Ametllari v Minister for Immigration and Border Protection
[2015] FCCA 603
•23 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMETLLARI v MINISTER FOR IMMIGRATION | [2015] FCCA 603 |
| Catchwords: MIGRATION – Partner visa – visa cancellation without notice to applicant – review of decision of Minister’s delegate. ADMINISTRATIVE LAW – Extension of time to bring application – allegation that delegate’s decision affected by jurisdictional error by reason that delegate failed to give consideration to the applicant’s circumstances before cancelling visa without notice – allegation that delegate’s decision contained factual errors, took into account an irrelevant consideration and was affected by apprehended bias. |
| Legislation: Migration Act 1958 (Cth), ss.5E, 118(3), 127A, 128, 129, 131, 474, 476, 477, 501, 501C |
| SZNZI v Minister for Immigration [2010] FMCA 57 Hu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 63 Singh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1163 Cheaib v Minister for Immigration & Multicultural & Indigenous Affairs (1997) 75 FCR 308 Re Patterson; ex parte Taylor (2001) 207 CLR 391 Minister for Immigration, Multicultural Affairs & Citizenship v SZRHU (2013) 215 FCR 35 CPCF v Minister for Immigration & Border Protection [2015] HCA 1 Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093 Shop, Distributive and Allied Employees Association v National Retail Association(No 2) [2012] FCA 480 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 SZUZY v Minister for Immigration & Anor [2015] FCCA 502 Yilmaz v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 100 FCR 495 NBMW v Minister for Immigration & Citizenship (2013) 213 FCR 309 Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 Twist v Randwick Municipal Council (1976) 136 CLR 106 | ||
| Applicant: | EGLA AMETLLARI | |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | MLG 750 of 2014 |
| Judgment of: | Judge Smith |
| Hearing date: | 25 February 2015 |
| Date of Last Submission: | 2 March 2015 |
| Delivered at: | Sydney and Melbourne (by videolink) |
| Delivered on: | 23 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr W. G. Gilbert |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Counsel for the Respondent: | Mr J. Forsaith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application for an extension of the period within which to make an application under s.476 of the Migration Act 1958 (Cth) be dismissed.
The applicant pay the respondent’s costs fixed in the amount of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 750 of 2014
| EGLA AMETLLARI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
This is an application for an order under s.477(2) of the Migration Act 1958 (“Act”) extending the period within which to bring an application under s.476 of the Act in relation to decisions of two delegates of the respondent.
The first delegate’s decision was to cancel the applicant’s BC Partner (Migrant) visa under s.128 of the Act. The second delegate’s decision was to refuse to revoke the decision of the first delegate. Thus, depending on whether they were affected by jurisdictional error, they were either privative clause decisions within the meaning of s.474(2) or purported privative clause decisions within the meaning of s.5E of the Act: see s.474(3)(b). Consequently the decisions were migration decisions and any application to this Court for a remedy to be granted in the exercise of the Court’s original jurisdiction had to have been made within 35 days of the date of each decision.
Initially, the application was brought on the basis that both decisions were affected by jurisdictional error. Ultimately, however, the applicant only argued that the first decision was affected by such error. She argued that, in the event that the first decision was affected by error, it would follow that the second decision ought to be set aside. The Minister accepted that argument and, to the extent that the merits of the application were argued, the hearing before the Court focused on the first decision. For that reason, it is convenient to refer to the first decision as the decision. Similarly, unless stated otherwise, any reference to a delegate is a reference to the first delegate.
The date of the decision was the date of the written notice of the decision, namely 8 October 2012. That means that any application under s.476 of the Act was required to have been made by 12 November 2012. No application was made by that date. This application was commenced on 23 April 2014, a little over 17 months later.
This Court has power under s.477(2) of the Act to extend the 35 period as it considers appropriate if:
a)an application for that order has been made in writing to the 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 Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
In these proceedings it is not in issue that the first of these conditions has been satisfied. The issue is whether the second condition is met.
In SZNZI v Minister for Immigration [2010] FMCA 57 Smith FM said this about the Court’s discretion to extend time under s.477(2):
[11]The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two “critical” considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration [2009] FMCA 1161 at [40]–[41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two “critical” considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the court must weigh all of the relevant circumstances together by reference to the statutory criterion provided in s 477(2)(b), quoted above.
In her application, as amended on 19 January 2015, the applicant relies on the following matters in support of the submission that it is necessary in the interests of the administration of justice to make an order under s.477(2):
a)her family had great difficulty in obtaining legal advice particularly given their difficulty with the English language;
b)there are multiple jurisdictional errors in the decisions of the two delegates and the prospects of success are good. (Although, as already noted, the applicant no longer seeks any relief in respect of the decision of the second delegate, it is relevant to the prospects of success and I will return to it in due course);
c)the prejudice to the applicant is high as she is dependent on her family and has been prevented from joining her family in Australia;
d)there is no prejudice to the respondent; and
e)the application raises significant issues regarding the process of offshore cancellation of visas without notice.
I have carefully weighed all of these matters and have also considered the lack of any appeal from a decision to refuse to grant an extension of time.
I find that there has been no acceptable explanation given for the inordinate delay in bringing these proceedings within the time provided in s.477(1). Even allowing for some delay due to the process of applying for revocation of the cancellation decision, I find that neither the applicant nor her family has made any real effort to pursue legal redress in respect of the cancellation and the period of delay is inexcusable. In addition, although the grounds in the amended application are not entirely without merit, that merit is insufficient to outweigh the delay in this case.
Noting the prejudice to the applicant (including the unavailability of an appeal) and the lack of any apparent prejudice to the Minister, I am not satisfied that it is necessary in the interests of the administration of justice to extend the period under s.477(1).
For those reasons, as explained more fully below, I dismiss the application for an order under s.477(2).
Factual background
The applicant is a citizen of Albania. On 10 March 2011 her father applied for a Partner (Migrant) (Class BC) visa sponsored by his wife who was an Australian citizen. The applicant, then aged 21, was included in that application as a dependent as was her younger sister. The applicant, her father and her sister were all granted visas on 17 July 2012.
On 27 September 2012 a registered migration agent, Merushe Asim, called the Department of Immigration informing it that the applicant had given birth to a child four weeks earlier and asking whether a tourist visa application could be lodged for the child. That call prompted a delegate of the Minister to interview the applicant by telephone about her dependency on her father. Subsequently, the delegate made a decision to cancel the applicant’s visa.
The delegate found that the applicant had concocted her dependency on her father and that she had in fact been in a de facto relationship with a Mr Beco, the father of her child. The cancellation decision was made without notice under s.128 of the Act as the delegate thought it appropriate because “the alternative – providing Notice before cancellation – may not prevent (the applicant) from travelling.”
The applicant applied for revocation of the cancellation decision with the assistance of Ms Asim, her migration agent. On 25 January 2013 another delegate decided not to revoke the cancellation.
These Court proceedings were then commenced on 23 April 2014.
Consideration
The merits of the grounds proposed to be raised
It is convenient to deal first with the grounds upon which the applicant relies to argue that the delegate’s decision was affected by jurisdictional error and that this matter raises significant issues in relation to the cancellation of visas.
Ground 1
The first ground of the application was a general introduction to the matter and did not contain any substantive ground. It is necessary to mention it only to explain the numbering of the other grounds.
Ground 2
The application concerns the exercise of power to cancel a visa without prior notice. In Hu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 63 (“Hu”) Sackville J described the relevant scheme of cancellation as follows:
[75]Subdivision E of Part 2 Div 3 of the Act establishes a procedure for the cancellation of visas where the visa holder is either inside or outside Australia. The procedure requires notice of the proposed cancellation to be given to the visa holder, who must also be invited to make representations as to why the visa should not be cancelled.
[76]Subdivision F, by contrast, establishes a procedure for the cancellation of a visa without prior notice to the visa holder. Section 128 requires the Minister to be satisfied of two matters before the power can lawfully be exercised. The Minister must be satisfied that
(i)there is a ground for cancelling a visa under s 116 (s 128(a)(i)); and
(ii)it is appropriate to cancel in accordance with Subdiv F (that is, without notice to the visa holder) (s 128(a)(ii)).
In addition, it is necessary for the visa holder to be outside Australia at the time of cancellation (s 128(b)). Since this requirement is not expressed to be a matter of the Minister’s satisfaction, the visa holder must in fact be outside Australia at the time of cancellation.
The second ground in the application is that the delegate failed to give any consideration to the question of whether, having regard to the circumstances of the case, it was appropriate to cancel the applicant’s visa without notice under subdiv.F of div.3 of pt.2 of the Act as opposed to with notice under subdiv.E of that division.
Left at that level of generality, the second ground must fail. As already noted at [15] above, the delegate did consider whether it was appropriate to proceed under s.128 of the Act. The applicant implicitly acknowledges that much in her written submissions and appears now to argue that the delegate erred in two more particular respects. The first is by failing to consider the harm, or the risk that travelling to Australia might pose, or the risk to be avoided, or whether the applicant would breach any conditions of her visa if in Australia. The second is that there was no intelligible justification for the decision to deny the applicant the “all-important right to procedural fairness”.
The applicant relies on the decision of Driver FM (as his Honour then was) in Singh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1163 (“Singh”) in respect of both these arguments. The respondent argues that it was unnecessary for the delegate to consider whether it was appropriate to cancel the visa under subdiv.F as opposed to subdiv.E of div.3 of pt.2 of the Act or to identify some harm or risk posed by travel to Australia. Instead, he argues, the question of appropriateness is to be determined in all the circumstances of the case which may, or may not, involve risk of harm.
In Singh, the delegate explained in the notice under s.129 of the Act that she was “concerned that there is a possibility that the applicant may attempt to enter Australia if she was given prior notice of any cancellation.” Judge Driver found that this revealed jurisdictional error in the decision to cancel the applicant’s visa. He said, at [103]:
… The delegate was bound to consider whether the exercise of power was “appropriate”. That consideration, in the context of this case, where the applicants presented no apparent risk should they have re-entered Australia, was manifestly inadequate. That establishes jurisdictional error.
According to his Honour, the inadequacy in the consideration was that, while it would be relevant to consider the possibility that the visa holder might seek to re-enter Australia, a “proper consideration of that issue necessitates a consideration of the consequence of that possibility occurring”: Singh at [99]. His Honour expressed the view, at [100], that it would not be “appropriate” to cancel under subdiv.F if it would be more “appropriate” to cancel under subdiv.C or subdiv.D of div.3 of pt.2 of the Act and found that there had been no consideration of the relative merits of cancellation under any division other than subdiv.F. Further, he said, at [102], that it “could not be “appropriate” to cancel a visa without notice if the only consequence of a failure to do so is that the non-citizen would be able to enjoy procedural protections Parliament has afforded, and a right enjoyed under International law.”
The decision in Singh turned on the particular factual context that was before the delegate as well as the inferences drawn by Judge Driver as to the delegate’s reasoning. In Hu, the Full Court was divided on the issue of what inferences should be drawn about the delegate’s reasoning process: see Hill and Marshall JJ at [13] and [18] and Sackville J at [89]. That case, unlike this case, involved notification under s.129 by means of a standard form.
On the facts of this case, I do not find that the delegate failed to consider all of the circumstances of the case in determining whether it was “appropriate” to cancel the visa under subdiv.E. There was no obligation on the delegate to give any reasons at all for her determination of that issue and the fact that she mentioned only one matter does not persuade me that that was the only matter to which she turned her mind. The most that can be said is that it was determinative of the issue of whether it was appropriate to cancel the visa in accordance with subdiv.F rather than another subdivision.
For that reason I find that, although it is not entirely without merit, the first ground would fail. As a consequence, the important question concerning the offshore cancellation of visas does not really arise. Further, it is strictly unnecessary for me to address the decision in Singh. However, in my view, Judge Driver was clearly wrong to find that it could not be “appropriate” to cancel a visa without notice if the only consequence of a failure to do so is that the non-citizen would be able to afford procedural protections afforded by Parliament and a right enjoyed under international law: see [102] of Singh.
First, as noted by the Full Court in Cheaib v Minister for Immigration & Multicultural & Indigenous Affairs (1997) 75 FCR 308, the Explanatory Memorandum that accompanied the Migration Reform Bill 1992 which introduced s.128 revealed that the power given under that provision was aimed at visa holders who might respond to a notice by travelling to Australia in the belief that it would be more difficult for the person’s visa to be cancelled and the person removed: item 149 at p.39.
Secondly, as s.118(3) makes clear, the various cancellation powers are not limited by or otherwise affected by each other.
Thirdly, it is not the case that a person whose visa is cancelled under s.128 is denied procedural fairness. Section 127A provides that subdiv.F (ss.127A – 133) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Section 129 requires notice to be given of a decision under s.128 that also states that the former visa holder has the opportunity to have the cancellation decision revoked. Section 131 provides the power to revoke the decision after consideration of any response to the notice under s.129. Thus, like the provisions in ss.501(3) and 501C(3), ss.128 - 131 operate together: see Re Patterson; ex parte Taylor (2001) 207 CLR 391 at 453 [190] per Gummow and Hayne JJ. It is a fundamental principle of statutory construction that legislation be read as a whole. Once that is done it is clear that a person whose visa is cancelled under s.128 does have the right to be heard in respect of the loss of his or her entitlement to enter Australia. Thus, there is no draconian consequence that requires a restrictive approach to what may or may not be “appropriate” within the meaning of s.128. Certainly, there is no warrant for reading that word as though it meant “more appropriate”.
Fourthly, the international rights to which Judge Driver referred do not support his Honour’s conclusions. The right to freedom of movement expressed in Article 12 of the International Covenant on Civil and Political Rights (“ICCPR”) does not extend to a right to enter Australia. That right or entitlement is, at least in the case of non-citizens (cf. the position of citizens in Article 12(4) and see Minister for Immigration, Multicultural Affairs & Citizenship v SZRHU (2013) 215 FCR 35 at 57 to 63 per Flick J), governed by the visa system. Visas granted under that system are always subject to the power of cancellation. Of course, if his Honour was referring to the right to move around once in Australia, he was correct to link it to the ICCPR. However, as that right must be contingent upon entry into Australia, it has no bearing on the proper construction of the power to cancel visas found in s.128 of the Act.
Ground 3
The third ground is put in two different ways: first, that the delegate’s decision contained factual errors which affected the reasoning process and, secondly, that the delegate took into account an irrelevant consideration, namely, a fact that did not exist.
The factual errors relied on are that the delegate stated that:
a)the applicant attended an interview at the Australian embassy in Belgrade on 9 February 2012 whereas the interview actually took place on 8 December 2011; and
b)the telephone number provided for contacting the applicant was an Albanian number whereas the only landline telephone numbers for the applicant are Greek numbers.
The applicant argues that these errors led to jurisdictional error because they affected the delegate’s reasoning process. The applicant also submits that the error could be described as taking into account an irrelevant consideration, namely the existence of a fact that did not exist.
The second asserted factual error can be dealt with very briefly. The delegate did not rely on a number in the visa application, but a number “provided for contacting the applicant”. While it may be true that the telephone number in the visa application was a Greek number, the number given by the applicant’s migration agent was not. It was Albanian (a fact accepted by the applicant) and so there was no factual error made by the delegate in that respect.
The applicant argues, in the alternative, that the delegate erred even if there was an Albanian telephone number given for the applicant. The error was in finding that there was no reason for there to be an Albanian number if the applicant was genuinely living in a dependent relationship with her parents in Greece. The basis for this argument was that the applicant’s parents left Greece for Australia in early September whereas the Albanian phone number was only given to the Department by the applicant’s agent towards the end of September. Thus, it was argued, because the parents were no longer in Greece, the applicant could not have been living with them and the fact that the contact phone number was Albanian could have had no logical bearing on the delegate’s decision.
The difficulty with this argument is that it makes a number of unstated and unproven assumptions. There is nothing to establish, for example, that the delegate knew that the applicant’s parents had left Greece or that the telephone number was only a recently acquired one. For those reasons I would reject this argument.
Returning to the first argument in this ground, it may be noted that the principal difficulty is the nature of the factual error relied on. The date of the interview was not a jurisdictional fact. For that reason, it is not for the Court to determine on the evidence before it whether or not the interview was held in February 2012 or December 2011. If that were the case the Court could have regard to material that was not before the delegate. I raised this issue at the hearing with Mr Gilbert who appeared for the applicant. Ultimately, although he did not seek leave to re-open his case, he asked (and obtained) leave to file an agreed statement of facts. The following statement was filed in accordance with the leave given:
Following a careful review of the documents on the Departmental file, the parties agree that the applicant attended an interview on 8 December 2011, and this appears to be the interview with the applicant incorrectly referred to by the delegate as having taken place in February 2012. The applicant’s mother was interviewed by telephone in February 2012, but there is no indication that any other member of the family took part in that interview.
Although that statement did not comply with the formalities of s.191 of the Evidence Act 1995 (Cth), I propose to have regard to it for the purposes of determining the possible merits of any substantial application that may be made if an extension of time is granted under s.477(2) of the Act. That said, as was recently exposed in CPCF v Minister for Immigration & Border Protection [2015] HCA 1, and as I mentioned to Mr Gilbert at the hearing, agreed statements of fact do not always establish what is required in order to obtain the relief sought. In my view, the statement provided by the parties falls into that category.
The first question for the Court is, in short, whether it was reasonably open to the delegate to find, as she did, that the interview took place in February 2012. If so, there was no jurisdictional error. If it was not open to the delegate to make that finding a second, more difficult, question arises: did the error constitute jurisdictional error? While that question is not without difficulty, it requires at least an analysis of the delegate’s reasons and the importance of the relevant fact to those reasons: cf. Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; see also SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093.
In my view, the applicant must fail at the first of these questions and the second question does not arise. Bearing in mind that there need only be a skerrick of evidence to support a finding of fact (Shop, Distributive and Allied Employees Association v National Retail Association(No.2) [2012] FCA 480 at [31] per Tracey J citing Aronson, Dyer and Groves, “Judicial Review of Administrative Action” (Fourth Edition) at 259) I am not satisfied that there was no basis at all for the delegate’s finding that the interview took place in February 2012. The highest that the evidence before me goes is the following statement in the reasons for the decision of the second delegate:
I agree with Merushe Asim’s observation that the original cancellation decision record did cite an incorrect date for your interview at 9 February 2012, which was unfortunate and I confirm that the correct date was 8 December 2011.
There is no indication in the evidence of how the second delegate confirmed the correct date and whether the source of his information was also before the first delegate. Similarly, as I have already noted, the statement of agreed facts does not go so far as to establish what was and what was not before the delegate.
Given that it is for the applicant to prove the necessary factual basis for his claim that there was jurisdictional error, and the applicant has not done that in this case, this ground will fail. That said, as with the first ground, it is not entirely without merit and I have taken that fact into account in the exercise of the court’s discretion.
Ground 4
The fourth ground relies on the same factual errors and is likely to fail for the same reason as the second ground.
Ground 5
The fifth ground is that the accumulation of errors asserted in second, third and fourth grounds gives rise to a reasonable apprehension of bias. As I reject those grounds, I would also reject this ground. However, there is a more fundamental difficulty with the argument. The test of reasonable apprehension of bias, formulated by reference to how a fair-minded bystander might view the matter before determination of the case, cannot rely on the final judgment: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 (“Michael Wilson”) at [67] per Gummow ACJ, Hayne, Crennan and Bell JJ.
The applicant submitted that the reasoning in that case does not apply in the present circumstances: first, there was no hearing at all; and secondly, there was no court or tribunal. The applicant is correct to distinguish the circumstances of this case from those considered by the High Court in Michael Wilson as well as to rely on the different character of the decision maker in this case. However, the reasoning in the judgment of the plurality in Michael Wilson turned on the objective nature of the inquiry required in determining an allegation that there is a reasonable apprehension of bias: at 437 [32]. The plurality reasoned from that basis as follows at 446 [67]:
… An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side’s arguments or otherwise, demonstrates prejudgment.
(references omitted, emphasis in the original)
The test for determining the apprehension of bias in respect of administrative decision makers, whether they be tribunals or individuals, is as objective as it is in respect of judges. For that reason, as well as for reasons more fully expressed in SZUZY v Minister for Immigration & Anor [2015] FCCA 502, I consider that the reasoning in Michael Wilson is applicable to these proceedings.
Thus, as the applicant does not assert actual bias, she cannot rely on any mistakes in the reasons for the decision of the delegate to support the claim of a reasonable apprehension of bias.
The applicant argues, in the alternative, that the notes of the interview of the applicant conducted by the delegate demonstrate a reasonable apprehension of bias because they show:
“… the limited nature of the inquiry, and absence of any puttage[1] on matters which were later critical to the decision.”
[1] Although this word does not appear in any standard dictionary, I understand this word to mean “the part of a client’s instructions about the essential facts of the case that an advocate puts to an opposing witness in order to give the witness an opportunity to deny, rebut, explain or qualify it” (Mann & Blunden (eds.), “Australian Law Dictionary” [online], 2010).
I reject that argument. The notes of the interview were clearly only a summary of what took place during the interview and, even if they showed that the delegate did not give the applicant an opportunity to address every aspect of the information of which she was then aware, they do not give rise to any apprehension that the delegate may have prejudged the matter. For all of those reasons, the fifth ground is likely to fail.
As I consider that there is little merit in any of the applicant’s grounds, it is not necessary to consider the respondent’s argument that relief ought to be refused in the exercise of the Court’s discretion because the applicant sought revocation of the cancellation and does not challenge the decision on that application. It is true, as the respondent submits, that the Court can refuse relief where there is an alternative avenue, such as an appeal or right to review. However, the power to refuse relief in both at common law and in its statutory analogues requires close analysis of the alternative avenue: see, for example, Yilmaz v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 100 FCR 495 at [92], [96] and NBMW v Minister for Immigration & Citizenship (2013) 213 FCR 309.
I have not been taken to any authorities in which a court has refused relief in respect of a decision to cancel in light of the availability of a decision to revoke the cancellation. The argument was raised on appeal in Hu, but appears not to have been determined: see [2004] FCAFC 63 at [102]. Here, the respondent acknowledges that the discretion to revoke the cancellation is not entirely the same as the discretion to cancel. It may also be noted that the decision to revoke is also to be made the Minister or his or her delegate, thus making it an appeal from Caesar to Caesar: see Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 62. Finally, the complaints about the first decision here are not that there was a denial of procedural fairness (although finding facts without evidence could fall within that description) and so does not readily fall within the line of cases following Twist v Randwick Municipal Council (1976) 136 CLR 106.
For those reasons, it is unlikely that I would have refused relief if jurisdictional error had been established in the decision to cancel the applicant’s visa.
The delay in bringing the application
The applicant seeks an extension of a little over 17 months. The reasons for which she did not bring this application are set out in the affidavit of her solicitor, Karyn Anderson. That evidence deals with three different periods: the time from the decision of the first delegate to the decision of the second delegate on 25 January 2013, the period from that decision until 16 January 2014, and the period from 16 January 2014 to the time of filing this application, 23 April 2014.
The first period presents no difficulties: the applicant was pursuing her right to have the cancellation revoked in accordance with the scheme of subdiv.F. The respondent suggests that this fact presents a reason why relief should be refused in the exercise of the Court’s discretion. I will deal with that submission below, but consider that there was a reasonable excuse for not bringing these proceedings in that period.
The second period is different. The entirety of the evidence in respect of it is set out in Ms Anderson’s affidavit as follows:
[4]I am instructed that, despite being provided with immigration assistance from three migration agents, two of whom were lawyers, the applicant’s family in Australia have not been provided with definitive advice in relation to the applicant’s situation. Most recently, they sought the advice of an agent and lawyer who deliberated on their matter for around seven months before determining that he was not able to help due to the complexity of the matter. This was outside the clients’ control.
[5]I am instructed that the family do not speak English and so have relied on the assistance of Mr Doris Satka (“Mr Satka”), which has significantly slowed down the process in terms of the family coming to any proper understanding of their legal situation and future options.
There is no evidence that the applicant was unaware of the time limit on bringing proceedings. Indeed, as she had the assistance of a migration agent assisting her in the application for revocation, one could readily infer that she did know that time limit. Certainly, by the time the applicant’s family had engaged the services of the unnamed migration agent and lawyer (which time has not been specified) they (and by extension, the applicant) would have been aware that time was limited. In spite of that, the sparse detail of the evidence convinces me that in this period the applicant made no real effort to pursue any avenue of legal redress. For example, I am left not knowing what advice was actually given and am only told that it was not “definitive”. I do not know if the applicant or her family pursued the migration agent/lawyer during the seven months referred to in the evidence or simply waited passively for him or her to take action. I do not accept that the family’s English language skills, or lack thereof, prevented them from actively pursuing the applicant’s interests. It will be recalled that the applicant’s father had successfully applied for a visa and that the applicant engaged a migration agent to assist with the revocation application. For those reasons, I find that there was no reasonable excuse for the failure of the applicant to commence these proceedings in the period between January 2013 and January 2014.
By contrast, the final period from January 2014 to April 2014 does reveal that the applicant took reasonable steps to pursue legal redress. They approached the firm now acting in these proceedings and followed the advice given to them to seek counsel’s advice, apply for information from the Department and ultimately instructed the firm to bring these proceedings.
Unfortunately, given the unreasonable delay of over one year from January 2013, the efforts made in the last period were too little too late. Looking at the delay as a whole, I find that the applicant has given an insufficient explanation as to why she did not bring proceedings earlier. As the delay was well over one year I give this factor significant weight.
Other matters
As I have already noted, I have considered the fact that there is some prejudice to the applicant: if an extension is not granted, she will be unable to have her arguments heard on a final basis and will have no right of appeal to the Federal Court. The applicant also says that she is prejudiced because she is dependent on her family and cannot now join them in Australia. I can see no evidence to support the first of those assertions and do not think that the second is necessarily relevant. The point is that the applicant’s visa was cancelled and she failed in her attempt to have that cancellation revoked. It is for that reason that she cannot come to Australia for the moment as a resident and it may well be that she will be refused a visa in the future on the basis of the cancellation. However, an extension of time will not cure that. All that it will allow is an opportunity for her to argue the merits of her claim that the cancellation was invalid. That is a valuable opportunity, but it does not equate to the opportunity to join her family in Australia. That said, I accept that there is an argument to the contrary and that the ultimate prejudice caused by the cancellation decision might be taken into account. For that reason, I do give that prejudice some weight, although that weight is diminished because of my view of the merits of the applicant’s substantive arguments.
Conclusion
Taking all those matters into account, I am not satisfied that it is in the interests of the administration of justice to make the order extending time under s.477(2). For that reason, I refuse to make an order under s.477(2). I order that the application for an extension of the period within which to make an application under s.476 of the Act be dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 24 March 2015
CORRECTIONS
Cover sheet and Orders: Page 2, delete “$6,646” and insert “$6,825”.
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