Federal Court of Australia

DIS24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1397

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time is dismissed.

2.    The Applicant pay the First Respondent’s costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

HESPE J:

Introduction

1    The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal made on 16 December 2020 which affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke a cancellation decision made under s 501(3A) of the Migration Act 1958 (Cth) in respect of a visa held by the Applicant. The time stipulated for seeking review of the Tribunal’s decision as of right expired over three and a half years before these proceedings were commenced. Accordingly, in order to prosecute his application for review, the Applicant requires an extension of time.

2    The Applicant could not provide the Court with an adequate explanation for the extraordinary delay in filing the application for judicial review. The Applicant suffers from a range of medical conditions. He was represented before the Tribunal by a migration agent. He cannot recall whether he received advice or information on his rights of appeal or review at the time he was notified of the Tribunal decision.

3    Given the grounds of review that the Applicant seeks to agitate are of limited merit and the inadequacy of the explanation for the very significant delay, the application for an extension of time should be dismissed. It follows that the application for review must also be dismissed.

Background

4    The Applicant is a citizen of Vietnam who was born in 1961. His parents fled Vietnam without the Applicant while the Applicant was serving time in a re-education camp. Sometime after his release from that camp, the Applicant escaped by sea from Saigon and set out toward Malaysia. When close to Malaysia, the vessel on which the Applicant was travelling was intercepted by police and the Applicant was taken to a refugee camp. The Applicant was granted a visa and arrived in Australia in August 1985. From 1 September 1994, the Applicant was the holder of a Class 8F transitional (permanent) visa until that visa was cancelled.

5    After arriving in Australia, the Applicant travelled to Alice Springs where he was reunited with his family. In 1985, the Applicant was involved in a motor vehicle accident in which he suffered serious injuries. Sometime between 1988 and November 1989, the Applicant moved to Melbourne with his partner J and opened a restaurant with his parents. The Applicant has two sons from his relationship with J.

6    The Applicant and J separated in about 1997. J and the Applicant’s two sons moved to South Australia.

7    The Applicant was a heroin addict and also smoked cannabis. The Tribunal found that the Applicant was using heroin regularly before he moved to Melbourne and when residing in Alice Springs.

8    The Tribunal described the Applicant’s offending history in the following terms:

[28]    On 17 January 1991 the Applicant was convicted in the Victorian Magistrates’ Court for his first criminal offence of cultivation of cannabis and was placed on a bond to be of good behaviour. In September 1991, he was convicted of theft of a motor vehicle and was again placed on a bond. On 29 November 1991, he was convicted of recklessly causing serious harm and received a 12-month suspended sentence of imprisonment. He breached that suspended sentence by subsequent offending for which he was sentenced on 17 July 1992, namely two counts of burglary, theft and possessing a drug of addiction. For those offences he received three months [sic] imprisonment on each offence to be served concurrently. He was dealt with for breach of the suspended sentence, which sentence was partially reinstated with three months’ imprisonment to be served. Earlier in June 1992, the Applicant had also been dealt with for the offences of attempted theft, two counts of theft, and burglary for which he received concurrent sentences of six months imprisonment on each count.

[29]    Thereafter until March 2003, the Applicant committed numerous offences including possession of a regulated weapon, possession of heroin, theft, burglary, aggravated burglary, trafficking heroin, and possession of property being proceeds of crime for which he received both suspended sentences, sentences of imprisonment and a community-based order.

[30]    On 24 December 2003, before the Victorian Magistrates’ Court, the Applicant was sentenced for 11 counts of burglary, 11 counts of theft, three counts of aggravated burglary, and attempted burglary. He was sentenced to three years’ imprisonment on each count to be served concurrently. He was also sentenced on two counts of theft to six months’ imprisonment on each count to be served concurrently.

[31]    In 2005, the Applicant received a warning letter from the Minister advising him about the risk of visa cancellation and relocation to Vietnam should he further offend.

[32]    From 2005 until 2013, the Applicant was again before the Victorian Magistrates’ Court and sentenced for offences of possession of cannabis, possession of heroin, theft, attempted theft, burglary, attempted burglary and failing to answer conditions of bail. He received sentences of imprisonment to be served by way of intensive correction order and suspended sentence.

9    Following the closure of the family’s restaurant in 2003, the Applicant’s main sources of income were unemployment benefits and selling drugs.

10    At some point in about 2017, the Applicant moved to South Australia to be close to his sons. He moved to rental accommodation owned by one of his sons.

11    On 17 December 2019, the Applicant appeared before the District Court of South Australia to be sentenced for trafficking in a controlled drug, cultivating a commercial quantity of a controlled plant (cannabis), possession of prescribed equipment and interference with electricity meter – offences which he committed whilst residing at his son’s rental accommodation – as well as failure to comply with a bail agreement. He received a sentence of three years, two months and three weeks’ imprisonment with a non-parole period of two years, six months and 23 days.

The Tribunal’s decision

12    It was not in dispute before the Tribunal that the Applicant failed the “character test” and therefore could not rely upon s 501CA(4)(b)(i) to support a revocation of the cancellation of his visa. The question addressed by the Tribunal was whether there was “another reason” for the purposes of s 501CA(4)(b)(ii) why the cancellation decision should be revoked.

13    The Tribunal observed at TR [47] that it was required to comply with Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 79: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (20 December 2018).

14    The Tribunal addressed the primary consideration in Direction No. 79 of the “Protection of the Australian community”. The Tribunal accepted that the Applicant’s drug addiction had led to his criminal offending in Victoria (at TR [67]). In respect of the Applicant’s offending in South Australia, the Tribunal observed (at TR [73]) (citations omitted):

Cultivating a commercial quantity of cannabis and trafficking in cannabis is very serious offending. As the Learned Sentencing Judge observed, the Applicant “stood to make a significant amount of money from the cannabis” that he was growing. The Tribunal accepts that some of the cannabis was for personal use, but to bypass an electrical metre [sic] and turn bedrooms within the house into grow rooms with lighting, transformers, and carbon filters, demonstrates the Applicant’s contempt and disregard for the laws of Australia. The Applicant said that he had stopped using heroin, methylamphetamine and cocaine by this time. I accept that submission. Hence, I find that the offending was not driven to feed his drug habit, but was, to a substantial extent, driven by greed to make money from a commercial cannabis crop.

15    The Tribunal (at TR [106]) also noted that the Applicant has been a recidivist offender committing serious offences since 1991. Although there was a period of time between his last appearance in the Victorian Magistrates’ Court in August 2013 and the commission of the offence in South Australia in October 2018, noting that that offence was the second cannabis crop he had cultivated, the Tribunal was satisfied that the Applicant remains at high risk of re-offending of the same or similar type of serious offences, for which he has been dealt with by the courts over a long period of time. The Tribunal considered that such offences are drug or drug related offences, including drug trafficking offences which would potentially have a devastating effect on members of the community. It observed (at TR [107]) that a number of these offences were committed after the Applicant had received a warning in writing about the consequences of further offending.

16    Overall, the Tribunal (at TR [108]) concluded that the Applicant’s criminal offending had been very serious and there is real and substantial risk that he will commit similar offences in the future. That risk was considered by the Tribunal to be unacceptable. The primary consideration of “Protection of the Australian community” was therefore found to weigh heavily against revoking the cancellation decision.

17    The Tribunal found (at TR [117]–[118]) that there were no minor children in Australia to whom the primary consideration of the “Best interests of minor children in Australia affected by the decision” applied. This consideration was thus not enlivened.

18    The Tribunal also concluded that the expectations of the Australian community were that the Applicant should be denied the opportunity to remain in Australia. The Tribunal (at TR [127]) accepted that the Applicant’s addiction to drugs, and particularly heroin, had led to his lengthy and recidivist criminal offending. The Tribunal (at TR [133]) considered that by his offending he had repeatedly breached the trust of the Australian community and any tolerance towards him had evaporated. This consideration weighed heavily against revocation of the cancellation decision (at TR [134]).

19    The Tribunal then considered the “Other considerations” in Direction No. 79, three of which were relevant on the basis of the material before the Tribunal, namely:

(a)    international non-refoulement obligations;

(b)    strength, nature and duration of ties to Australia; and

(c)    extent of impediments if removed from Australia.

20    In relation to international non-refoulement obligations, the Tribunal (at TR [118]–[191]) concluded that the evidence did not establish that the Applicant had a well-founded fear of harm because of the political environment in Vietnam, his prior departure from Vietnam or his prior drug use. The Tribunal (at TR [192]) was not satisfied that the Applicant had a well-founded fear of persecution or harm should he engage in the methadone program now available in Vietnam. The Tribunal concluded that the fears the Applicant held about life in Vietnam were not of a type to enliven non-refoulement obligations and gave no weight to this consideration.

21    The Tribunal’s consideration of this matter forms part of the basis for the proposed grounds of appeal and is discussed further below.

22    In relation to the consideration of strength, nature and duration of ties to Australia, the Tribunal (at TR [223]–[224]) accepted that it would be devasting to the Applicant’s family should he be relocated to Vietnam and that this consideration weighed moderately in favour of the revocation of the cancellation of the Applicant’s visa.

23    In relation to impediments if removed to Vietnam, the Tribunal (at TR [240]) accepted that the Applicant would find it difficult to find his way in Vietnam and that he would need to pursue various medical treatments to support his well-being, including methadone and treatment for his diagnosed mental health issues. The Tribunal also recognised that the Applicant would not suffer language or cultural barriers in accessing those services and that the Applicant’s sons had indicated that they were willing to continue to provide the Applicant with financial support should he relocate to Vietnam.

24    The Tribunal (at TR [241]) was satisfied that this consideration weighed significantly in favour of the revocation of the cancellation of the Applicant’s visa. The Tribunal’s consideration of this matter forms part of the basis for the proposed grounds of appeal and is discussed further below.

25    Overall, the Tribunal concluded that the two primary considerations of the protection and expectations of the Australian community weighed heavily against revocation of the cancellation decision and outweighed any considerations favouring revocation (at TR [244]). It followed that the delegate’s decision not to revoke the cancellation decision was affirmed.

Application for an extension of time

26    The decision of the Tribunal refusing to revoke the cancellation decision was made on 16 December 2020. The period in which the Applicant could, as of right, bring an application for judicial review of that decision expired 35 days thereafter: s 477A(1) of the Act.

27    The delay in making the application for an extension of time in this case is extreme. The application for an extension of time was not filed until August 2024. That was a delay of over three and a half years after the date on which the right to seek review expired.

28    An order extending the time for making the application for review may be made if it is in the interests of the administration of justice to do so: s 477A(2) of the Act. Considerations generally relevant to the exercise of the discretion to grant an extension of time include: the length of the delay, the nature of any explanation for the delay, whether the other party will suffer any prejudice by the extension of time, the prejudice to the Applicant if time is not extended and whether the proposed grounds of review have sufficient merits to warrant extending time: see e.g. Rere v Minister for Immigration and Border Protection [2018] FCA 846 at [16]–[17] (Thawley J); DZAEH v Minister for Immigration and Border Protection [2016] FCA 83 at [25] (Besanko J).

The length of time

29    The extension of time sought in the present case is significant as a result of the very lengthy delay in making the application.

30    In cases of such lengthy delay, it has been said that making an order extending time in the interests of the administration of justice requires the Court to be satisfied that the Applicant’s case is “exceptional”: Vella v Minister for Immigration and Border Protection [2015] HCA 42; 90 ALJR 89 at [3] (Gageler J, as his Honour then was); Re Commonwealth; Ex parte Marks [2000] HCA 67; 75 ALJR 470 at [13] (McHugh J); Salum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCATrans 51 (Gordon J); EQJ17 v Minister for Home Affairs [2020] FCA 33 at [38] (Perry J); WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [30] (Derrington J).

31    Where the delay largely lacks a “cogent and compelling explanation”, the Applicant must generally demonstrate that the case sought to be advanced is “exceptional” in terms of its merits to provide a justification for extending time: cf Gibson v Minister for Home Affairs [2020] HCATrans 46 (Edelman J).

32    For the reasons explained below, the Applicant has failed to provide an adequate explanation for the delay and has also failed to demonstrate any exceptional merits of his case. The Applicant has failed to demonstrate that there are “exceptional circumstances” warranting the making of an order granting the requisite extension of the time for bringing the application for review.

No adequate explanation for the delay

33    The Applicant’s evidence rose no higher than that he suffers from medical conditions and he could not recall ever receiving advice on his rights of review following notification of the Tribunal’s decision. Counsel for the Applicant quite appropriately conceded that there was no adequate explanation for the delay in commencing proceedings.

Prejudice

34    The Minister accepted that he would not suffer any specific prejudice if an extension of time were to be granted in this particular case. However, the absence of such prejudice is not, of itself, sufficient to warrant extending time: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ).

35    There is 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 and Border Protection [2016] FCA 980 at [5] (Jessup J); Ex parte Marks at [15] (McHugh J). There is a legitimate interest in the timely disposal of applications for visas and decisions concerning the cancellation of visas: Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; 243 FCR 220 at [89] (Flick and Rangiah JJ); Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929; 192 ALR 71 at [62] (Gyles J).

36    The statutory limitation of time in which to make an application for review of the Tribunal’s decision reflects the legislature’s view of the balance to be generally struck between the interests of applicants in seeking review with the interests of the Minister and his Department in finalising the decision-making obligations under the Act. That general temporal limitation should not be treated as merely provisional: WQRJ at [43] (Derrington J).

37    The prejudice in this case in relation to the orderly and proper administration of the Act is a factor which weighs against the grant of the application for an extension of time.

38    It was submitted that the Applicant would suffer prejudice if the extension of time was not granted. It can be accepted that if time is not extended the Applicant will lose the opportunity to advance his case which might otherwise restore his entitlement to remain in Australia.

Merits of the application

39    As explained above at paragraph 30, where the delay has been inordinate, some exceptional case generally needs to be shown before an extension of time will be granted.

40    For the reasons that follow, the Applicant has not shown that the grounds are of sufficient strength so as to render the circumstances of this case exceptional. It follows that the merits of the proposed grounds of review do not outweigh the consequences of the inordinate delay and the absence of a satisfactory explanation for that delay.

41    Both of the Applicant’s grounds concern the manner in which the Tribunal addressed the “Other considerations” set out in Direction No. 79.

Ground 1

42    By the first proposed ground of review, the Applicant contends that:

The Tribunal’s finding that the Applicant would not relapse into drug use on removal to Vietnam or that it could not speculate as to whether the Applicant would relapse in Vietnam and therefore not be arrested for drug use on return to Vietnam and/or subject to detention in a compulsory treatment centre was irrational, illogical, or unreasonable.

43    The Tribunal is required to read, identify, understand and evaluate the representations made to it: Plaintiff M1 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ). The requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness: Plaintiff M1 at [25] (Kiefel CJ, Keane, Gordon and Steward JJ). The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them: Plaintiff M1 at [25] (Kiefel CJ, Keane, Gordon and Steward JJ).

44    In the present case, the Tribunal at TR [145]–[186] identified the oral and written representations made to it in relation to Australia’s non-refoulement obligations.

45    The written representations identified by the Tribunal included general assertions that the Applicant would face “many hardships possible persecution” if he returned to Vietnam (TR [146]). The Tribunal identified (at TR [147]) that the Applicant’s statement of facts, issues and contentions (SFIC) provided to the Tribunal included, under the heading “non-refoulement”, a contention that:

the Applicant was an escapee from Vietnam and that Vietnam had not altered its regime since the time of the Applicant’s escape. He was treated harshly by the Vietnamese regime from which he escaped, and there is no reason to suppose that the official attitude to the Applicant would have changed or that deportation at this point would amount to anything other than refoulement.

46    The Tribunal observed (at TR [148]) that under the heading, “strength, nature and duration of ties”, the Applicant in his SFIC contended that the delegate did not:

consider his past in relation to the trauma to which he was subjected prior to departure from Vietnam; trauma which has its foundation in his childhood, when he was subjected to cruel treatment by his father, and was further exacerbated by his incarceration by the Vietnamese Communist Regime.

47    The Tribunal identified (at TR [149]) the following material filed by the Applicant:

1.    Human Rights Watch – The Rehab Archipelago: Forced Labour and Other Abuses in Drug Detention Centres in Southern Vietnam dated September 2011. This report relies on the testimony of 34 former detainees that were held in drug detention centres under the administration of Ho Chi Minh City and concludes with a series of recommendations for the Vietnamese Government, Vietnamese and foreign companies that have commercial relationships with drug detention centres in Vietnam and various international bodies;

2.    Human Rights Watch – Public Insecurity: Deaths in Custody and Police Brutality in Vietnam dated September 2014. This report discusses conditions in police custody generally and does not relate specifically to 06 [Drug Detention] centres. It adopts a case-based approach to the issue by reviewing individual cases of police brutality as reported by Vietnamese and foreign news agencies;

3.    Human Rights Watch – Vietnam: Drops Charges Against Boat Returnees dated May 2016, which the Applicant acknowledged in closing submissions related to people escaping Vietnam by boat at that time and was not relevant to the Tribunal’s consideration with respect to the Applicant; and

4.    An Email from Mr B Frelick, Director – Refugee and Migrant Rights Divisions dated 13 November 2020 enclosing material 1 – 3 to the Applicant. He said that the material related to recent boat returnees and he expressed the serious doubt that document related to the Applicant and those who left Vietnam in the 1980s and 1990s.

48    In so far as the Applicant’s oral representations to the Tribunal were concerned, the Tribunal (at TR [154]) relevantly recorded that:

The Tribunal asked the Applicant “why are you scared and what are you scared of?” He responded, “I’m not sure if there is any hope for people with addiction, whether there is or whether I’m eligible for receiving that…I have no relatives, I would be by myself and not sure how I would survive.” In Australia, he has a disability support pension. “And like any father, I would not want to be away from my children.”

49    The Tribunal also recorded that the Applicant made the following oral submissions (at TR [159]):

as criminal deportee, the Applicant would be escorted by authorities to Vietnam and then handed to Vietnamese authorities or police and detained or imprisoned….

The Applicant then referred to being delivered to a 06 centre, namely a centre for drug users, which was no better than prison.

50    The Tribunal rejected these two submissions as unsupported by the evidence (at TR [159]‍–‍[160]). There is no challenge to that finding.

51    The material before the Tribunal included:

(a)    DFAT Country Information Report Vietnam dated 13 December 2019;

(b)    A copy of a journal article titled “Preferences for methadone clinics among drug users in Vietnam: a comparison between private and public models” published 6 January 2020;

(c)    United States Department of State, Vietnam 2019 Human Rights Report; and

(d)    United States Department of State, Vietnam 2016 Human Rights Report.

52    Before the Tribunal, the Applicant relied upon the DFAT Country Information to contend that conditions in 06 Centres are worse than those in prison.

53    Having found (at TR [189]) that there was no evidence that the Applicant would be delivered to authorities in Vietnam and be transferred to a drug rehabilitation centre upon his removal to Vietnam, the Tribunal made the following finding (at TR [190]):

Of course, it will be for the Applicant to maintain his abstinence from drugs, lest he expose himself to prosecution by Vietnamese authorities. He says he is determined to remain drug free in the future. It is to be expected that the Applicant will remain a law-abiding citizen should he relocate to Vietnam and no well-founded fear of persecution or risk of harm, including imprisonment or detention, can therefore arise from the Applicant’s relocation. It is not for the Tribunal to gaze into a crystal ball and speculate what might happen should he reoffend. I am not satisfied on the evidence that the Applicant will be detained or imprisoned should he be relocated to Vietnam.

54    It is this finding that the Applicant contends is irrational because it is said to be logically inconsistent with the findings the Tribunal made in relation to the risk to the Australian community. In assessing that risk, the Tribunal made the following findings (at TR [81]–[83]) (emphasis added):

81.    The Applicant’s offending has substantially been a consequence of his drug addiction. He had a particular addiction to heroin but also used from time to time methylamphetamine and cocaine which gave rise to a large number of criminal offences since arriving in Australia. Most recently, his drug offending (including commercial cultivation of cannabis) demonstrated that he was not motivated or determined to abstain from drug use or drug trafficking.

82.    The fact that the Applicant was still engaged with a drug associate in Victoria to borrow money and set up his grow house, and that he intended to engage with other drug associates in Victoria to sell the product of his commercial cultivation, clearly demonstrates that he was not then sufficiently motivated to sever his ties with those in the drug industry.

83.    I have little faith in his promise not to reoffend.

55    The Applicant relies on the last sentence of TR [81] and its reference to “drug use” to contend that the Tribunal had found that there was an appreciable risk of the Applicant returning to the use of drugs.

56    The Applicant’s submission relies upon undue weight being attached to a phrase without proper regard to the Tribunal’s reasons as a whole. Those reasons include TR [73] set out above. When viewed as a whole, the Tribunal’s findings include:

(1)    The Applicant had stopped using heroin, methylamphetamine and cocaine by the time of his most recent offending (at TR [73]).

(2)    The Applicant’s most recent offending was not driven to feed a drug habit, but was driven by greed to make money from a commercial cannabis crop (at TR [73]).

(3)    The risk to the Australian community was related to the Applicant’s ties to the drug industry, particularly in Victoria and the Applicant’s failure to sever those ties (at TR [82]).

(4)    The offence in South Australia in 2018 was the second cannabis crop he had cultivated (at TR [106]).

(5)    Drug trafficking offences potentially have a devastating effect on members of the community (TR [106]).

57    On the material before the Tribunal, the evidence was that compulsory detoxification establishments that had been known as 06 Centres were in decline in Vietnam following the introduction of methadone treatments. Having regard to the material before the Tribunal in relation to compulsory detoxification establishments in Vietnam, and of a transition to methadone maintenance treatment, it is apparent that it is opioid use (primarily heroin) that results in admission to a 06 Centre. The Tribunal accepted the Applicant’s evidence that the Applicant was free from the use of heroin and cannabis (at TR [189]). Although the Applicant was now on methadone treatment, the evidence was that such treatment was available in Vietnam outside of 06 Centres. The Tribunal’s finding (at TR [190]) that it was to be expected that the Applicant would remain a law-abiding citizen should he return to Vietnam is to be understood as an expectation that the Applicant would not return to the use of drugs (heroin, in particular) and would not face detention. That finding was not on its face inconsistent with the findings otherwise made by the Tribunal.

58    The Applicant’s submission is not an accurate reflection of TR [190]. The Tribunal did not find that if the Applicant relapsed into drug use in Vietnam the Applicant would be imprisoned or detained in a compulsory treatment centre. Its finding was only that if the Applicant did not abstain from drug use, he would be exposed to the risk of prosecution.

59    The Tribunal found that there was no well-founded fear of persecution or risk of harm in the form of any imprisonment or detention arising from the Applicant’s relocation. The Tribunal did not discount the possibility of prosecution if the Applicant failed to maintain his abstinence from drugs but was not willing to speculate as to the outcome of such a prosecution should the Applicant reoffend. The Tribunal’s consideration is to be understood against the background of the High Court’s decision in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; 254 CLR 610 at [76]–[77] (French CJ, Kiefel, Bell and Keane JJ). Australia does not owe non-refoulement obligations to a person who fears harm on the basis that, if that person were in the future to breach a law of general application in the country to which they are to be returned, the person might be subject to criminal prosecution in the same way as any other citizen of that country.

60    The Applicant contends that the Tribunal’s consideration of “impediments to removal” was infected with the same alleged irrationality concerning a risk of relapse into drug use which was said would result in the Applicant facing compulsory treatment or imprisonment. In this respect, the Applicant contended that it was to be inferred from the Tribunal’s reasons that the Tribunal relied on its findings at TR [190] to address the Applicant’s claims that his potential drug use was an impediment if removed from Australia. The Applicant referred to TR [240] to support this inference, where the Tribunal found:

The Tribunal accepts that the Applicant is genuinely concerned about returning to Vietnam for the reasons discussed in Other Consideration (a) and will initially find it difficult to find his way within the Vietnamese community. His separation from his family will be distressing. He has no known family contact in Vietnam, albeit he has not yet made any enquiry about the whereabouts of relatives and, in particular, his uncle. That remains a line of enquiry available to him, but I will not speculate about the likely success of that enquiry. He will need to pursue the various medical treatment options necessary to support his long-term well-being including receiving methadone and treatment for his diagnosed mental health issues. However, he has the benefit of no substantial language or cultural barriers which would otherwise cause a substantial impediment in enabling him to engage in those services, and he has the ability to establish himself and maintain basic living standards comparable to those of other citizens of Vietnam

61    The reference to “Other Consideration (a)” in the Tribunal’s reasons is a reference to international refoulement obligations.

62    For the reasons set out above, the contention of irrationality is not accepted. The Tribunal did not assess the risk to the Australian community based on an assessment of a risk of future drug use by the Applicant. As is apparent from the reasoning of the Tribunal, the risks to the Australian community related to the risk of the Applicant reoffending in respect of drug trafficking. The Tribunal made no finding that relapsing into drug use in Vietnam would result in the Applicant facing compulsory treatment or imprisonment in Vietnam. The Tribunal’s finding was limited to a risk of prosecution should the Applicant reoffend against the laws of Vietnam. The Tribunal made no findings about the risk of arrest on return to Vietnam opposed to a risk of prosecution.

63    The Applicant’s case in respect of ground 1 is not strong and does not support the grant of an extension of time of over three and a half years.

Ground 2

64    Ground 2 is expressed as an alternative to ground 1. It is based on an alternative reading of TR [240] which reads the reference in the first sentence of that paragraph to “the reasons discussed in Other Consideration (a)” as not referring to the entirety of the reasons set out at TR [137]–‍[196] under the heading “Other Consideration (a): International Refoulement Obligations” but as referring only to TR [194]–[195]. Those paragraphs read as follows:

194.    The Tribunal gave the Applicant the opportunity to articulate those fears by asking the question “Why are you scared and what are you scared of?”. His answer was that he was not sure of the help available to people with drug addiction issues, or what he is eligible for in Vietnam. He has no relatives in Vietnam, he would be by himself and was not sure how he will survive, and that in Australia he has the benefit of the disability support pension. He concluded by saying, like any father, he did not want to be away from his children. The Applicant was not asked by his representative any further questions that expanded upon those stated fears.

195.    Those fears are understandable, and I accept that they are genuinely held. But those fears are not of the type that enliven the non-refoulement obligation not to forcibly return, depart or expel the Applicant to a place where he will be at risk of harm. They are relevant to Other Consideration (e) Extent of Impediments if Removed.

65    Based on this reading of TR [240], the Applicant contended that the Tribunal failed to consider a clearly articulated claim by the Applicant that fear of harm of being detained as a drug user constituted an impediment to removal.

66    This contention fails to have regard to the Tribunal’s reasons as a whole. At TR [193], immediately preceding the paragraphs relied upon by the Applicant, the Tribunal observed:

The extent to which the Applicant enlivened a fear of harm was primarily contained in the written material to which I have refereed [sic] and included his handwritten letter and the personal information form.

67    The reference to the Applicant’s genuine concerns about returning to Vietnam at TR [240] should fairly be read as referring to the entirety of the fears considered by the Tribunal under the heading “Other Consideration (a): International Refoulement Obligations”. As explained above, the findings of the Tribunal were that the Applicant was not a user of cannabis or heroin at the time of the Tribunal hearing, the Applicant’s most recent offending was not the result of drug use and the Applicant’s risk of reoffending was not to be equated with a risk of reverting to drug use that would result in a risk of him being detained in Vietnam.

68    Ground 2 is not strong and does not make this case exceptional so as to overcome the consequences of the inordinate and unexplained delay.

Conclusion

69    The Applicant’s delay of over three and a half years in making an application to this Court was inordinate and not adequately explained. The grounds in support of the proposed application for review have limited, if any, prospects of success and do not support a conclusion that there are circumstances which would warrant an extension of time in the interests of the administration of justice.

70    The application for extension of time in which to file the Originating Application seeking review of the Tribunal’s decision not to revoke the cancellation decision should be dismissed. It follows that the application for review should also be dismissed as being out of time.

71    The Applicant should pay the Minister’s costs of the application for an extension of time and of the application for judicial review.

Associate:

Dated:    6 December 2024