Blissett v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 284
•18 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Blissett v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 284
File number(s): SYG 1564 of 2021 Judgment of: JUDGE DRIVER Date of judgment: 18 November 2021 Catchwords: MIGRATION – application to review decision to cancel the applicant’s visa and delay in removing the applicant from Australia – no jurisdictional error Legislation: Crimes Act 1900 (NSW) s 125
Migration Act 1958 (Cth) ss 198, 474, 476, 500, 501
Supreme Court Act 1970 (NSW) s 29
Cases cited: Blissett v Director of Public Prosecutions (NSW) [2021] NSWCA 253
Ketjan v Assistant Minister for Immigration and Border Protection [2019] FCAFC 207
Snedden v Minister for Justice (2014) 230 FCR 82
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of hearing: 18 November 2021 Place: Sydney Applicant in person by telephone Counsel for the Respondent: Mr G Johnson Solicitors for the Respondent: Sparke Helmore ORDERS
SYG 1564 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DIONE BLISSETT
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
18 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application lodged on 12 August 2021 is dismissed.
2.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,467.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
I have before me an application seeking judicial review under s 476 of the Migration Act 1958 (Cth) (Migration Act) of a decision of a delegate of the Minister (delegate) to cancel the applicant’s (Mr Blissett) special category temporary class TY visa under s 501(3)(a) of the Migration Act and also in respect of a future decision or other action relating to his return to his homeland of New Zealand.
Background facts are conveniently set out in Minister’s submissions filed on 5 November 2021, which I adopt.
Mr Blissett is a citizen of New Zealand, born in 1978. On 30 November 2020 the delegate cancelled Mr Blissett’s visa because the delegate was satisfied that Mr Blissett did not pass the character test because of the operation of s 501(6)(a)[1] of the Migration Act and was satisfied he was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.[2] The circumstances in which his visa came to be cancelled were that on 24 September 2019 Mr Blissett was convicted in the Penrith Local Court and sentenced to imprisonment for 18 months, having been found guilty of five counts of larceny as a bailee contrary to s 125 of the Crimes Act 1900 (NSW). Mr Blissett appealed to the District Court of New South Wales against the severity of the sentence. On 20 October 2020 the appeal was dismissed.[3]
[1] section 501(3A)(a)
[2] section 501(3A)(b)
[3] Court Book (CB) 115
Mr Blissett was notified of the cancellation of his visa as required under s 501CA(3).[4] On 16 December 2020 he made representations to the Minister to revoke the cancellation of his visa under s 501CA(4).[5] The Minister is yet to decide whether or not to revoke the cancellation of Mr Blissett’s visa.
[4] CB 3
[5] CB 41
On 1 June 2021 Mr Blissett advised the Minister’s Department’s National Character and Cancellation Centre (NCCC) that he had filed a summons under s 29 of the Supreme Court Act 1970 (NSW) in the NSW Court of Appeal seeking review of the Local and District Court decisions. He advised that the “execution of conviction and sentence” were stayed until the final determination of the matter. He requested that the Minister’s Department re-issue his visa while the appeal proceedings were on foot.[6] The NCCC responded the same day to advise that his application for revocation was being progressed, but that it was not possible to provide a time frame as to when it would be finalised.[7]
[6] CB 105
[7] CB 107
THE CURRENT PROCEEDINGS
The judicial review application on which Mr Blissett relies was lodged on 12 August 2021. Mr Blissett seeks, among other relief, an order setting aside the Minister’s decision to cancel the visa, although that has not been pursued. He advances two grounds in support of the relief sought in the application:[8]
[8] original numbering preserved
Ground 1.
2.The Department's delegated decision-maker, may be in Jurisdiction error, by not reinstating the Applicant's visa according to Law, upon the filing in the New South Wales, Supreme Court of Appeal, a Application under section 69 of the Supreme Court Act 1970 (NSW)
3.The Applicant made a formal request in late May and early June 2021 for the reinstatement of the visa pending the proceeding on foot in the Supreme Court of Appeal, that request was refused by the Department and its authorised agents.
Ground 2.
4.Following the Department's refusal to return the Applicant's visa pending the Judicial proceedings on foot in The Supreme Court of Appeal, the Applicant made a formal request to leave on the next flight from Sydney to Auckland, and wait in Auckland while the visa was under review by the Department. The Department has not acted reasonably and "as soon as practicable" in facilitating the Applicant's immediate flight.
5.Due to the COVID 19 situation and accordingly the restrictions leading to the closing of the travel bubble with New Zealand on or about 01 August 2021. The Applicant has been instructed by agents of the Department and the Australian Border Force, to the effect that there is no known or expected future dates for flights to New Zealand.
Conclusion
6.Section 474(2) is not offended by the present Application because the powers of the Department's delegated decision-maker(s) enabling the option to consider making a decision to commence to a mandatory cancellation of the Applicant's visa, are not live while the matters that are the subject of the mandatory cancellation, are on foot in the course of Judicial proceedings yet to be decided by the Supreme Court of Appeal.
7.The Department's refusal to return the Applicant's visa according to Law, and the inaction of the agency in facilitating the Applicant's intimidate flight upon being informed in writing by the Applicant at the commencement of June 2021, has and may continue to result in unlawful, unnecessary, unfair and indefinite detention.
(errors in original)
I have before me as evidence the court book filed on 28 September 2021, affidavits by Mr Blissett lodged with his originating application and a much more substantial affidavit containing, among other things, written submissions lodged on 27 October 2021. In addition to the court book the Minister relies on affidavits by Madeleine Grace Kelly made on 5 November 2021 and Farida Nisa made on the same date.
CONSIDERATION
It is apparent that Mr Blissett’s application faces difficulties. It is clear now, although it was not clear earlier, that Mr Blissett does not challenge the cancellation of his visa, but rather the failure to reinstate the visa, pending his efforts to deal with the relevant criminal conviction.
Mr Blissett believes that it was possible for his cancelled visa to be reinstated. Under the Migration Act it was certainly possible for the cancellation decision to be revoked and Mr Blissett has sought that. It does not appear to me, however, that there is any relevant process or decision for the reinstatement of a cancelled visa pending the outcome of a revocation application. That revocation process is ongoing and no decision has yet been made. When a decision is made it would, in my view, be open to Mr Blissett to seek a review of it if he finds it adverse to his interests.
The second part of the application relates to Mr Blissett’s alternative contention that if his substantive visa was not to be reinstated, he sought removal to New Zealand. This request was made under s 198 of the Migration Act. The request, having been made, it is common ground that the Minister came under a duty to remove Mr Blissett to New Zealand as soon as was reasonably practicable. In essence, Mr Blissett contends that that duty has not been complied with. Mr Blissett was on 2 November 2021 voluntarily removed to New Zealand but nevertheless pursues his application, as he is entitled to do.
The evidence filed on behalf of the Minister details the efforts made to effect Mr Blissett’s return, subject to difficulties and complications occasioned by the COVID-19 pandemic and the related disruptions to transport between Australia and New Zealand, and competition for places on the available transport. Mr Blissett believes that, notwithstanding those difficulties, his removal was not effected in accordance with the obligation arising following his request for removal.
That is a matter about which reasonable minds can differ but I am persuaded on the basis of the Minister’s evidence that his officers took reasonable steps to effect removal as soon as was reasonably practicable. The Minister’s submissions otherwise deal with the grounds of review in Mr Blissett’s application. I agree with and respectfully adopt those submissions.
First ground
In the first ground Mr Blissett states that in “late May and early June 2021” he made a formal request for the reinstatement of his visa pending the “proceeding on foot” in the New South Wales Court of Appeal. He states that this request was “refused” by the Minister’s Department and its authorised agents. This appears to be a reference to the correspondence that appears at CB 105-107.
It is common ground that the Court has jurisdiction to review the delegate’s decision.[9] The delegate’s decision is not a privative clause or purported privative clause decision that is expressly excluded from the Court’s original jurisdiction by s 476(2)(b)-(d). The delegate’s decision is not a “primary decision”, as defined.[10] However, Mr Blissett fails to establish any basis upon which it could be said that the delegate’s decision was affected by a jurisdictional error.
[9] section 476(1)
[10] see s 500(4A)(c) of the Migration Act
Mr Blissett’s argument appears to be that in light of subsequent legal challenges he instituted in the NSW Court of Appeal against his sentence imposed in the Local Court (and confirmed in the District Court on appeal), the delegate’s decision is liable to be set aside. Mr Blissett does not explain how this is so. In any event, the argument must be rejected.
The delegate’s power under s 501(3A) arose because of a state of satisfaction arrived at by the delegate at the time the decision was made on 20 November 2020.
The cancellation power in s 501(3A) is based upon the Minister’s (or delegate’s) satisfaction that the person does not pass the character test. The character test is defined in s 501(6), and relevantly, a person does not pass the character test if he or she has a “substantial criminal record”. A person has a substantial criminal record if he or she “has been sentenced to a term of imprisonment of 12 months or more”.[11]
[11] section 501(7)(c)
As the Full Federal Court stated of the s 501(3A) scheme in Ketjan v Assistant Minister for Immigration and Border Protection[12] at [43]:
Paragraph (a) is directed to the quality of the non-citizen’s character which, in this context, is determined objectively by reference to the non-citizen’s (past) criminal record. Paragraph (b), in contrast, is directed to a state of affairs at a particular point in time; namely (and broadly) whether the non-citizen is, at that time, in prison on a full-time basis for committing an Australian criminal offence. This makes sense when you have regard to the stated purposes behind the mandatory visa cancellation scheme. As explained in the relevant explanatory memorandum and second reading speech, which were relevantly extracted above at [13]-[14], the primary intention of the mandatory visa cancellation scheme was to ensure that the decision to cancel a non-citizen’s visa occurs before he or she is released from prison: see Falzon [v Minister for Immigration and Border Protection (2018) 262 CLR 33; [2018] HCA 2] at [49]-[50]. The result is that, should the non-citizen subsequently request revocation of the mandatory cancellation, that request would be pursued while the non-citizen is in prison or, if released from criminal custody, in immigration detention.
[12] [2019] FCAFC 207
At the time of the delegate’s decision (30 November 2020), it was a fact that Mr Blissett had a substantial criminal record as defined in s 501(7) of the Migration Act. The cancellation occurred following the unsuccessful severity appeal in the District Court. For that reason the Court does not in this matter need to consider the effect on the cancellation decision of whether the effect of the District Court appeal was to stay his conviction (as Mr Blissett appears to contend). Further, at the time of the delegate’s decision, it was a fact that Mr Blissett was in custody, having been admitted to Bathurst Correctional Centre on 20 October 2020.[13] He had been out on appeal bail pending the decision in the District Court,[14] but again, that is a matter of history irrelevant to the state of affairs that existed as at 30 November 2020 when the visa was cancelled.
[13] CB 29
[14] CB 115
Although it strictly does not matter one way or the other, I note that Mr Blissett’s application for an extension of time to file a summons in the NSW Court of Appeal was refused on 22 October 2021.[15]
[15]Blissett v Director of Public Prosecutions (NSW) [2021] NSWCA 253
For the above reasons, the delegate’s decision to cancel Mr Blissett’s visa is not affected by any jurisdictional error.
Second ground
In the second ground, Mr Blissett states that following the Minister’s Department’s refusal to reinstate his visa he made a formal request to leave on the next flight from Sydney to Auckland, and to wait in Auckland while his request for revocation was under consideration. He asserts that the Minister’s Department has not acted reasonably and “as soon as possible” in facilitating the applicant’s “immediate flight”. Mr Blissett adds in his application that the Minister’s Department’s actions, and inactions, have and “may continue to result in unlawful, unnecessary, unfair and indefinite detention”.
The Court has jurisdiction in respect of this ground. It would constitute a review of a decision by the Minister to refuse or fail to remove Mr Blissett from Australia pursuant to his request made under s 198(1) of the Migration Act.[16] It is accepted that on 2 June 2021 Mr Blissett requested to be removed from Australia.
[16] see s 474(3) of the Migration Act
However, having regard to the evidence before the Court,[17] it is not apparent that the Minister (or any delegate or officer of the Minister’s Department) has made any determination refusing to remove Mr Blissett as he has requested. Neither has there been an unreasonable failure to remove him. Rather, the evidence reveals that steps have been taken to remove Mr Blissett, but circumstances outside of the control of the Minister’s Department have prevented prompt removal. For instance, it is evident from Mr Blissett’s email dated 28 July 2021[18] that he was informed by the Minister’s Department that COVID-19 restrictions and flight availability problems had prevented removal at that stage. Further, Mr Blissett’s email dated 6 August 2021[19] indicated that he was told that “there were no commercial flights to New Zealand from Australia”, and “there have been no charter flights”. On 12 August 2021, the Minister’s Department advised Mr Blissett that the “travel bubble” between Australia and New Zealand had been paused, and that the Minister’s Department would “inform you once there is a confirmed flight schedule for you”.[20]
[17] see in particular the correspondence between Mr Blissett and the Minister’s Department annexed to Mr Blissett’s affidavit made on 16 August 2021
[18] at page 13
[19] page 14
[20] page 16
In short, the evidence reveals that neither the Minister, nor any officer of the Minister’s Department, has refused, or is refusing or unreasonably failing, to perform the statutory duty required under s 198(1). That duty requires removal “as soon as reasonably practicable”. In respect of that statutory expression, the Full Federal Court in Snedden v Minister for Justice[21] at [116] stated:
There are essentially three elements to the composite expression “as soon as is reasonably practicable”. First, the word “practicable” has the meaning of “capable of being carried out in action; feasible”: M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131; (2003) 131 FCR 146 (M38/2002) at [65]. It identifies that which is able to put into practice and which can be effected or accomplished: Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 (Al-Kateb) at [121]. Secondly, the qualification “reasonably” limits or qualifies what would otherwise be an absolute obligation: M38/2002 at [65]. It introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme: Al-Kateb at [121]. Thirdly, the phrase “as soon as” supplies a temporal element: Al-Kateb at [121]. It directs the decision-maker to make the determination without delay once it is reasonably practicable to do so: Santhirarajah[Santhirarajah v Attorney-General (Cth) [2012] FCA 940; (2012) 206 FCR 494] at [74]; Judgment at [24].
[21] (2014) 230 FCR 82
In circumstances where, since June 2021, the global pandemic has resulted in international border closures, and limitations on flights between countries (including Australia and New Zealand), it cannot be said that the Minister has failed in the duty imposed by s 198(1). Contrary to Mr Blissett’s contentions, the Minister’s Department undertook to secure a flight for Mr Blissett to return to New Zealand, and was able to secure his seat on a charter flight to New Zealand on 2 November 2021. As the only relief Mr Blissett would have been entitled to had he made out a breach of the duty under s 198(1) would be mandamus to compel performance of the duty, the fact of Mr Blissett’s successful removal to New Zealand renders this ground inutile. In any event, and for the reasons set out above, Mr Blissett has failed to make out any breach of the duty under s 198(1).
CONCLUSION
I conclude that Mr Blissett has not established that the decisions subject to his application for review were affected by any jurisdictional error.
I will order that the application be dismissed.
On the question of costs, the application having been dismissed, the Minister seeks an order for costs in accordance with Court scale as it applied at the time the judicial review application was filed. That application for costs is opposed by Mr Blissett, who generally leaves the matter to the Court’s discretion. I see no reason to depart from the principle that costs should follow the event. It was open to Mr Blissett, having been returned to New Zealand, to discontinue the proceedings but he has elected to pursue them to a final decision. That was, of course, his right, but as I have noted, costs should follow the event. The Court scale reflects a judgement of what a case of average complexity should be worth for the purposes of a costs order. I see no reason to depart from the scale.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,467.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 22 November 2021
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