not to grant the applicant a Protection (Class XA) visa (AZT15 v Minister for Immigration [2016] FCCA 1786 per Hartnett J) and an appeal from the dismissal of that judicial review application (see AZT15 v Minister for Immigration and Border Protection [2017] FCA 191 per Siopis J);

(b)    judicial review of a refusal by an officer to undertake an International Treaties Obligations Assessment (see AZT15 v Minister for Immigration & Anor (2017) 327 FLR 434 per Hartnett) and an appeal from the dismissal of that judicial review application (see AZT15 v Minister for Immigration and Border Protection [2018] FCA 1811 per Lee J); and

(c)    an application for a declaration that it is not reasonably practicable to remove the applicant from Australia in the reasonably foreseeable future (see DMH20 v Minister for Home Affairs [2022] FCA 1054 per Abraham J) and an appeal from the dismissal of that application (DMH20 v Minister for Home Affairs (2023) 296 FCR 256 per Charlesworth, Thawley and Kennett JJ (DMH20 FC)).

3.    PRINCIPLES

35    Section 477A of the Act provides the following:

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.

36    In accordance with s 477A(2), I am required to consider whether I am satisfied that it is necessary in the interests of the administration of justice to grant the applicant an extension of time to make an application for judicial review of the Minister’s decision.

37    The principles with respect to granting an extension of time are well settled. They were set out by the High Court in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 at [12] (per Kiefel CJ, Gageler, Keane and Gleeson JJ):

Other than the “interests of the administration of justice”, there are no mandatory relevant considerations, whether express or to be implied from the “subject-matter, scope and purpose” of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, 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. 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.

(Emphasis added.)

4.    CONSIDERATION

4.1    Length of, and reason for, the delay

38    The applicant’s delay in filing an application for judicial review of the Minister’s decision is just over 11 years. That length of delay is extreme and weighs heavily against the grant of an extension of time.

39    Wigney J said in Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38], citing Jess v Scott (1986) 12 FCR 187 at 195 (per Lockhart, Sheppard and Burchett JJ), that “[i]n general the longer the delay, the more persuasive the explanation needs to be”.

40    In AHZ21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 884, Farrell J said a delay of three years and nine months was a “substantial delay” and accepted that a case would need to be “exceptional” in order to grant an extension of time for that length of delay: see at [26]–[27].

41    The Minister maintains the applicant has commenced proceedings in relation to several matters whilst in detention, both assisted by legal representatives (and at times with the assistance of court appointed pro bono counsel) and also as a self-represented litigant. The applicant is clearly familiar with court processes and has not been prevented previously from bringing any application. Therefore, when considering his other litigation history whilst in detention, the applicant has demonstrated that he could have commenced proceedings earlier if he wanted to do so.

42    The only explanation given by the applicant for the significant delay in him bringing this application is the change in law in light of recent court decisions.

43    The applicant drew attention to Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2022) FCR 595 (McQueen FC) (which is currently on appeal before the High Court), Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 408 ALR 381 and the recent decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37. At the time of the hearing, the High Court had not published its reasons in NZYQ.

44    It is not in dispute that the applicant was aware of the Minister’s decision by no later than 16 February 2012.

45    The applicant accepted that he received advice at the time of the cancellation decision that he would not succeed in challenging the decision, but now considers that he may be successful given these subsequent cases. It can therefore be inferred that, at the time the Minister’s decision was made, the applicant chose not to challenge it. It can be further inferred from the other proceedings outlined above that the applicant chose to pursue other avenues.

46    A similar situation arose in Tran which concerned an application for extension of time of almost 18 months within which the applicant sought to file an application for review of the decision made by the Tribunal. The applicant had attributed the delay to the legal advice he had received from his legal representatives regarding the low prospects of success in any application for review.

47    In considering this explanation, his Honour found at [35] that:

This explanation for the 18 month delay is neither adequate nor satisfactory.  The fact that Mr Tran initially received legal advice that any application for review of the Tribunal’s decision would have limited prospects is not a sufficient explanation; all the more so when it would appear that this was sound advice.  The lack of legal advice (or in this case, the lack of positive legal advice) is not alone a sufficient excuse for failure to lodge an appeal (or in this case an application for review) within time: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]; SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6]; Manna at [17].

48    Similar to the findings in Tran, I am not persuaded by the applicant’s explanation for the delay in bringing this application. This Court is not, of course, privy to nature and contents of the legal advice provided to the applicant. However, it is understood that the applicant was provided an opportunity consider the options before him.

49    Further, I accept that a change in the law may, in some circumstances, provide an adequate reason for a significant delay in bringing an application such as where the change fundamentally and unequivocally impacts the applicant’s legal rights. However, the cases relied upon by the applicant do not have that effect in his case. NZYQ and Davis are irrelevant to the lawfulness or otherwise of the Minister’s cancellation decision because, at the time the decision was made, indefinite detention and the Minister’s exercise of personal powers under s 351(1), respectively, were simply not live issues in the applicant’s case. I will address McQueen FC below.

50    In any event, as the Minister pointed out, the law continually evolves yet there are still time limits in legislation for a reason. Statutory limits reflect the principle of the finality of litigation, a factor considered further below with respect to prejudice to the Minister.

51    In my view, granting an extension of time in this case, even if there was a persuasive reason for the delay and an arguable case on the substantive application, would make a mockery of the statutory limitation periods and essentially render s 477A(2) otiose. McKerracher J made this point in Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2187 at [28] (although his Honour was dealing with a delay of two and a half years):

In my view, the length of the delay here is of such an extreme duration that the merits of the application for an extension of time would have to be particularly obvious to overcome the delay. Were a mere ‘arguable case’ sufficient to outweigh a significant and extensive delay, then limitation periods would be deprived of any meaningful effect. It was noted by McHugh J in Brisbane South where the period selected by Parliament as the appropriate limitation period is exceeded, that limitation period ‘may often result in a good cause of action being defeated’ (at 553).

52    Bromwich J’s observations in AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291 at [57]–[58] are also relevant:

In some cases, even when there has been an express finding by a court of jurisdictional error such as by way of denial of procedural fairness, sufficient or extreme delay or other like conduct and the absence of any acceptable explanation for it may be a sufficient reason alone to deny the grant of discretionary relief under s 39B of the Judiciary Act: see NAUV v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 124; (2004) 82 ALD 784 [38]-[45] (special leave to appeal refused: NAUV v MIMIA [2005] HCATrans 96); see also SAAP v Minister for Immigration, Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 322-4 [79]-[84].

Thus if the claim of jurisdictional error is at best questionable and the delay is both substantial (for example, well outside a statutory time limit, or concerning a case below in which there has been such a delay) and without any real explanation, let alone a satisfactory explanation, that will tend to support declining to exercise a discretion to intervene.

53    His Honour further observed at [61] that even if he had ultimately come to the wrong conclusion regarding the merits of the proposed review application, it would still be inappropriate to grant the extension.

54    As I explain below, I am not satisfied that the applicant has an arguable case on the substantive judicial review application. The delay here is excessive. The excessive delay and the absence of any satisfactory or persuasive explanation for the delay would be a sufficient basis to refuse the application.

4.2    Prejudice to the Minister and third parties

55    The Minister contends that the public interest would be prejudiced if the extension was allowed, both from a broader public interest perspective and in this particular case.

56    The Full Court in Nusipepa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 24 at [14] emphasised the “law’s objective of achieving finality” and the significant public interest in “public law matters being resolved in a timely and efficient manner” (per Farrell, Burley and Lee JJ).

57    Derrington J in WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [41]–[42] observed:

There exists a clear public interest in the prompt disposition of administrative matters and, in particular, of allegations that officers of the Commonwealth have acted in excess of their jurisdiction: MZABO v Minister for Immigration & Border Protection [2016] FCA 980 [5]. In Ex parte Marks, McHugh J said in relation to proceedings in which prerogative writs were sought (at 474 [15]):

[T]he public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

More specifically, the Minister has a legitimate interest in the timely disposal of applications for visas and decisions concerning the cancellation of visas: Sun v Minister for Immigration & Border Protection (2016) 243 FCR 2020 [89]; Iyer v Minister for Immigration & Multicultural Affairs (2001) 192 ALR 71 [62].

58    The Minister also submits that the applicant’s delay and late commencement of this proceeding has occasioned actual prejudice in relation to the Minister being able to respond to the applicant’s case. The applicant’s grounds based on McQueen FC contends that the Minister did not personally consider representations and unlawfully relied on a summary of representations prepared by the Department. If this ground were raised in 2012, as it later was successfully relied upon by the applicant in McQueen FC, it could potentially have been answered by the Minister adducing evidence about his actual decision-making process and which documents he personally considered. But due to the passage of time, any such evidence is likely lost or diluted.

59    I therefore give prejudice to the respondent some, but not significant, weight in determining whether to grant the extension.

4.3    Merits of the proposed review application

60    The applicant raised several errors in the Minister’s decision. First, the applicant made at least two complaints to the Minister in 2020 and received no response from the Minister personally. The Minister is under no statutory duty to respond to complaints from non-citizens, and therefore there are no merits to this ground of review.

61    Second, that the Minister used the same circumstances for the decision under s 501A(2) as had been considered already under the s 501 cancellation which had been before the Tribunal and the Federal Court. On the applicant’s submission, this meant the Minister essentially set aside the decision of the Federal Court in DNCW, contrary to the separation of powers. Finally, the primary error identified by the applicant was procedural unfairness or unreasonableness based on allegedly incorrect information in his personal file held by the Department and typographical errors in the Minister’s decision.

4.3.1    Separation of powers

62    The applicant contends that the Minister, by his decision on 14 February 2012, set aside or overruled the Federal Court in DNCW because the Minister cancelled the applicant’s visa despite the Court upholding the Tribunal’s decision to quash the delegate’s cancellation of his visa under s 501 of the Act. The applicant submits that the Minister’s action is contrary to the doctrine of separation of powers. This submission of the applicant proceeds on a mistaken understanding of the statutory scheme.

63    Section 501A(1) provides:

(1)  This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision (the original decision):

(c)    not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)    not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

64    This section evidently proceeds on the basis that a delegate or the Tribunal has decided not to cancel a person’s visa under s 501 of the Act. As such, the exercise of power conferred on the Minister by s 501A(2) proceeds from an acceptance of the result of the Court’s determination. The Minister simply set aside the Tribunal’s decision as contemplated by s 501A(2). That did not interfere with the Federal Court’s judgment. There is nothing contrary to the separation of powers about the Minister exercising his personal discretion in these circumstances.

4.3.2    Procedural unfairness

65    The applicant submits the discrepancies in the Department’s documents, including the dates printed on the Minister’s decision (ie 14 February 2011 and 14 February 2012) rises to the level of conduct found of the Minster in McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FCA 258 (per Colvin J), which was upheld by the Full Court on appeal: see McQueen FC.

66    The applicant maintains that the inconsistencies in the documents leads to the inference that the documents were not personally prepared or considered by the Minister.

67    The conduct of the Minister in McQueen can be differentiated from the current proceeding in two key respects.

68    First, in McQueen, there was a sense of urgency. Their Honours in McQueen FC held at [44] that the “primary judge was correct to find that on the evidence it is more likely than not that the Minister had relied on the summary in the Departmental brief and had not considered Mr McQueen’s representations for himself”. The Full Court accepted the finding at [6] of McQueen that “there was a window of 30 hours and 20 minutes within which the brief was first received by the Minister and the decision was made by him”: at [47] of McQueen FC (per Mortimer, Banks-Smith and O’Sullivan JJ). In McQueen, it was decisive that the Minister considered the material in his car during the window of time he had driven between Canberra and Sydney.

69    In contrast, the applicant’s submissions were received by the Minister on 10 February 2012 and the decision was made on 14 February 2012, which provided a significantly greater window than that in McQueen. I accept that there was no sense of urgency in this case and, in the absence of evidence to the contrary, four days is a sufficient amount of time to properly consider the brief.

70    The second key distinguishing feature from McQueen is that in McQueen there was no express statement to the effect that the Minister had personally considered the representations of the applicant which contributed to the inference that the Minister had not, in fact, personally considered those representations: McQueen FC at [59] (per Mortimer, Banks-Smith and O’Sullivan JJ). In this case, the Minster’s decision record contained a page with the following declaration, at the bottom of which the Minister had signed and dated the document:

I have considered all relevant matters including (1) an assessment of the Character Test as defined by subsection 501(6) of the Migration Act 1958 (2) Ministerial Direction 41 made under section 499 of that Act, as I considered appropriate, and (3) all other evidence available to me, including evidence provided by, on behalf of, or in relation to [CTW23] in connection with the exercise of my power in s501A(2).

(Emphasis added).

71    There is no evidence to suggest that, contrary to the Minister’s declaration, the Minister did not read or consider the relevant matters before him. Snaden J dealt with a similarly unfounded allegation in CEU22 v Minister for Home Affairs (No 2) [2023] FCA 867, noting at [96]:

In circumstances where a department has prepared a document for Ministerial review, the court will usually infer that the Minister read it: Stambe v Minister for Health (2019) 270 FCR 173, 190 [74] (Mortimer J); Makarov v Minister for Home Affairs (2021) 286 FCR 412, 435 [88] (Logan, Banks-Smith and Anderson JJ). It is then, an unusual course to infer to the contrary; and one that should require a compelling evidential foundation that rises well beyond conspiracy theory.

72    The applicant further contends that, like McQueen, the Minister did not consider his submissions personally because the Minister did not put together the Departmental brief himself and, instead, this was collated by a member of his staff. I reject this argument. The Minister not personally preparing the brief does not naturally lead to the inference that the submissions were not personally considered by the Minister. It would be absurd to suggest that the Minister must personally collate and prepare all of the documents that must be considered in a particular case.

73    Finally, the applicant maintains that the typographical error made in the date of the decision is material and relies on the following comments of Greenwood J in SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs (2007) 238 ALR 611 at [45]:

The errors must be taken to have affected the exercise of the power as the Tribunal has recited the errors as material matters for the purposes of s 430(1) of the Act. The notion of an ‘affect’ upon the exercise of a power seems to me to comprehend a well placed apprehension on the part of the court in the exercise of supervisory review that the identified errors going to jurisdiction influenced the mind of the decision-maker in purporting to exercise the power…

74    Whilst the Minister accepts that there are references to the year 2011 in the decision record, these references were pre-typed into the document. Where the Minister personally handwrote the date on the decision record, he had printed “[20]12”. The incorrect date was clearly an inadvertent error and there is no basis to suggest that it affected the exercise of the Minister’s power. As such, I do not consider that any adverse inferences should be made from the (incorrect) pre-typed year.

75    The applicant further contends that other discrepancies in the Department’s internal records, including a record that the applicant is an irregular maritime arrival, has gone by other aliases and has been convicted of armed robbery, render the Minister’s decision procedurally unfair. The Minister’s decision did not refer to any of these facts and was based entirely on different matters (the nature of the applicant’s sexual offending and risk of reoffending being unacceptable to the Australian community). Therefore, whilst I accept that there appears to be some discrepancies in the Department’s records on the applicant, I find that, on balance, they did not infect the Minister’s decision with procedural unfairness.

76    As such, I do not consider that any of the grounds of the proposed judicial review application are reasonably arguable.

4.4    Conclusion

77    I do not consider that it is necessary in the interests of justice to grant the extension of time pursuant to s 477A(2).

78    The applicant has not provided any adequate reason for the delay, and I do not consider that he has an arguable case on the merits of the judicial review application. However, the overriding consideration in this case is the extreme length of the delay.

79    Accordingly, the applicant’s application for an extension of time is dismissed.

5.    OTHER MATTERS RAISED BY THE APPLICANT

80    The applicant raised several issues including the treatment of detainees in detention, drug dealing in detention centres, conflicts of interest with the NCCC, publication of the applicant’s name in the media, conspiracies amongst SERCO guards, the application of the Magna Carta and other principles in relation to the rule of law. These matters are not relevant to the application for extension of time and were not considered in considering whether to grant an extension of time.

81    The applicant made several submissions in relation to the duration and condition of his detention in particular. This included the impact of detention on his mental health and physical health (including developing carpal tunnel syndrome from handcuffs), and the conditions in detention deterring his family from visiting.

82    The applicant has previously had an opportunity to ventilate issues regarding his detention in other proceedings before this Court: see DMH20, which was upheld on appeal in DMH20 FC.

83    The Minister determined that it was unnecessary to respond to these submissions as they are not relevant to why the applicant did not commence this proceeding earlier or whether there is any merit in the substantive grounds of the proposed review. I accept this position.

84    The conditions of detention are not matters relevant to the application of extension for time currently before me and, as such, were not considered in weighing this application. An application for an extension of time in which to file a judicial review application of the Minister’s visa cancellation decision is not the appropriate vehicle to agitate those issues.

85    I note, however, that it is open to the applicant to seek independent legal advice in relation to the impact of the High Court’s recent decision in NZYQ on his circumstances. Notwithstanding that the applicant has been in detention for almost 12 years, the Minister indicated in the hearing that the Department does not consider that the applicant is affected by NZYQ.

6.    CONCLUSION

86    Accordingly, the application for an extension of time is dismissed with costs.

Associate:

Dated:    10 January 2024