Abeyesinghe v Minister for Immigration & Anor (No.2)

[2017] FCCA 1449

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABEYESINGHE v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 1449

Catchwords:
MIGRATION – Application for extension of time to file application for judicial review – whether delegate failed to comply with obligations under s.194 of Migration Act 1958 (Cth) – held application plainly hopeless – application for extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.48, 194, 195, 196, 477

Migration Regulations 1994 (Cth), reg.2.12

Cases cited:

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110
NABE v Minister for Immigration and Multicultural and Indigenous Affairs [No 2] (2004) 144 FCR 1.

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant: SASIKA USHAD DEVINUWARA DIAS ABEYESINGHE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1041 of 2016 and MLG 1046 of 2017

Judgment of: Judge Jones

Hearing date: 17 May 2017

Date of Last Submission: 1 June 2017

Delivered at: Melbourne

Delivered on: 29 June 2017

REPRESENTATION

Solicitors for the Applicant in proceedings BRG1041/2016 and proceedings MLG1046/2017: Mr Karunadasa of TAI Lawyers

Counsel for the Respondents in proceedings BRG1041/2016 and proceedings MLG1046/2017: Mr Tran

Solicitors for the Respondents in proceedings BRG1041/2016 and proceedings MLG1046/2017: Sparke Helmore Lawyers

ORDERS BY THE COURT

IN PROCEEDINGS BRG 1041 of 2016

1. The application for extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) filed on 27 October 2016 be dismissed.

2. The question of costs be determined by way of oral submissions on 29 June 2017.

ORDERS BY CONSENT

IN PROCEEDINGS MLG 1046 of 2017

1. A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 20 January 2017.

2. A writ of mandamus issue directed to the Second Respondent requiring it to determine the application made to it for review of the decision of a delegate of the First Respondent dated 10 January 2017 according to law.

3. There be no orders as to costs.

NOTATIONS BY CONSENT

IN PROCEEDINGS MLG 1046 of 2017

A.The First Respondent accepts that the Second Respondent committed a jurisdictional error by failing to consider and determine a claim which was not squarely advanced by the Applicant but which was “apparent on the face of the material before the Tribunal” being the Applicant’s contention that a no study condition should not be imposed which would prevent him from finishing his degree: NABE v Minister for Immigration and Multicultural and Indigenous Affairs [No 2] (2004) 144 FCR 1.

B.At [15], the Tribunal concluded that:

I am also satisfied that if the visa were to be granted it would be appropriate to impose the discretionary conditions that have been identified by the delegate.  They are; 8101 – no work; 8207 – no study; 8401 – reporting requirements and 8505 – reside at specified address.

C.The transcript of the hearing before the Tribunal reveals that the Applicant said:

Applicant:     Yes member, in this application is just saying if I have a chance to finish the last core subject that will change my life but in this circumstance, I’m not trying to work here or stay in the long term or staying here long plans or anything like that because I went through that course like I finished three-quarters of the course.

Tribunal:    OK.

Applicant:     But if you see that application sir, you will see it’s one with the diploma, one with the degree. I want to finish the degree. The only thing I’m asking is just to finish that core subject and then that’s it.

D.The First Respondent accepts that it is apparent from the above extract from the transcript of the hearing that the Applicant was, in substance, contending that a no study condition should not be imposed which would prevent him from finishing his degree. This claim was not addressed by the Tribunal. On this basis, the First Respondent accepts that the Second Respondent has committed a jurisdictional error in the circumstances of this case.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

BRG 1041 of 2016 and MLG 1046 of 2017

SASIKA USHAD DEVINUWARA DIAS ABEYESINGHE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This decision concerns one of two applications for judicial review made by the Applicant. The first application was filed on 27 October 2016 (“the first application”), seeking judicial review of a decision of a delegate of the Minister for Immigration and Border Protection

   
   

   (“the Minister”) made on 6 September 2016 notifying the applicant that his application for a Visitor (Tourist) (Subclass 600) visa (“the tourist visa”) was invalid (Supplementary Court Book (“SCB”) 30).[1]

   [1] At the substantive hearing, the Applicant’s solicitor advocate clarified that whilst this application for judicial review referred to a decision made on 5 September 2016, the decision date should be amended to 6 September 2016.

2. The second application for judicial review was filed on 6 April 2017 (“the second application”) and is in relation to a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 20 January 2017, affirming a decision of a delegate of the Minister not to grant the Applicant a Bridging E (Class WE) visa (“the bridging visa”) (SCB 75-80).[2]

   [2] In these proceedings, the Court file has two Court Books and one Supplementary Court Book, filed on 16 May 2017.

3. Subsequent to the hearing of the two applications, the parties reached consent as to proposed consent orders, disposing with the second application. These were that a writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 20 January 2017 and that a writ of mandamus issue directed to the Second Respondent requiring it to determine the application for judicial review according to law.

4. Consequently, this judgment is concerned only with the first application.

5. I should note that, following certain observations that I made during the course of the hearing regarding issues arising from the second application, the Minister was granted leave to file supplementary written submissions in relation to the second application. The Applicant was granted leave to file supplementary submissions in rely in respect of the second application. Given the proposed consent orders referred to above, supplementary written submissions were not filed by the Minister in relation to the second application. However, for reasons only known to the Applicant’s solicitor, supplementary written submissions were filed in relation to the first application. For completeness, these submissions will be considered below.

6. The Applicant is a Sri Lankan national who arrived in Australia on 23 October 2008 on a subclass 573 Higher Education Sector student visa, which ceased on 15 March 2012 (SCB 2-5). The Applicant then applied for a subclass 572 student visa on 15 March 2012 on 30 October 2012. A delegate of the Minister refused to grant the visa. The Applicant then unsuccessfully sought merits review of this decision, with the then Migration Review Tribunal affirming the delegate’s decision not to grant the student visa on 12 September 2014. During this time, the Applicant was granted two bridging visas; a

   
   

   subclass 010 bridging visa from 15 March 2012 to 27 November 2012, and a subclass 020 bridging visa from 5 August 2013 to

   
   

   23 October 2014 (SCB 52). The Applicant was an unlawful non-citizen during the period between the two bridging visas, from 28 November 2012 to 5 August 2013. From 24 October 2014, when the second of the bridging visas expired, he again became an unlawful non-citizen.

7. On 10 August 2016, the Applicant was detained as an unlawful non-citizen (First Court Book (“FCB”) 1).

8. On 6 September 2016, the Applicant applied for the tourist visa. The Applicant was notified by a delegate of the Minister that this application was invalid as it did not meet s.48 of the Migration Act 1958 (Cth) (“the Act”) (SCB 30).

9. The Applicant applied for judicial review of this decision on 27 October 2016 (the first application). The application was filed in the Brisbane Registry of this Court, and was subsequently transferred by consent on 6 February 2017 to the Melbourne Registry of this Court.

10. On 6 January 2017, the Applicant applied for the bridging visa. This application was refused by a delegate of the Minister on

    
    

    10 January 2017. The Applicant applied for merits review of this decision on 20 January 2017. The Tribunal affirmed the delegate’s decision not to grant the Applicant a bridging visa. On 6 April 2017, the Applicant applied to this Court for judicial review (the second application).

11. On 28 April 2017, the Applicant was provided with a Notice of Intention to remove the Applicant from the Commonwealth of Australia, to occur on 7 May 2017. On 5 May 2017, the Applicant filed an Application in a Case, seeking orders that the Commonwealth be restrained from removing the Applicant from the Commonwealth of Australia. This Application was heard on 5 May 2017, whereupon orders were made by Judge Wilson restraining the Commonwealth from removing the Applicant from the Commonwealth of Australia until further order.

12. Both applications for judicial review were heard by me concurrently on 17 May 2017. As noted earlier, during these proceedings I raised with the Minister’s Counsel particular concerns, which might go to jurisdictional error, in relation to the second application.

13. The Minister requested and was granted an opportunity to file further written submissions on the issues raised. The Applicant was granted leave to file any further submissions in reply.

14. Orders were also made restraining the Commonwealth from removing the Applicant from the Commonwealth of Australia until the Court’s final determination of these proceedings. The Applicant remains in detention.

Judicial review

Extension of time pursuant to sub-s.477(2) of the Act

1. Pursuant to sub-s.477(1) of the Act, an applicant applying for judicial review in this Court is required to, “in relation to a migration decision”, make the application “within 35 days of the date of the migration decision”. As the Applicant’s application was filed on 27 October 2016, his application was filed out of time.

2. Pursuant to sub-s.477(2) of the Act, the Court may extend the 35 day period if:

   (a) an application for that order has been made in writing to the Federal Circuit 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 Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

3. In the first application for judicial review, the grounds that the Applicant specified for an extension of time were centred around the fact that he was required to engage a new migration lawyers “after having found his former migration agent incompetent if not fraudulent”.

4. In SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 (“SZRIQ”), Foster J dealt with an application for judicial review of a decision of this Court refusing to extend the time under sub-s.477(2) of the Act. His Honour identified the matters relevant to an application under sub-s.477(2) of the Act as follows (SZRIQ at [46]-[48]):

   46. There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice …”.  The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.

   47. The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context.  Commonly, those factors include:

   (a)     Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   (b)     Whether there is any prejudice to the Minister;

   (c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

   48. The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.

5. In MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 (“MZABP”) the Full Court of the Federal Court, whilst not actually deciding the point, approved the approach to s.477(2) of the Act elucidated by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391. In essence, her Honour said that if a Judge, in considering whether to extend time under the requirements of sub-s.477(2) of the Act, engages in what is apparently a full blown hearing, then the Judge will have erred in discharging his/her discretion. The Full Court referred to this extract from her Honour’s decision (MZABP at [21]-[22]):

   21. Her Honour nonetheless continued to express her “disquiet” about the manner in which the FCC had dealt with the factor of the merits of the appellant’s proposed grounds of review in considering the application to extend time “lest these reasons be taken as an endorsement of the approach taken by the Federal Circuit Court” (at [61]). In this regard, her Honour held first that:

   61. ... it 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, 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 (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7]- [9]) 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 [2013] FCA 1284; 139 ALD 252 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.

   22. In this regard, her Honour expressed her agreement with the observations of Wigney J in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 (appeal dismissed in SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158). In particular, her Honour agreed with Wigney J in SZTES at [102] that the practice in the FCC of listing both an application for an extension of time and the final hearing together may encourage an undue focus upon the merits of the proposed grounds of review and result in an artificial approach to the extension of time application. Nonetheless, her Honour considered that, provided that the proper tests are applied, there is no reason why that practice cannot be followed.

   (emphasis added)

6. The Full Court said (MZABP at [38]):

   … we endorse her Honour’s disquiet about the approach adopted by the FCC and also endorse the approach which her Honour so clearly elucidated as to the proper disposition of applications for extensions of time:  see above at [21]-[23]…

Explanation for delay and prejudice

1. The Applicant has not provided any admissible evidence that his former migration agent was incompetent or engaged in fraudulent conduct.

2. I have had regard to the fact that the Applicant was in detention, and that he would have faced practical or logistical difficulties in obtaining new representation, and in obtaining advice regarding the legal options available to him.

3. In these circumstances, I am satisfied that there is a reasonable explanation for the delay (which is a short period).

4. I am satisfied that there is no real prejudice that would be occasioned to the Minister, were the Court to grant an extension of time.

Substantive case

1. Adopting the approach approved by the Full Court in MZABP, I find however, that the Applicant’s ground of judicial review, on the face of the material before me, “plainly hopeless”. I do so for the reasons set out below.

2. The Applicant’s ground of judicial review is as follows:

   The Respondent committed jurisdictional error when they failed to consider that the Department had failed to discharge its obligation under s194 of the Act and failed to ensure that the applicant was made aware of the provisions of sections 195 and 196 of the Act.

   Particulars

   In its Decision Record at the second paragraph the Respondent noted that the very important notice (VIN) was provided to the applicant at the time of detention and that the applicant had provided and signed the VIN receipt. However, the applicant was not given adequate time to read and comprehend what he was signing. The Respondent therefore had not granted the Applicant adequate time to read and understand the Very Important Notice (WIN) thus failing to discharge the Department’s obligations under ss 194, 195 and 196 of the Act. This amounts to failure to accord the Applicant natural justice and is the basis of jurisdictional error.

3. It is to be noted immediately that the Applicant does not cavil with the correctness of the Notification of an Invalid Application dated 6 September 2016. There can be no doubt that the Applicant’s application for the tourist visa did not meet the requirements of s.48(1) of the Act and the relevant prescribed regulations, being reg.2.12 of the Migration Regulations 1994 (Cth) (“the Regulations”).

4. The Applicant’s ground of review is that the delegate’s notification of an invalid application was affected by jurisdictional error because the Department failed to discharge its obligations under ss194-196 of the Act. The Applicant claims, in both his written and oral submissions, that this failure was caused because the Department did not allow the Applicant sufficient time to read and understand the Very Important Notice (“VIN”) before the Applicant was required to sign the VIN on 10 August 2016 (SCB 14-16). This, the Applicant submits, amounts to a denial of procedural fairness. The Applicant submits that the effect of the Applicant having been denied procedural fairness and the Department having failed to comply with ss.194-196 of the Act, is that the decision of the delegate dated 6 September 2016 is affected by jurisdictional error.

1. It is appropriate to set out the provisions of ss.194-196 of the Act, and the relevance of a VIN.

2. Section 194 of the Act provides:

   As soon as reasonably practicable after an officer detains a person under section 189, the officer must ensure that the person is made aware of:

   (a)  the provisions of sections 195 and 196; and

(b)  if a visa held by the person has been cancelled under section 137J--the provisions of section 137K

1. Section 195 of the Act provides:

   (1)  A detainee may apply for a visa:

   (a)  within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or

   (b)  if he or she informs an officer in writing within those 2 working days of his or her intention to so apply--within the next 5 working days after those 2 working days.

(2)  A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.

1. Section 196 of the Act provides:

   (1)  An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

   (a)  he or she is removed from Australia under section 198 or 199; or

   (aa)  an officer begins to deal with the non-citizen under subsection 198AD(3); or

   (b)  he or she is deported under section 200; or

   (c)  he or she is granted a visa.

   (2)  To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.

   (3)  To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.

   (4)  Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.

   (4A)  Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.

   (5)  To avoid doubt, subsection (4) or (4A) applies:

   (a)  whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and

   (b)  whether or not a visa decision relating to the person detained is, or may be, unlawful.

   (5A)  Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.

   (6)  This section has effect despite any other law.

   (7)  In this section:

   “visa decision” means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).

   (emphasis in original)

2. The VIN is contained in a pro forma Form 1423, and is said to be in relation to the detention of an unlawful non-citizen. In bold, Form 1423 states:

   You need to:

   ·    Read this notice

   ·    Sign to show that you have read and understand the information in this notice

   ·    Ask an immigration officer if you have any questions about the notice of your detention.

3. Under the heading, “Visa application time limits (Section 195 of the Act)”, Form 1423 states (SCB 15):

   Please note that in most cases there are time limits on applying for visas (other than for bridging visas or protections visas) while you are in detention. In accordance with section 195 of the Act you may apply for a visa within 2 working days after the day on which you receive this notice, or you can inform an officer in writing within those 2 working days of your intention to apply – within the next 5 working days after those 2 working days.

   If you do not apply for a visa within the time allowed, you may not apply for a visa, other than a bridging visa or a protection visa, after that time.

4. There is no dispute that the Applicant signed the VIN on 10 August 2016 (the day on which he was detained). The Applicant’s complaint is that he was not given an opportunity to read the documents and was asked to sign the VIN immediately. This complaint is contained in an affidavit affirmed by Kon-ming Tsai filed on 8 November 2016. The deponent is the Applicant’s former legal representative.

5. In the Applicant’s supplementary written submissions filed

   
   

   1 June 2017, the Applicant’s current legal representative goes further, asserting in strident terms that “…at the Brisbane Immigration Transit Accommodation Centre, an Immigration officer… had forcibly obtained the signature of our client…” (at [1]). The Applicant’s legal representative then makes very serious allegations that he was informed by the Applicant that the particular Australia Border Force officer had (at [3]):

   … forcibly obtained our client’s signature on the VIN form and inserted fraudulent information into this form… We submit that this is a serious breach of the Migration Act and its amendments and a violation of procedural fairness and an abuse of power by DIBP officials.

   (emphasis in original)

6. In correspondence dated 30 August 2016, sent to the Department, the Applicant’s legal representative complained that the Applicant had instructed him that he was not afforded his rights under ss.194-195 of the Act (SCB 64-66).

7. A director of the Australian Border Force Ministerial Correspondence Section responded to this complaint on 5 September 2016, stating (SCB 68):

   I note your concerns regarding whether the very important notice (VIN) was provided to [the Applicant] at his time of detention. The Department of Immigration and Border Protection has reviewed the detention of [the Applicant] and found that [the Applicant] was provided and signed the VIN receipt. A copy of the signed VIN receipt is attached for your reference. [The Applicant] was presented with a full copy of this document, in Tamil and English, at the time of his detention. He opted for the English version, due to his fluent English.

8. The Applicant also complains, in his supplementary written submissions, that the Department’s response to a Freedom of Information (“FOI”) request made on 25 October 2016 to obtain a video cassette of the interview process, during which the Applicant signed the VIN. Again, a serious allegation is made that the relevant members of the Department “have prima facie hidden the cassette tape”. For the reasons set out below, I have not considered it necessary to consider or determine such a serious allegation.

9. In my opinion, the Applicant’s ground of judicial review, is, on the face of the material before the Court, plainly hopeless:

   a)the decision the Applicant seeks to impugn was made only on the basis that the application was invalid because of the operation of s.48(1) of the Act. The failure of the Applicant to apply for the tourist visa within the 2 day notice period contemplated within s.195 of the Act clearly played no part in the delegate’s notification to the Applicant on 6 September 2016 that his application for the tourist visa was invalid;

   b)on the face of the evidence before the Court, the Department complied with ss.194-196 of the Act (see [26]-[34] above). The Applicant has not filed direct evidence by affidavit regarding his complaint that he was not given an opportunity to read and/or understand the VIN; and

   c)the Applicant commenced being represented by his current legal representative on 22 August 2016 (FCB 8-11). His lawyer attended the Brisbane Immigration Transit Accommodation on 24 August 2016 for an interview with the Applicant (CB 8). The application for the tourist visa was made on 6 September 2016. It can safely be concluded that the Applicant made this application upon the advice of his legal representatives, who are specialist immigration lawyers, after having the opportunity to instruct these lawyers.

10. In these circumstances, the Applicant’s ground that he was not afforded procedural fairness, and/or that the Department failed to comply with ss.194-196 of the Act (with the consequence that the notification decision of the delegate is affected by jurisdictional error) has no substantial prospect of success.

11. The Applicant’s submissions, contained in his supplementary written submission, that he was “forcibly” required to sign the VIN and his allegations that Immigration Officers have fraudulently inserted information in the VIN and hidden the video cassette recording of the interview when he signed the VIN, have been made without any supporting probative evidence and are, therefore, devoid of merit.

Conclusion

1. I am not satisfied that it would be in the interests of the administration of justice to grant the Applicant an extension of time to make his first application for judicial review. An Order will be made refusing the application for an extension of time under s.477(2) of the Act. An Order will also be made for the hearing of oral submissions in relation to the question of costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 29 June 2017