Broadbent v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Broadbent v Minister for Home Affairs [2021] FCAFC 116

Appeal from: Broadbent v Minister for Home Affairs [2020] FCA 1626
File number: VID 5 of 2021
Judgment of: NICHOLAS, WIGNEY AND ANDERSON JJ
Date of judgment: 29 June 2021
Catchwords:

MIGRATION – where delegate of Minister cancelled applicant’s visa under s 501(3A) of Migration Act 1958 (Cth) (Act) – where Minister decided not to revoke cancellation – whether Minister lacked power under s 501CA of the Act to decide to not revoke the cancellation because decision to cancel visa made by delegate – Minister did not lack power under s 501CA of the Act

MIGRATION – whether Minister failed to properly consider whether applicant may be a citizen of Zambia and may therefore be returned to Zambia if visa cancellation decision not revoked – Minister not required to consider whether applicant was a citizen of Zambia

MIGRATION – whether in circumstances where applicant was represented and where applicant claimed to have been prevented from participating in hearing by video link Minister contravened s 256 of the Act – no contravention of s 256 of the Act

MIGRATION – where applicant required leave to file a notice of appeal out of time – leave refused – application dismissed

Legislation:

Acts Interpretation Act 1901 (Cth) ss 19(1), 34AB(1)(c)

Migration Act 1958 (Cth) ss 256, 496, 501, 501A, 501B, 501BA, 501C, 501CA

Federal Court Rules 2011 (Cth) r 36.03

Cases cited:

AXT19 v Minister for Home Affairs [2020] FCAFC 32

Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68

DOB18 v Minister for Home Affairs [2019] FCAFC 63

HWLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1039

KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108

Marzano v Minister for Immigration and Border Protection [2016] FCA 1180

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66

McCulloch v Minister for Home Affairs [2019] FCA 54

Minister for Home Affairs v Brown [2020] FCAFC 21

Minister for Home Affairs v CSH18 [2019] FCAFC 80

Minister for Immigration and Multicultural and Indigenous Affairs v Watson [2005] FCAFC 181

Re Patterson; Ex parte Taylor (2001) 207 CLR 391
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 75
Date of hearing: 14 May 2021
Counsel for the Applicant: Matthew Albert and Julie Zhou
Solicitor for the Applicant: Mayek Legal
Counsel for the Respondent: Rachel Francois
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 5 of 2021
BETWEEN:

FRANCIS BROADBENT

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:

NICHOLAS, WIGNEY AND ANDERSON JJ

DATE OF ORDER:

29 JUNE 2021

THE COURT ORDERS THAT:

1.The applicant’s application for an extension of time to file a notice of appeal dated 3 January 2021 is dismissed.

2.The applicant pay the respondent’s cost of the application as taxed or agreed.

Note:   Entry of orders is dealt with in Rule…

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Details
Case
[2021] FCAFC 116
Decision Date

CaseChat Overview and Summary

The applicant, Mr Broadbent, sought an extension of time to file a notice of appeal against a decision of the Minister for Home Affairs, which did not revoke a decision to cancel his visa. Mr Broadbent argued that the Minister lacked power to make the decision, failed to properly consider his possible Zambian citizenship, contravened a right to participate in the hearing, and other errors. The primary judge dismissed the application for an extension of time and the appeal. The applicant's visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth). Mr Broadbent made representations to the Minister, who decided not to revoke the cancellation decision. The primary judge found that the Minister did have power under s 501CA of the Act to decide not to revoke the cancellation because it was made by a delegate. The primary judge also found that the Minister was not required to consider Mr Broadbent’s possible Zambian citizenship as there was no evidence or claim before the Minister that he was a citizen of Zambia. The primary judge found no contravention of s 256 of the Act as the applicant was represented and there was no evidence that he was prevented from participating in the hearing by video link.

The primary judge dismissed the application for an extension of time and the appeal. The primary judge found that Mr Broadbent’s notice of appeal was not filed within the required time period and no satisfactory explanation was provided for the late filing. The primary judge noted that the circumstances of the case did not justify an extension of time. The primary judge also found that the appeal had no reasonable prospect of success as the Minister’s decision was lawful and reasonable. The primary judge ordered that Mr Broadbent pay the Minister’s costs of the application.

Orders

Orders of the court

1. The applicant’s application for an extension of time to file a notice of appeal dated 3 January 2021 is dismissed.

2. The applicant pay the respondent’s cost of the application as taxed or agreed.

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

Background

Background to the litigation

Mr Broadbent requires an extension of time in which to appeal. Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth), a notice of appeal should have been filed by 10 December 2020. Instead, Mr Broadbent filed his notice of appeal on 11 December 2020. The notice of appeal was not accepted by the Registry because it was not filed with an extension of time application. That extension of time application was filed on 3 January 2021. The parties agreed that it was appropriate that the Court hear the application for an extension of time together with full argument on the proposed appeal.BACKGROUND The primary judge at PJ [8]-[18] conveniently summarised the background facts as follows:8The following summary of the facts is based on the documents in the Court Book filed on 1 September 2020.9[Mr Broadbent] was born to British national parents in North Rhodesia (now Zambia) in May 1958. Together with his family, [Mr Broadbent] left North Rhodesia around 1964 and travelled to England, where the family lived for approximately one year before migrating to Australia. He arrived in Australia on 5 October 1965, aged seven, with his parents and siblings, and has not travelled out of Australia since that date. He is now aged 62.10[Mr Broadbent] has two Australian children; a son, born in May 1993, and a daughter, born in May 2000.11On 1 September 1994, [Mr Broadbent] was granted a Class BF Transitional (Permanent) visa. This visa was cancelled and reinstated twice, in 1999 and 2007. On 19 September 2008, the second cancellation decision was affected by an amendment to the [Act] which resulted in [Mr Broadbent] becoming an unlawful non-citizen. On 5 May 2009, the Minister granted [Mr Broadbent] the Visa the subject of these proceedings under s 195A of the [Act] to enable him to continue as the full-time carer for his father.12There is no dispute that [Mr Broadbent]’s circumstances fell within the criteria for mandatory cancellation set out in s 501(3A). [Mr Broadbent]’s criminal record commenced in 1970 when he was a minor. The record includes:•Most recently, common assault, resulting in an intensive correction order for 7 months, dealt with by the Local Court in May 2019;•Three counts of take & drive conveyance without consent of owner, not give particulars to other driver, negligent driving, use class A vehicle with unauthorised number plate affixed, licence expired less than 2 years before – prior offence, drive conveyance taken without consent of owner, and three failures to appear in accordance with bail acknowledgment, dealt with by the Local Court on 13 August 2018 and resulting in 14 months imprisonment;•Common assault, dealt with in the District Court in January 2012;•Supply prohibited drug on an ongoing basis, sentenced to four years imprisonment, and supply prohibited drugs on an ongoing basis, sentenced to six years imprisonment with a non-parole period of four years and six months, in the District Court in June 2004;•Robbery with wounding, sentenced to a minimum term of imprisonment of six years, possession of a shortened firearm, sentenced to a fixed term of four years, malicious wounding, sentenced to a fixed term of four years, and assault occasioning actual bodily harm, sentenced to a fixed term of three years, dealt with by the District Court in April 1994. These sentences were upheld on appeal;•Robbery with wounding, sentenced to 12 years imprisonment, robbery being armed, sentenced to 10 years imprisonment (concurrent), two counts of possession of a shortened firearm, each count sentenced to five years imprisonment to be served concurrently, two counts of supplying a prohibited drug, each count sentenced to five years imprisonment to be served concurrently, dealt with by the District Court in August 1988;•Further offences spanning back to 1970 including offences dealt with by the Children’s Court, including stealing, drug and driving related offences.13On 24 January 2019, [Mr Broadbent] was informed by the Department that his visa had been cancelled under s 501(3A) of the [Act]. He was also informed of his opportunity to make representations to the Minister about revoking the decision to cancel his visa.14On 12 February 2019, the Department received the representations made by [Mr Broadbent] in response to the visa cancellation. The Department received further information from [Mr Broadbent] on 2 May 2019, 9 August 2019 and 10 August 2019.15On 28 June 2019, the Department informed [Mr Broadbent] of further information it received which may be taken into consideration by the Minister, consisting of [Mr Broadbent]’s National Criminal History Check released 19 June 2019, and sentencing remarks made by the Local Court of New South Wales on 14 May 2019 and 13 August 2018, and by the District Court of New South Wales on 9 June 2004, a notice of intention to consider a visa cancellation, a written acknowledgement and written submission relating to a 2007 visa decision, and a notice of decision not to cancel [Mr Broadbent]’s visa from 2001.16On 12 September 2019 the Department sought clarification as to whether a person included in a 2007 form, but not the submissions accompanying the current revocation requests, was [Mr Broadbent]’s son. [Mr Broadbent] responded affirmatively on 14 September 2019.17[Mr Broadbent] was notified of the Decision by letter dated 27 February 2020, which was accompanied by the Minister’s Statement of Reasons for Decision, dated 25 February 2020 (Minister’s Reasons).18Under the heading “Conclusion”, the reasons for the Decision were encapsulated at [71] – [80]:71I have undertaken: (1) an assessment of whether the person has made representations in accordance with the invitation for the purposes of s 501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character test (as defined by s 501) for the purposes of s 501CA(4)(b)(i); and (3) an assessment of whether I am satisfied that there is another reason why the original decision should be revoked for the purposes of s 501CA(4)(b)(ii).72I concluded Mr BROADBENT has made representations in accordance with the invitation.73I am not satisfied that Mr BROADBENT passes the character test (as defined by s 501).74In considering, in light of Mr BROADBENT’s representations, whether I was satisfied that there is another reason why the original decision should be revoked, I have considered the length of time Mr BROADBENT has made a positive contribution to the Australian community in the 54 years that he has lived in Australia and/or the consequences of non-revocation of the original decision for his other family members, and the extent of impediments that Mr BROADBENT would face if he were removed to the United Kingdom.75On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the [very] serious nature of the crimes committed by Mr BROADBENT some of which are of a violent nature, and involved a vulnerable member of the community, that being a minor person.76Further, I find that the Australian community could be exposed to harm should Mr BROADBENT reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr BROADBENT.77I am cognisant that where harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr BROADBENT, than I otherwise would, because he has lived in Australia from a very young age.78In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr BROADBENT represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any other considerations as described above. These include his lengthy residence, his familial and community ties to Australia and the hardship Mr BROADBENT, his family and social networks will endure in the event the original decision is not revoked.79I am also mindful that Australia has a low tolerance of criminal conduct by persons holding a limited stay visa, reflecting that there should be no expectation that such people remain in Australia. I note that most recent visa held by Mr BROADBENT was a Class WR Subclass 070 Bridging R (Removal Pending) visa.80Having given full consideration to all of these matters, I am not satisfied, for the purposes of s 501CA(4)(b)(ii), that there is another reason why the original decision under s 501(3A) to cancel Mr BROADBENT’s visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr BROADBENT’s Class WR Subclass 070 Bridging R (Removal Pending) visa remains cancelled.PROPOSED GROUNDS OF APPEAL

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Counsel for the Minister submitted that, on the evidence, Mr Broadbent never claimed to be a citizen of Zambia. She submitted that Mr Broadbent, in his representations to the Minister, stated he was born in the now non-existent country of North Rhodesia. Mr Broadbent represented to the Minister that he “was eligible for citizenship by the United Kingdom”. It was submitted that there was no evidence before the Minister that Mr Broadbent was a citizen of Zambia and no representation was ever put to the Minister that, as a matter of law, the fact of Mr Broadbent’s birth in North Rhodesia accorded him Zambian citizenship.Consideration of proposed Ground 2 The primary judge set out at PJ [47]-[49] the significantly limited material which Mr Broadbent put before the Minister as to Mr Broadbent having been born in North Rhodesia. The primary judge stated at [47]-[49]: 47 In [Mr Broadbent’s] representations of 27 June 2007, made in response to the Notice of Intention to Consider Cancellation of a Visa under s 501(2) dated 19 June 2007, [Mr Broadbent] stated, “We were born in British Protectorate Nth Rhodesia and left there before it became Zambia and independent in 1964. We migrated here from England in 1965 via Western Australia”.48… [I]n [Mr Broadbent’s] Request for Revocation of a Mandatory Visa Cancellation under s 501(3A) dated 10 February 2019, the [Mr Broadbent] states that his country of citizenship is Britain.49[Mr Broadbent] completed a “Personal Circumstances Form” on 10 February 2019. In it, [Mr Broadbent] states that his place of birth is “North Rhodesia/British Protectorate” and his current citizenship is “British”. He indicates that the citizenship of both parents at birth was British. That was the totality of the evidence that Mr Broadbent put before the Minister as to any connection between Mr Broadbent and North Rhodesia (now Zambia). At PJ [52]-[56], the primary judge set out the other (limited) material which departmental officials put before the Minister as to Mr Broadbent’s connection to Zambia. The primary judge stated at [57] that, “[d]espite the various references to [Mr Broadbent]’s place of birth, there was no representation made that the applicant is, or even might be, a citizen of Zambia”. Having reviewed the material in the Appeal Book for this appeal, that position is correct. In AXT19 v Minister for Home Affairs [2020] FCAFC 32, Flick, Griffiths and Moshinsky JJ stated at [56]: … The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the [decision-maker] to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the [decision-maker] to consider the claim. The primary judge was correct to reject this proposed ground of review. There was simply no claim made by Mr Broadbent to the Minister as to any relevant connection between him and Zambia. As the primary judge’s reasons at [45]-[69] make plain, the representations made to the Minister were unequivocal in their assertion that Mr Broadbent had British citizenship on the basis of his birth in North Rhodesia, prior to its independence. There was no representation made by Mr Broadbent that he is or might be a citizen of Zambia. Nowhere in the representations to the Minister was there a clearly articulated claim by Mr Broadbent that his visa cancellation should be revoked because his citizenship status is unclear: PJ [57]. In the proceeding before the primary judge, there was “no attempt to prove the law of Zambia, which must be proved as a fact”: PJ [67]. The primary judge correctly stated at PJ [69] that there was no evidence before the Minister that Mr Broadbent was a citizen of Zambia and no representation was ever put to the Minister that, as a matter of law, the fact of the applicant’s birth in North Rhodesia prior to that country’s independence, accorded him Zambian citizenship or raised the prospect that he might be returned to Zambia. In light of these matters, and the very limited material relating to Zambia before the Minister, the Minister was not required to consider matters related to any connection between Mr Broadbent and Zambia.