BDXN v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

BDXN v Minister for Home Affairs [2023] FCA 951

Appeal from: Application for extension of time for judicial review of Minister's decision
File number: QUD 409 of 2021
Judgment of: RANGIAH J
Date of judgment: 15 August 2023
Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for extension of time for judicial review of decision made under s 501CA(4) – where application 12 months out of time – whether adequate explanation for delay – where no reasonable prospects of success – application dismissed

EVIDENCE – leave sought to adduce further affidavits – leave granted

Legislation: Migration Act1958 (Cth) ss 476A, 477(3)(d), 477A, 501(3A) and 501CA(4)
Cases cited:

Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 383 ALR 194

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109

DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175

Minister for Immigration and Citizenship v Administrative Appeals Tribunal (2013) 214 FCR 10

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203

NRFX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 21

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417

Pohahau v Minister for Home Affairs [2019] FCA 1243

Smith v Minister for Home Affairs [2018] FCA 1594

SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298

Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819
Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 74
Date of last submissions: 12 September 2022 (Respondent) (suppressed)
26 October 2022 (Applicant) (suppressed)
Date of hearing: 29 July 2022 and 27 October 2022
Counsel for the Applicant: Mr M Jones
Counsel for the Respondent: Mr B McGlade
Solicitor for the Respondent: Sparke Helmore

ORDERS

QUD 409 of 2021
BETWEEN:

BDXN

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:

RANGIAH J

DATE OF ORDER:

15 AUGUST 2023

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the respondent’s costs of the application.

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


REASONS FOR JUDGMENT

Background

[6]

The legislation

[26]

The grounds of review

[29]

The submissions

[30]

Consideration

[35]

Length of delay

[37]

Explanation for delay

[40]

Prejudice to the Minister

[45]

Merits of the proposed application

[46]

Ground 1: Whether the Minister’s conclusion that the applicant is at risk of repetition of violent offending was irrational and legally unreasonable

[49]

Ground 2: Whether the Minister’s failure to make an enquiry about a critical fact was irrational and legally unreasonable

[60]

Conclusion

[72]

RANGIAH J:

  1. The applicant seeks an extension of time to apply for judicial review…

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Details
Case
[2023] FCA 951
Decision Date

CaseChat Overview and Summary

In the matter of BDXN v Minister for Home Affairs, the applicant sought an extension of time to apply for judicial review of a decision made under section 501CA(4) of the Migration Act 1958 (Cth). The applicant, who had been convicted of two counts of manslaughter and had a substantial criminal record, had her visa cancelled under section 501(3A) of the Act. Despite making representations to the Minister for Home Affairs, the Minister decided not to revoke the visa cancellation decision. The applicant subsequently applied for judicial review, but her application was made 12 months after the statutory deadline. The court had to determine whether an extension of time was appropriate given the length of the delay, the reasons for the delay, and whether there were reasonable prospects of success on the merits of the application.

The legal issues before the court were whether the applicant had provided an adequate explanation for the delay in seeking judicial review and whether there were reasonable prospects of success on the merits of the application. The court considered the authority of Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, which held that the power to extend time under section 477A of the Act was discretionary and not merely facultative. The court had to be satisfied that an extension of time was necessary in the interests of the administration of justice. The court noted that the applicant’s delay of nearly 12 months was both inordinate and extraordinary, but acknowledged that a lengthy delay was not necessarily fatal. The applicant argued that the delay was not due to any disregard or lack of care on her part.

The court found that the applicant had not provided an adequate explanation for the delay. The court held that the applicant had not demonstrated any special circumstances that would justify the delay, and the reasons provided were insufficient to satisfy the court that an extension of time was necessary in the interests of the administration of justice. The court also found that there were no reasonable prospects of success on the merits of the application. The court held that the Minister’s decision not to revoke the visa cancellation decision was not irrational or legally unreasonable, and the applicant had not identified any errors in the Minister’s decision that would warrant judicial review.

The court dismissed the application for an extension of time and ordered the applicant to pay the respondent’s costs of the application. The court held that the applicant had not demonstrated any special circumstances that would justify the delay, and the reasons provided were insufficient to satisfy the court that an extension of time was necessary in the interests of the administration of justice. The court also found that there were no reasonable prospects of success on the merits of the application. The court held that the Minister’s decision not to revoke the visa cancellation decision was not irrational or legally unreasonable, and the applicant had not identified any errors in the Minister’s decision that would warrant judicial review.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant pay the respondent’s costs of the application.

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

Background

Background to the litigation

For the reasons that follow, an extension of time will not be granted. Background The applicant was convicted of two counts of manslaughter and sentenced to nine years’ imprisonment on each count, the terms to be served concurrently. The applicant was also convicted of 40 summary offences which were taken into account in the applicant’s sentences for the manslaughter convictions. On 31 January 2020, the applicant’s visa was cancelled by a delegate of the Minister under s 501(3A) of the Act because she did not pass the character test on the basis of having a substantial criminal record and was serving a full-time sentence of imprisonment. On 24 February 2020, the applicant made written representations to the Minister seeking revocation of the s 501(3A) decision. On 26 October 2020, the Minister decided not to revoke the cancellation decision under s 501CA(4) of the Act. The Minister provided reasons for his decision. The Minister stated in his reasons that he was not satisfied the applicant passed the character test. The applicant does not challenge this finding. The Minister then considered whether he was satisfied there was another reason why the cancellation decision should be revoked. In doing so, the Minister considered the representations and documents the applicant had submitted. The Minister concluded that it was in the best interests of the applicant’s minor children, grandchild and second cousin for the original decision to be revoked. The Minister considered the expectations of the Australian community, concluding that the Australian community would expect that the applicant should not hold a visa. The Minister took into account the impacts of the applicant’s removal on her partner and immediate and extended family members. The Minister took into account the impacts upon the applicant of removal to her country of origin. The Minister noted, relevantly, that the applicant claimed to fear for her safety if removed from Australia, as she was required to give evidence at a murder trial. She claimed that her fear was heightened as the media had portrayed her as a “ground witness”, and she was “fearing from his family” the possibility of retribution if removed to her home country. The Minister concluded that without further substantiation of the claims, he was unable to make any finding about the nature and seriousness of the harm or the likelihood of it eventuating. The Minister considered the need for protection of the Australian community. The Minister acknowledged the sentencing judge’s findings that the applicant was not involved in the initial detention, the physical assaults and other physical acts that lead to the deaths of the victims. Her involvement was providing certain assistance to others who carried out the killings. The Minister noted that the sentencing judge referred to the applicant’s “lengthy criminal history”, which largely consisted of drug and property offending. The sentencing judge considered it to be significant that the applicant had no previous offences involving violence.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 501CA(4) of the Act provides, relevantly:501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)(4) The Minister may revoke the original decision if:(a)the person makes representations in accordance with the invitation; and(b) the Minister is satisfied:(i)that the person passes the character test (as defined by section 501); or (ii)that there is another reason why the original decision should be revoked. Section 476A provides, relevantly:476A Limited jurisdiction of the Federal Court(1)Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:…(c)the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; … Section 477A provides: 477A Time limits on applications to the Federal Court(1)An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.(2)The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:(a)an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and(b)the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.… The grounds of review The applicant’s Further Amended Originating Application contains the following grounds: 1.The decision of the Respondent made on 20 October 2020 was irrational and legally unreasonable in that it:a.found a risk of repetition of violent offending when such conduct had not occurred previously;b.made conclusion contrary to the findings on which they were based (the findings at paragraphs 39 and 72 of the Decision being contradicted by the findings at paragraphs 90, 91, 94 and 98, such that the salient conclusions at paragraphs 144 and 150 as to the “ongoing risk” of further offending involving violence cannot be sustained),in circumstances where the Applicant’s conviction for manslaughter was found to be (as was the case) not related to actual or threatened violence by the Applicant. 2.Further, or in the alternative, the decision of the Respondent made on 20 October 2020 was irrational and legally unreasonable in that the Respondent failed to make an obvious inquiry about a critical fact, namely the nature of the Respondent’s cooperation with authorities in connection with her manslaughter conviction, the existence of which fact was:a.easily ascertained; b.centrally relevant to the decision to be made by the Respondent. (Errors in the original.) The submissions

Ratio Decidendi

Legal Principle Established

I will discuss the parties’ submissions in more detail in the course of these reasons. Consideration The power of the Federal Court to extend time under s 477A of the Act was considered in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 (Katoa). The majority held, relevantly:10The “may” in the chapeau to s 477A(2) confers an authority to exercise the jurisdiction conferred under s 476A(1)(b) or s 476A(1)(c) of the Act, and is not merely facultative in nature. The power is discretionary in the sense that it involves an evaluative judgment as to a state of satisfaction.…12On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court’s satisfaction that an order extending time “is necessary in the interests of the administration of justice”. Other than the “interests of the administration of justice”, there are no mandatory relevant considerations, whether express or to be implied from the “subject-matter, scope and purpose” of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.(Footnotes omitted.) I will consider the factors relevant to the exercise of the discretion.Length of delay Section 477A(1) of the Act prescribes that an application to seek relief in relation to a migration decision must be made to the Court within 35 days of the migration decision. The date of the migration decision is the date of the written notice of the decision: s 477(3)(d). The written notice was dated 2 November 2020. The applicant had until 7 December 2020 to seek judicial review. The applicant submits that the delay should be considered to have ended in June 2021 when the applicant started preparing her documents. I do not accept this submission. The application for an extension of time was filed on 19 November 2021, a delay of nearly 12 months. In NRFX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 21, a delay of 82 days was described at [26] as lengthy. I accept the Minister’s submission that the delay of nearly 12 months in the context of the 35-day time limitation is, “both inordinate and extraordinary”. However, as the applicant submits, even a lengthy delay is not necessarily fatal. Explanation for delay The applicant submits that the delay was not due to any disregard or lack of care on her part.