Broadbent v Minister for Home Affairs
[2021] FCAFC 116
•29 June 2021
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 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
INTRODUCTION
This is an appeal from the decision of the Federal Court of Australia on 12 November 2020 in which the primary judge dismissed an application for judicial review of a decision of the Minister for Home Affairs (Minister) made on 25 February 2020 not to revoke the cancellation of Mr Francis Broadbent’s visa: see Broadbent v Minister for Home Affairs [2020] FCA 1626 (PJ).
Mr Broadbent’s visa had been granted by the exercise of the Minister’s personal power under s 195A of the Migration Act 1958 (Cth) (Act).
On 24 January 2019, a delegate of the Minister cancelled Mr Broadbent’s Class WR Subclass 070 Bridging R (Removal Pending) visa (visa) under s 501(3A) of the Act. Among other things, Mr Broadbent had been sentenced on 13 August 2018 to an aggregate term of 14 months’ imprisonment. It was not in dispute that Mr Broadbent did not pass the character test in s 501(3A)(i) of the Act.
On 25 February 2020, the Minister, pursuant to s 501CA(4) of the Act, decided not to revoke the cancellation of Mr Broadbent’s visa. Mr Broadbent applied for judicial review of that decision.
Mr Broadbent, by his amended originating application filed on 21 September 2020, relied upon two grounds of review before the primary judge. First, it was said that the Minister’s purported decision was invalid as the Minister lacked power under s 501CA of the Act to revoke the cancellation of Mr Broadbent’s visa. Second, it was said that the Minister erred by failing to consider, in the relevant legal sense, whether Mr Broadbent is a citizen of Zambia as compared with being “eligible for citizenship of the United Kingdom”.
The primary judge dismissed both of these grounds of review. It is from that decision that Mr Broadbent wishes to appeal.
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
Mr Broadbent relies upon the following three proposed grounds of appeal.
First, it is said that the primary judge erred by failing to accept that the Minister’s decision is invalid by reason that the Minister lacked power under s 501CA of the Act to revoke the cancellation of Mr Broadbent’s visa.
Second, it is said that the primary judge erred by failing to find that the Minister erred by failing to consider, in the relevant legal sense, evidence of significance to the question of whether to revoke the cancellation of Mr Broadbent’s visa, namely, that he is a citizen of Zambia as compared with being “eligible to citizenship of the United Kingdom”.
Third, it is said that the primary judge misconstrued s 256 of the Act.
Mr Broadbent’s notice of appeal seeks three orders. First, in respect of proposed Grounds 1 and 2, Mr Broadbent seeks an order that the decision of the Minister be quashed. Second, in respect of proposed Ground 2, Mr Broadband seeks a writ of mandamus directed to the Minister, requiring the Minister to determine the applicant’s application according to law. Third, in respect of proposed Ground 3, Mr Broadbent seeks a declaration that the Minister was in breach of his obligation under s 256 of the Act and/or an order that the Minister pay for a transcript of the hearing on 19 October 2020 to be provided to Mr Broadbent. The orders sought in respect of Ground 3 were extended in written submissions to also include “an opportunity to provide any further submissions on appeal in writing after [the transcript has been provided to Mr Broadbent]”.
PROPOSED GROUND 1 – POWER TO REVOKE CANCELLATION
Mr Broadbent’s submissions
Mr Broadbent’s counsel, Mr Mathew Albert and Ms Julie Zhou, submitted that the sole circumstance in which the power under s 501CA(4) can be exercised is prescribed in s 501CA(1). It relevantly provides that s 501CA “applies if the Minister makes a decision … under subsection 501(3A) … to cancel a visa that has been granted to a person”.
Counsel for Mr Broadbent submitted that, in this case, the decision was not made by the Minister, but by a delegate of the Minister. They submitted that the “precondition” to the exercise of power under s 501CA therefore did not exist: citing HWLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1039 at [38]. It follows, so it was submitted, that the Minister lacked power to make any decision under s 501CA of the Act. They submitted that the plain terms of s 501CA(1), read in their statutory context, as well as general principles concerning the statutory phrase “the Minister”, confirm this construction: citing Minister for Home Affairs v Brown [2020] FCAFC 21; 275 FCR 188 (Brown) at [92].
Counsel for Mr Broadbent submitted that Division 2 of Part 9 of the Act contains a series of “interlocking provisions” governing the cancellation of visas: citing Brown at [28], [31], and [95]-[99]. They submitted that the central provision is s 501, being the refusal or cancellation power and that, with the express exception of s 501(3), the Minister’s power under each other subsection in s 501 can be exercised either by the Minister personally or their Delegate.
Counsel for Mr Broadbent submitted that the “interlocking provisions” immediately after s 501 expressly specify what happens after a decision is made under s 501. They submitted that the first subsection of each of the following provisions is the “specified prerequisite” for the remainder of the section, and each “specified prerequisite” pivots on whether s 501 or a related power was exercised by the Minister, a delegate of the Minister or the Administrative Appeals Tribunal (AAT). They also submitted that it is the issue of who in fact made the decision which is the concern of ss 501A, 501B, 501BA, 501C and 501CA, and not the question of who the power is deemed by law to have been exercised by. They submitted that each of these relevant “gateways” only opens if the relevant decision is made by the specified person: citing KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 at [121]; DOB18 v Minister for Home Affairs [2019] FCAFC 63; 269 FCR 636 at [13]; Minister for Home Affairs v CSH18 [2019] FCAFC 80; 269 FCR 206 at [79]. They submitted that, even if it could be said that, when a delegate makes a decision, the power exercised is deemed to have been exercised by the Minister (de jure), this does not mean that the Minister is the person who made the decision in fact (de facto). They further submitted that such a position is consistent with s 496(1A) of the Act.
Counsel for Mr Broadbent submitted that the following list identifies which decision-maker must make the s 501 decision for the “interlocking provision” to apply:
(a)it was said that s 501A concerns situations where the power under ss 501(1) or (2) is exercised by a delegate or the AAT, but not by the Minister;
(b)it was said that s 501B concerns situations where the power under ss 501(1) or (2) is exercised by a delegate, but not by the Minister or the AAT;
(c)it was said that s 501BA concerns situations where the power under s 501CA is exercised by a delegate, but not by the Minister or the AAT;
(d)it was said that s 501C concerns situations where the power under ss 501(3) or 501A(3) is exercised by the Minister, but not by a delegate or the AAT;
(e)finally, it was submitted that the section relevant here, s 501CA, concerns situations where the power under s 501(3A) is exercised by the Minister, but not by a delegate or the AAT.
Counsel for Mr Broadbent submitted that the clear and unambiguous terms of the “gateway provisions” in each of ss 501A, 501B, 501BA, 501C and 501CA distinguish between whether the decision was made in fact by the Minister, a delegate or the AAT. They submitted that this evidenced a consistent and repeated approach as to which provisions apply, which is dependent on who makes the initial decision. They submitted that, in this way, Parliament made it plain that, when it referred to “the Minister” in a “gateway subsection” of these “interlocking provisions”, Parliament meant the Minister personally and, when Parliament referred to a delegate, it did not mean the Minister personally. It was submitted that the distinction drawn among the three types of decision-makers under this Division confirms the parliamentary intent that the statutory “precondition” or “gateway” must be strictly satisfied.
Counsel for Mr Broadbent also submitted that their analysis is supported by item 1 of the table in s 19(1) of the Acts Interpretation Act 1901 (Cth) which in effect provides:
[i]f [the relevant] provision refers to a Minister by using the expression “the Minister”, without identifying the Minister[,] then the Minister referred to is the Minister, or any of the Ministers, administering the provision on the relevant day, in relation to the relevant matter.
They submitted that, where the Act uses the phrase “the Minister”, that phrase means, by default, the Minister or Parliamentary Secretary. They submitted that, in the relevant statutory context, it does not mean “delegate of the Minister” and nor does it mean “person”: citing Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 250 FCR 209 at [75]-[76]; see also Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 at [175]-[177].
Counsel for Mr Broadbent submitted that the result of their analysis is that both s 501(3A) and s 501CA can be exercised by either the Minister or a delegate. They submitted that this is confirmed by s 501G(2)(a) of the Act. However, they submitted that it is only if the Minister in fact makes the decision under s 501(3A) that the power under s 501CA is enlivened: citing McCulloch v Minister for Home Affairs [2019] FCA 54 at [42(1)]. Mr Broadbent’s submissions acknowledge that the primary judge, in reasoning that the Minister did not lack the power to make the relevant decision under s 501CA, relied upon Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548 (Marzano (Full Court)). Counsel for Mr Broadbent accepted, in submissions, that the key finding in Marzano (Full Court) was that the power granted by s 501CA(4) may be exercised by either the Minister or a delegate. However, they submitted that this is so only once the “statutory precondition” is met.
They submitted that the power under s 501CA can only be lawfully exercised if, and only if, it is the Minister who first made the cancellation decision under s 501(3A). Counsel for Mr Broadbent submitted that, as this is not what happened in this case, the Minister’s purported decision was made without power.
Minister’s submissions
Ms Rachel Francois of counsel who appeared for the Minister submitted that the primary judge did not err in holding that the Minister had the power to revoke the cancellation of Mr Broadbent’s visa for the reasons given by the primary judge at PJ [20]-[34]. She submitted that Mr Broadbent’s submissions fail to grapple with s 496 of the Act and s 34AB(1)(c) of the Acts Interpretation Act.
Section 496 of the Act permits the Minister to delegate his powers under the Act. That section provides:
496 Delegation
(1)The Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under this Act.
(1A)The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Minister.
(2)The Secretary may, by writing signed by him or her, delegate to a person any of the Secretary’s powers under this Act.
(3)If an application for a visa that has a health criterion is made, the Minister may:
(a)delegate to a person the power to consider and decide whether that criterion is satisfied; and
(b)consider and decide, or delegate to another person the power to consider and decide, all other aspects of the application.
(4)To avoid doubt, if there is a delegation described in paragraph (3)(a) in relation to an application for a visa:
(a)Subdivision AB of Division 3 of Part 2 has effect accordingly; and
(b)for the purposes of subsection 65(1), the Minister is satisfied or not satisfied that the health criterion for the visa has been satisfied if the delegate who was given that delegation is so satisfied or not so satisfied, as the case may be.
(5) Subsection (1A) does not limit subsection 499(1).
Section 34AB(1) of the Acts Interpretation Act provides:
(1)Where an Act confers power on a person or body (in this section called the authority) to delegate a function, duty or power:
(a)the delegation may be made either generally or as otherwise provided by the instrument of delegation;
(b)the powers that may be delegated do not include that power to delegate;
(c)a function, duty or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the authority;
(d)a delegation by the authority does not prevent the performance or exercise of a function, duty or power by the authority; and
(e) if the authority is not a person, section 34A applies as if it were.
(Bold, italicised text in the original; underlining added.)
Counsel for the Minister submitted that, insofar as Mr Broadbent refers to the fact that the Minister can set aside certain decisions made by the Minister’s delegates or the AAT and other provisions of the Act, that is irrelevant to construing the Minister’s power in s 501CA of the Act to make an original decision.
Counsel for the Minister submitted that, for the reasons given by the primary judge at PJ [29]-[31], the judgment in Marzano (Full Court) precludes the argument now advanced on appeal by Mr Broadbent. She noted that the primary judge explained at PJ [27] that the Full Court in Marzano (Full Court) was addressing the same argument which had been made, and rejected, at first instance before Moshinsky J in Marzano v Minister for Immigration and Border Protection [2016] FCA 1180 (Marzano (First Instance)).
Counsel for the Minister submitted that the primary judge was correct at PJ [32] in observing that the Full Court in Marzano (Full Court) at [45] found that Minister for Immigration and Multicultural and Indigenous Affairs v Watson [2005] FCAFC 181; 145 FCR 542 (Watson) is not analogous to this case and was decided before the mandatory cancellation and revocation regime came into effect.
Consideration of proposed Ground 1
This proposed ground of appeal must be rejected for the reasons that follow.
First, there is nothing in the express words of s 501CA(1) which confine the meaning of “the Minister” to mean a decision personally made by the Minister under s 501(3A). That is because s 501 identifies those powers which may be exercised by a Minister or delegate and those powers which may only be exercised by the Minister personally. For example, s 501(4) provides that “[t]he power under … [s 501](3) may only be exercised by the Minister personally”.
Had the Parliament intended that the mandatory requirement to cancel a visa on character grounds under s 501(3A) be exercised only by the Minister personally, then that would have been expressly stated by reference to s 501(3A) as is the position with s 501(3) by reason of s 501(4). The absence in s 501 of an express limitation that only the Minister personally must act under s 501(3A) unequivocally means that “the Minister” for the purposes of s 501(3A) means the Minister or their Delegate.
Second, Mr Broadbent’s construction requires reading into s 501CA(1) the words “this section applies if the Minister personally makes [the relevant] decision” or perhaps “this section applies if the Minister in fact makes [the relevant] decision”. If the Parliament had intended that s 501CA only applied if a decision under s 501(3A) had been made by a Minister personally or in fact, then the legislation would have so stated as is the case in other subsections of s 501, such as s 501(4). There is no basis to imply words into s 501CA(1) in the manner advanced by Mr Broadbent.
Third, the construction of s 501CA(1) and s 501(3A) advanced by Mr Broadbent would result in a perverse outcome that, if a delegate under s 501(3A) mandatorily cancels a visa on character grounds, then there is no mechanism for an applicant to make submissions under s 501CA for the revocation of the delegate’s decision. Mr Broadbent’s counsel accepted that such an outcome would be perverse. There is nothing in the text, context or purpose of the Act which indicates such an outcome was intended by Parliament.
Fourth, the construction of s 501CA and s 501(3A) advanced by Mr Broadbent ignores the effect of s 496 of the Act, which permits the Minister to delegate his or her powers under the Act. It also ignores the operation and effect of s 34AB(1)(c) of the Acts Interpretation Act, which provides that “a function, duty or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the authority”, which, in this case, is the Minister.
Fifth, the construction of s 501CA advanced by Mr Broadbent is contrary to the reasoning in Marzano (First Instance) which was approved by the Full Court on appeal. In that case, the relevant cancellation decision was made by a delegate under s 501(3A) and it was submitted that only that delegate (or the person holding that position that he or she later vacated) had the power to decide whether to revoke a decision, and the Minister did not have the power to do so. Moshinsky J rejected that submission and stated at [57]-[58]:
57In my view, for the following reasons, the applicant’s construction is not correct. It is clear that, subject to the applicant’s contention, the power in s 501CA(4) may be exercised by a delegate of the Minister or the Minister personally. That a decision as to revocation may be made by a delegate is clear from s 500(1)(ba) which provides that “decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa” are reviewable by the Administrative Appeals Tribunal (the AAT). Similarly, s 501G(1)(f) provides that, where a decision is made under inter alia s 501CA by a delegate of the Minister and the person has a right of appeal to the AAT, certain information is to be provided to the person.
58There is nothing in s 501CA to support the applicant’s construction. The section does not imply or mandate that the person who made the cancellation decision is the only person who can revoke it. The power exercised under s 501CA is a distinct power from that exercised under s 501(3A). To the extent that the applicant relies on an implication from the word ‘revoke’, it is sufficient that both the cancellation decision and the decision as to revocation are reposed in the Minister, albeit that either or both may be made by a delegate of the Minister.
(Emphasis added.)
Moshinsky J also drew a distinction between s 501CA and s 501C where the power of revocation in respect of a decision made under s 501(3) or s 501A(3) is reposed in the Minister personally. Moshinsky J observed at [61]:
Section 501(3A) provides for cancellation of a visa where certain conditions are met. Section 501CA is an ameliorative provision. The rationale for the s 501CA(4) power is that the visa holder was not afforded the opportunity of being heard before the decision to cancel the visa was taken under s 501(3A). Taking these matters into account, it is difficult to see any legislative purpose in restricting the power of revocation to the original decision-maker and precluding the Minister from exercising the power where the cancellation decision was made by a delegate. To the contrary, taking these considerations into account, the legislative purpose is better served by revocation being able to be determined by the Minister personally where the cancellation decision was made by a delegate.
(Emphasis added.)
The Full Court agreed with Moshinsky J in Marzano (Full Court) (per Collier J with Logan and Murphy JJ agreeing). At [36]-[38], [40]-[41], [47]-[48] Collier J (Logan and Murphy JJ agreeing) stated:
36As Gibbs CJ observed in O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 at 11, the answer to the question whether a statute requires a power to be exercised personally by the person designated depends on the nature of the power and all the other circumstances of the case (cf Brennan J in Re Reference under section 11 of Ombudsman Act 1976 for an advisory opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86 at 93).
37It is common ground that, in individual circumstances, the power granted by s 501CA(4) to revoke a visa cancellation decision may be exercised by the Minister or a delegate of the Minister. That a delegate of the Minister may have the power to revoke a visa cancellation decision is notwithstanding that:
•section 501CA itself is couched in terms referring only to decisions of “the Minister”, and
•section 501CA makes no specific reference to decisions of delegates.
38Clearly, s 496 of the Migration Act empowers the Minister, by writing, to delegate to any person any of the Minister’s powers under the Migration Act, including the power to revoke a cancellation decision, and to that extent gives effect to the so-called Carltona principle whereby Ministers of the Crown may properly delegate administrative functions to Departmental officials (Carltona Ltd v Commissioners of Works [1943] 2 All ER 560; O’Reilly 153 CLR 1; Dooney v Henry (2000) 174 ALR 41; [2000] HCA 44). That this is further so in respect of powers conferred by s 501CA(4) is evident, for example, from the terms of s 500(1)(ba) of the Migration Act, which permits applications to be made to the Administrative Appeals Tribunal in respect of:
(ba)decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
…
40The interpretation of s 501CA(4)(b) promoted by appellant – namely that it is only the delegate who can revoke that delegate’s visa cancellation decision (and presumably only the Minister who can revoke a visa cancellation decision of the Minister) – would produce an inflexible practical outcome for which neither statutory nor policy justifications have been advanced. This interpretation would result, for example, in operative inconvenience if the relevant delegate left the Department, or the position of the delegate were reclassified. The proposed construction also ignores the point I have already made, namely that in exercising the power under s 501CA(4)(b) the delegate is actually exercising an administrative power of the Minister, and it follows that any power of revocation is similarly vested in the Minister.
41To that extent it follows that a visa cancellation decision of a delegate can be revoked by either the delegate or the Minister.
…
47Further, as is clear from a perusal of the Migration Act, a number of powers conferred by the legislation can be exercised only by the Minister personally, for example those exercisable under s 500A(1) and (3) (as mandated by s 500A(6)), s 501(3) (as mandated by s 501(4)), s 501A(2) and (3) (as mandated by s 501A(5)), s 501B(2) (as mandated by s 501B(3)), s 501BA(2) (as mandated by s 501BA(4)). This is not the case in relation to decisions under s 501CA(4). There is no statutory mandate in s 501CA which limits either the Minister or a delegate to personally exercise the power conferred by that section – it is common ground that the power conferred by s 501CA can be exercised by either the Minister or a delegate.
48The use of the word “revoke” in this context does not limit the exercise of the power to the maker of the original decision. A decision of the Minister’s delegate made in accordance with s 501(3A) of the Migration Act, which decision was made by the delegate in exercise of the powers of the Minister, can be revoked by the Minister …
(Underlining added.)
These matters were referred to at PJ [27]-[32]. There was no error in the primary judge’s approach.
Sixth, there is simply no reason to accept Mr Broadbent’s contention that different consequences flowed under s 501(3A) depending on who in fact made the decision.
Seventh, Mr Broadbent’s contention that the power under s 501CA(4) is not enlivened when a delegate, and not the Minister, makes the cancellation decision under s 501(3A) must be rejected. As the primary judge observed at [31], such a contention cannot be maintained consistently with the reasoning in Marzano (Full Court) at [37], [38], [40] and [48] (which are extracted above).
Eighth, Mr Broadbent placed reliance on the decision of the Full Court in Watson, which concerned the question of whether the Minister might revoke the Minister’s own decision under s 501(1) or s 501(2). That reliance is misplaced as the observations in Watson were made in the context of provisions of the Act which predated the enactment of s 501(3A) and s 501CA. As was stated at [45] of Marzano (Full Court):
While the observations of the Court in Watson … are pertinent to the consideration of the appellant’s argument concerning the meaning of “set aside” and “revoke”, they are otherwise of limited assistance in construing s 501CA(4). The observations in Watson… were made in the context of provisions of the … Act predating the enactment of those under consideration in this case.
(Emphasis added.)
In these circumstances, the primary judge correctly stated at PJ [32]:
As the Full Court observed in [Marzano (Full Court)] at [45], the observations made in Watson were made in the context of provisions of the Migration Act which predate the enactment of s 501(3A) and s 501CA. By contrast with those provisions, s 501CA specifically addresses revocation of decisions under s 501(3A), which decisions could be made by either the Minister or a delegate. Further, several powers conferred by the legislation can be exercised only by the Minister personally, for example those exercisable under s 500A(1) and (3), s 501(3), s 501A(2) and (3), s 501B(2), and s 501BA(2). Again, by contrast, there is no statutory mandate in s 501CA which limits either the Minister or a delegate to personally exercise the power conferred by that sub-section: [Marzano (Full Court)] at [47].
The primary judge was correct to conclude at [33]:
A decision of the Minister’s delegate made in accordance with s 501(3A) of the … Act, which decision was made by the delegate in exercise of the powers of the Minister, can be subject to the exercise of the power by the Minister, personally, to revoke the cancellation of a visa pursuant to s 501CA(4): [Marzano (Full Court),] [48].
There is no error in the primary judge’s construction of s 501CA or s 501(3A). It follows that proposed Ground 1 must be rejected.
PROPOSED GROUND 2 – ALLEGED FAILURE TO PROPERLY CONSIDER RETURN TO ZAMBIA
Mr Broadbent’s submissions
Counsel for Mr Broadbent submitted that Mr Broadbent advised the Minister, and the Minister had information before him, that Mr Broadbent was born in North Rhodesia, a British Protectorate, which is now Zambia. They submitted that the advice Mr Broadbent provided to the Minister about his status regarding the United Kingdom was that he “was eligible for citizenship of the United Kingdom”.
Counsel for Mr Broadbent submitted that the Minister’s reasons do not make mention of the significance of Zambia being his place of birth. They submitted that the Minister made a jurisdictional error by failing to evaluate the possibility of Mr Broadbent’s removal to Zambia following the cancellation of his visa. They submitted that the Minister made his decision solely on the basis that Mr Broadbent’s “home country” was the United Kingdom. They submitted that the assessment by the Minister of any “hardship” Mr Broadbent might face on removal from Australia was based on the notion that “Australia and the United Kingdom are linguistically and culturally similar”. This, they submitted, was weighed by the Minister in his ultimate analysis of whether to exercise his power under s 501CA. They submitted that, if the United Kingdom is not a practicable country for removal, Zambia will become the prime country where it is practicable to remove Mr Broadbent. It was submitted that the Minister gave no consideration at all to that possibility.
Minister’s submissions
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.
For the reasons given, proposed Ground 2 must be rejected.
PROPOSED GROUND 3 – ALLEGED BREACH OF SECTION 256
After the hearing of the proceeding, counsel for Mr Broadbent brought to the primary judge’s attention a complaint by Mr Broadbent that he had been prevented from attending the hearing by “officers of the Minister” who he alleged had refused him entry to the video conference facility at the Immigration Detention Centre where he was detained. Counsel for Mr Broadbent submitted that the Minister had thereby breached s 256 of the Act.
Section 256 provides:
Person in immigration detention may have access to certain advice, facilities etc.
Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.
By proposed Ground 3, Mr Broadbent contends that, by being denied access to the video conference facility during the hearing at first instance, he was not afforded “all reasonable facilities … for … taking legal proceedings in relation to his … immigration detention”. Counsel for Mr Broadbent submitted that the Minister is liable for this alleged breach.
The relief which Mr Broadbent sought below in respect of the alleged breach of s 256 was set out in a written submission forwarded to the primary judge after the hearing. In those submissions Mr Broadbent sought an order that the Minister provide him with a transcript of the hearing. No other relief was sought.
An extraordinary feature of this aspect of Mr Broadbent’s case both before the primary judge and on appeal is that Mr Broadbent has never asked the Court to provide him with either a copy of the transcript, or access to such a copy. That is a request Mr Broadbent’s legal representatives could have communicated to the primary judge immediately after they became aware that Mr Broadbent was unable to view the hearing.
There is no reason to think that the primary judge would not have looked favourably upon such a request. Instead, Mr Broadbent sought an order that the Minister provide him with a copy of the transcript as relief which he claimed to be entitled for the alleged breach of s 265. This was in circumstances where, as we expect his counsel well understood, the terms on which transcripts are provided to parties by Auscript typically prohibits them from making copies for an opposing party.
The written submissions provided to the primary judge in support of Mr Broadbent’s claim for an order that the Minister provide him with a copy of the transcript did not provide any meaningful explanation as to how the making of such an order would assist either Mr Broadbent or his counsel in the presentation of his case. Rather, the written submissions merely asserted that such an order would “… go some way to remedy the situation created by the [r]espondent’s officers obstruction of Mr Broadbent”. During the hearing of the appeal, counsel was similarly unable to explain how the provision of a transcript to Mr Broadbent after the hearing could have assisted them in the presentation of their legal arguments.
The relief which Mr Broadbent now seeks in respect of proposed Ground 3 is a declaration that the Minister breached his obligations under s 256 of the Act and/or an order that the Minister pay for a transcript of the hearing before the primary judge which may then be provided to Mr Broadbent. No such declaration was sought before the primary judge. Further, the order now sought in relation to the transcript is different from that sought before the primary judge. The order now sought in effect requires the Minister to purchase a copy of the transcript for Mr Broadbent.
The primary judge said at PJ [80]:
For present purposes, I am prepared to accept that the applicant had, or at least had attempted, to book the video conferencing facilities for the purpose of attending the hearing of his application on 19 October 2020 and was prevented from so doing.
Counsel for Mr Broadbent submitted that the primary judge in effect found that Mr Broadbent had been prevented by the Minister’s officers from attending the hearing of his application. It appears the primary judge was willing to accept that Mr Broadbent had booked, or had at least tried to book, the video conferencing facility without making any finding as to when or how he did so and that he was prevented from using the facilities. However, what appears in PJ [80] falls well short of a finding that Mr Broadbent was not afforded reasonable facilities for obtaining legal advice or taking legal proceedings in relation to his immigration detention or that the Minister was legally liable for any failure to provide such facilities in the circumstances of this case.
The evidence relied upon by Mr Broadbent is contained in a brief affidavit he made and filed after the conclusion of the hearing before the primary judge. According to that affidavit, Mr Broadbent was informed by the person responsible for access to the audio visual facilities at the immigration detention centre where he was detained that Mr Broadbent had not made a booking for their use. There is no evidence from which it may be inferred that the information conveyed to Mr Broadbent did not reflect that person’s honest and reasonable belief. Nor is there any evidence to indicate by whom that person was employed or whether he was, as counsel for Mr Broadbent asserted, “an officer of the Minister”.
As the primary judge found at PJ [76] and [77], despite Mr Broadbent being legally represented, the Minister’s solicitors were not informed at any time prior to the hearing that Mr Broadbent wished to observe the hearing, including by using the audio/video facilities at the detention centre. As the primary judge also found, Mr Albert and Ms Zhou, counsel for Mr Broadbent, did not raise with the Minister’s representatives any matter concerning Mr Broadbent’s detention, location, or facilities available for him to appear or participate in the hearing.
Affidavit evidence given by Ms Melinda Jackson, a highly experienced lawyer acting for the Australian Government Solicitor, discloses that, in her experience, if a person in immigration detention is represented by a legal practitioner, then the legal practitioner will determine whether or not their client needs to be present in Court and will notify the Minister’s legal representatives who will then make any necessary arrangements. Her evidence on this topic accords with our own experience in matters involving persons in immigration detention who wish to observe the hearing of a proceeding in which they are legally represented.
As we outlined above, Mr Broadbent’s legal representatives did not notify the Minister’s legal representatives of Mr Broadbent’s desire to be present at the hearing of his case either in person or by audio visual link. The inference we would draw is that it was the failure of Mr Broadbent’s legal representatives to make any such arrangements that most likely led to him being denied access to the audio visual facilities.
The primary judge said at PJ [82]:
In the present case, however, whilst it would have been desirable for the applicant to have been afforded the opportunity to view the proceedings, in circumstances where the applicant was represented by counsel, it cannot reasonably be suggested that he has been denied a full and reasonable opportunity to engage the Court, nor that he has been denied reasonable facilities for taking legal proceedings within the meaning of s 256.
We respectfully agree with the primary judge’s analysis. In our opinion the evidence falls well short of establishing any breach of s 256 of the Act.
As to the relief sought on appeal, we have already mentioned that no declaratory relief was sought before the primary judge. Mr Broadbent requires leave to amend his originating application to seek the declaratory relief he now seeks. No such leave has been sought in this Court and, had such leave been sought, leave would have been refused by us on the basis that that there is no arguable case that could justify the making of the proposed declaration.
EXTENSION OF TIME
Mr Broadbent requires an extension of time to file his proposed appeal. Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth), a notice of appeal should have been filed in this proceeding by 10 December 2020. Instead, Mr Broadbent filed his notice of appeal on 11 December 2020. It was not accepted because it was not filed with an extension of time application. That application was filed on 3 January 2021.
Counsel for Mr Broadbent submitted that the delay in the filing of the appeal was very short, is explained in his affidavit affirmed 22 December 2020 and causes the Minister no prejudice. They submitted that the extension of time should be granted. Counsel for the Minister submitted that the application for an extension of time should be refused on the basis that each of the proposed grounds is untenable.
In our opinion each of the proposed grounds of appeal is untenable and must be rejected. We propose to refuse the extension of time sought on that basis.
DISPOSITION
For the reasons given, the Court will refuse to grant an extension of time within which to bring the proposed appeal. Mr Broadbent must pay the Minister’s costs of the application, to be taxed if not agreed.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Nicholas, Wigney and Anderson. Associate:
Dated: 29 June 2021
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