FEDERAL COURT OF AUSTRALIA
BRO18 v Minister for Home Affairs [2023] FCA 1193
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Details
- Case
- [2023] FCA 1193
- Decision Date
CaseChat Overview and Summary
The case of BRO18 v Minister for Home Affairs involved a Burundi citizen born in 1982 who arrived in Australia in 2002 and was granted a visa in 2007. The applicant had a history of criminal convictions, including serious offences against his former partner. In 2017, the Minister for Home Affairs cancelled the applicant's visa on character grounds, citing the applicant's substantial criminal record. The applicant sought an extension of time to lodge an application for judicial review of the Minister's decision, which was initially refused. This appeal followed the High Court's decision in Minister for Immigration and Border Protection v Makasa, which affected the authority on which the initial extension of time decision was made.
The primary legal issue before the court was whether the applicant's substantial delay in bringing the application for review warranted an extension of time under s 477A of the Migration Act 1958 (Cth). The court had to consider the length of the delay, the adequacy of the explanation for the delay, any prejudice arising from the grant of an extension, and the merits of the substantive application. The applicant argued that the High Court's decision in Makasa constituted a fundamental change in circumstances that justified a second extension of time application.
The court found that the applicant's delay was not inordinate and that the fundamental change in circumstances brought about by the Makasa decision justified granting the extension. The court acknowledged that there was no bar to bringing a second extension of time application and that the applicant's reasons for the delay were reasonable given the legal developments. The court concluded that it was necessary in the interests of the administration of justice to grant the extension of time.
The court allowed the applicant's extension of time application and found that the Minister's error in finding that the applicant had failed to pass the character test amounted to jurisdictional error. The court issued a writ of certiorari quashing the Minister's decision to cancel the applicant's visa and a writ of mandamus requiring the Minister to reconsider the decision according to law. The Minister was also ordered to pay the applicant's costs.
The primary legal issue before the court was whether the applicant's substantial delay in bringing the application for review warranted an extension of time under s 477A of the Migration Act 1958 (Cth). The court had to consider the length of the delay, the adequacy of the explanation for the delay, any prejudice arising from the grant of an extension, and the merits of the substantive application. The applicant argued that the High Court's decision in Makasa constituted a fundamental change in circumstances that justified a second extension of time application.
The court found that the applicant's delay was not inordinate and that the fundamental change in circumstances brought about by the Makasa decision justified granting the extension. The court acknowledged that there was no bar to bringing a second extension of time application and that the applicant's reasons for the delay were reasonable given the legal developments. The court concluded that it was necessary in the interests of the administration of justice to grant the extension of time.
The court allowed the applicant's extension of time application and found that the Minister's error in finding that the applicant had failed to pass the character test amounted to jurisdictional error. The court issued a writ of certiorari quashing the Minister's decision to cancel the applicant's visa and a writ of mandamus requiring the Minister to reconsider the decision according to law. The Minister was also ordered to pay the applicant's costs.
Orders
Orders of the court
1. Leave to extend time to rely on the originating application dated 4 July 2022 be granted.
2. The application be allowed.
3. A writ of certiorari be issued quashing the respondent’s decision made under s 501(2) of the Migration Act 1958 (Cth) on 10 August 2017 to cancel the applicant’s visa (the decision).
4. A writ of mandamus be issued requiring the respondent to reconsider the decision according to law.
5. The respondent pay the applicant’s costs as agreed or taxed pursuant to r 40.12 of the Federal Court Rules 2011 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the following reasons, I grant the applicant’s extension of time application and I find that the Minister’s error in finding that the applicant had failed to pass the character test for the purposes of s 501(2) amounted to jurisdictional error. Background The applicant is a citizen of Burundi who was born in 1982. He arrived in Australia on 13 February 2002 and was granted the visa on 5 January 2007. The applicant has a lengthy criminal history. Relevantly, in December 2008 the applicant was convicted in the District Court of Western Australia of aggravated burglary and commit offence in dwelling and breach of violence restraining order in circumstances of aggravation. He was sentenced to 12 months imprisonment for the burglary conviction and six months for the breach of the restraining order to be served concurrently. On the same day the applicant was convicted in the Magistrates Court of Western Australia of the offence of aggravated assault occasioning bodily harm, and sentenced to six months’ imprisonment (2008 convictions). On 2 April 2009, the applicant was notified of the Minister’s intention to consider the cancellation of his visa pursuant to s 501(2) of the Act. The letter notifying the applicant of this intention informed him that the information which could be relied upon was a transcript of District Court proceedings and an extract of Magistrates Court proceedings, both dated 18 December 2008. The transcript and extract included information relating to the 2008 convictions. Accordingly, it may be inferred that the decision was made on that basis. The parties agree that this decision was based on the 2008 convictions. On 31 July 2009, a delegate of the Minister determined not to cancel the applicant’s visa. The applicant was then convicted of several other offences between June 2009 and January 2017, which resulted in significant fines, community-based orders and suspended terms of imprisonment. On 6 March 2015, the applicant was again notified of the Minister’s intention to consider cancelling his visa. On 10 August 2017, the Minister (acting personally) cancelled the applicant’s visa on character grounds pursuant to s 501(2) of the Act. The Minister’s 2017 Decision The Minister determined that the applicant did not pass the character test, specifically s 501(6)(a) (namely, the applicant has a substantial criminal record as defined in s 501(7)(c) of the Act): MD[5]. In finding that the applicant had not satisfied him that he passed the character test, the Minister relied upon the 2008 conviction for “aggravated burglary and commit offence in dwelling”. As referred to above, this offence had previously been relied upon by the Minister when he was considering whether to cancel the applicant’s visa in 2009. The Minister referred explicitly to the 2008 convictions at MD[11]–[13] and thereafter to the applicant’s other criminal convictions which did not involve custodial sentences. It is worthwhile extracting the Minister’s Decision at this point (at MD[11]–[15]): 11. On 18 December 2008, [the applicant] was convicted in the District Court of Western Australia at Perth of aggravated burglary and commit offence in dwelling, and breach of violence restraining order in circumstances of aggravation and was sentenced to twelve and six months imprisonment respectively. The offences occurred on 13 September 2008. [The applicant] assaulted his former partner, who was nine months pregnant at the time of the assault. He was in her residence without her permission and was subject to a violence restraining order at the time he assaulted her.12. I am mindful that in 2006, [the applicant] assaulted the same partner by kicking her in the abdomen when she was six months pregnant.13. On 18 December 2008 [the applicant] was convicted in the Magistrates Court of Western Australia at Perth of aggravated assault occasioning actual bodily harm and sentenced to a term of imprisonment of six months. The Magistrate did not provide a description of [the applicant’s] offending however he described the offence as a ‘serious assault’.14. An Immigration report dated 16 March 2009 describes the circumstances of this offence; after a verbal altercation with his partner, [the applicant] grabbed her around the neck with both hands, using force to strangle her. The victim passed out on the laundry floor where [the applicant] repeatedly punched her in the face. During the assault the victim was in and out of consciousness and [the applicant] made comments to her that if she went to police, their baby would be taken into care like their two other children.15. I note that [the applicant] also has a lengthy record of criminal convictions with non-custodial sentences for violent offences, drug offences, dishonesty offences, stealing, burglary, breaches of judicial orders, driving offences and drink driving offences between 8 June 2006 and 19 January 2017. I note comments by the Magistrate on 31 October 2014, that [the applicant] ‘...is starting to develop a serious criminal record’. (Emphasis in original.)
Evidence
Evidence Before The Court
The applicant seeks a writ of certiorari that the Decision be quashed, an injunction restraining the Minister and her officers, servants and agents from taking action upon, or giving effect to, the Decision, and costs. The evidence In support of his application, the applicant relied upon the following evidence: (a)an affidavit of Alison Mary Battisson (the applicant’s solicitor) affirmed on 4 July 2022;(b)an affidavit of Shira Nina Sebban (a migration agent working pro bono for the applicant’s solicitors) affirmed on 20 June 2023; and (c)an affidavit of the applicant affirmed on 12 July 2023. The affidavits were admitted into evidence without objection. The extension of time application Pursuant to s 477A of the Act, an application to this Court for a remedy to be granted in the Court’s original jurisdiction in relation to a migration decision must be made within 35 days of the date of the migration decision, unless the Court orders otherwise. Section 477A is extracted as follows: 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.(3) In this section:date of the migration decision has the meaning given by subsection 477(3). (4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection 477(3).(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision. When considering whether to grant an extension of time, relevant considerations include the length of the delay, the adequacy of the explanation for the delay, any prejudice that arises from the grant of an extension and the merits of the proposed substantive application: see, eg, SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]. Here, the applicant is bringing a second challenge to the Minister’s 2017 Decision but for reasons which are different to those previously advanced because they arise from a decision of the High Court, in Makasa, handed down in February 2021. I accept that there is no bar to bringing a second extension of time application: Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139 at [72]–[73]; Re Golding [2020] HCA 38; 94 ALJR 1014 at [6]; Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 109 at [4]. In this case, the applicant contends it is particularly important that there be no such bar given the “fundamental change in circumstances” brought about by the High Court’s judgment Makasa. I accept this characterisation of the circumstances.
Decision
Reasons for decision
On 10 August 2017, the Minister (acting personally) cancelled the applicant’s visa on character grounds pursuant to s 501(2) of the Act. The Minister’s 2017 Decision The Minister determined that the applicant did not pass the character test, specifically s 501(6)(a) (namely, the applicant has a substantial criminal record as defined in s 501(7)(c) of the Act): MD[5]. In finding that the applicant had not satisfied him that he passed the character test, the Minister relied upon the 2008 conviction for “aggravated burglary and commit offence in dwelling”. As referred to above, this offence had previously been relied upon by the Minister when he was considering whether to cancel the applicant’s visa in 2009. The Minister referred explicitly to the 2008 convictions at MD[11]–[13] and thereafter to the applicant’s other criminal convictions which did not involve custodial sentences. It is worthwhile extracting the Minister’s Decision at this point (at MD[11]–[15]): 11. On 18 December 2008, [the applicant] was convicted in the District Court of Western Australia at Perth of aggravated burglary and commit offence in dwelling, and breach of violence restraining order in circumstances of aggravation and was sentenced to twelve and six months imprisonment respectively. The offences occurred on 13 September 2008. [The applicant] assaulted his former partner, who was nine months pregnant at the time of the assault. He was in her residence without her permission and was subject to a violence restraining order at the time he assaulted her.12. I am mindful that in 2006, [the applicant] assaulted the same partner by kicking her in the abdomen when she was six months pregnant.13. On 18 December 2008 [the applicant] was convicted in the Magistrates Court of Western Australia at Perth of aggravated assault occasioning actual bodily harm and sentenced to a term of imprisonment of six months. The Magistrate did not provide a description of [the applicant’s] offending however he described the offence as a ‘serious assault’.14. An Immigration report dated 16 March 2009 describes the circumstances of this offence; after a verbal altercation with his partner, [the applicant] grabbed her around the neck with both hands, using force to strangle her. The victim passed out on the laundry floor where [the applicant] repeatedly punched her in the face. During the assault the victim was in and out of consciousness and [the applicant] made comments to her that if she went to police, their baby would be taken into care like their two other children.15. I note that [the applicant] also has a lengthy record of criminal convictions with non-custodial sentences for violent offences, drug offences, dishonesty offences, stealing, burglary, breaches of judicial orders, driving offences and drink driving offences between 8 June 2006 and 19 January 2017. I note comments by the Magistrate on 31 October 2014, that [the applicant] ‘...is starting to develop a serious criminal record’. (Emphasis in original.)
Ratio Decidendi
Legal Principle Established
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