BTJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Case •

[2022] FCA 1428

•

29 November 2022

FEDERAL COURT OF AUSTRALIA

BTJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1428

Review of: Administrative Appeals Tribunal Decision dated 13 October 2021
File number: QUD 371 of 2021
Judgment of: RANGIAH J
Date of judgment: 29 November 2022
Catchwords: PRACTICE AND PROCEDURE – whether applicant should be granted leave to re-open case to raise a new ground after conclusion of final hearing and judgment reserved – application for judicial review of Tribunal’s decision not to revoke cancellation of applicant’s visa –where applicant’s criminal convictions set aside after judgment was reserved – where interests of justice favour granting applicant leave to re-open his case  
Legislation:

Federal Court of Australia Act 1976 (Cth) s 37M

Migration Act 1958 (Cth) ss 500(1)(ba), 501(3A), 501CA(4)

Federal Court Rules 2011 (Cth) r 4.12

Criminal Code 1899 (Qld) s 408C(1)(b)

Justices Act 1886 (Qld) s 145
Cases cited: Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 34
Date of last submission: 23 May 2022 (Applicant)
6 June 2022 (First Respondent)
Date of hearing: 28 April 2022
Date of interlocutory application: Decided on the papers
Counsel for the Applicant: Mr D Taylor with Ms N Harendran
Solicitor for the Applicant: Sydney West Legal and Migration
Counsel for the First Respondent: Mr B McGlade
Solicitor for the First Respondent: Sparke Helmore
Counsel for the Second Respondent: The Second Respondent filed a submitting notice

ORDERS

QUD 371 of 2021
BETWEEN:

BTJ17

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

RANGIAH J

DATE OF ORDER:

29 NOVEMBER 2022

THE COURT ORDERS THAT:

1.The applicant have leave to re-open his case.

2.Pursuant to r 4.12(1) of the Federal Court Rules 2011 (Cth), a referral certificate issue to the applicant for pro bono counsel.

3.The applicant have leave to file and serve a Further Amended Originating Application by 4.30 pm on 15 January 2023.

4.The first respondent file and serve any further affidavits by 4.30 pm on 1 February 2023.

5.The applicant file and serve any affidavits in reply and a supplementary outline of submissions (not exceeding 10 pages) by 4.30 pm on 14 February 2023.

6.The first respondent file and serve a supplementary outline of submissions (not exceeding 10 pages) by 4.30 pm on 28 February 2023.

7.The proceeding be set down for further hearing on a date to be fixed.

8.The parties have liberty to apply.

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


REASONS FOR JUDGMENT

RANGIAH J:

  1. On 13 October 2021, the second respondent, the Administrative Appeals Tribunal (the Tribunal), affirmed a decision of the delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), not to revoke the mandatory cancellation of the applicant’s visa.

  2. The principal proceeding is an application for judicial review of the Tribunal’s decision.

  3. The Minister’s delegate made the cancellation decision under s 501(3A) of the Migration Act 1958 (Cth) (the Act) on the basis that the applicant had been sentenced to a term of imprisonment of over 12 months and was serving the sentence on a full-time basis in a State custodial institution.

  4. After I had heard argument and reserved judgment, the convictions upon which the applicant’s sentences of imprisonment were based were set aside by the District Court of Queensland on appeal.

  5. The applicant now applies for leave to re-open his case and to further amend his Originating Application.

  6. I will describe the factual and procedural background before considering the parties’ submissions upon the application for re-opening and amendment.

    Background

  7. The applicant is a citizen of Sri Lanka. On 20 September 2012, the applicant arrived in Australia as an unauthorised maritime arrival. The applicant was granted a Bridging (Class WE Subclass 050) visa (the visa) on 27 April 2017.

  8. On 26 February 2021, the applicant pleaded guilty to 30 counts of fraud - dishonestly obtaining property from another, in contravention of s 408C(1)(b) of the Criminal Code 1899 (Qld) in the Magistrates Court of Queensland. The applicant was sentenced to two years’ imprisonment, suspended after three months for an operative period of two years.

  9. The alleged fraudulent conduct comprised of a scheme, conducted over six months from January 2019, by which the applicant represented that he was seeking to hire employees for his business. The applicant directed applicants to purchase a smart phone. Once the smart phones were purchased, the applicant retained the phones on the pretence that he would install an app required to perform the job, but did not return the phones. The sentencing Magistrate estimated that the applicant had acquired approximately $30,000 worth of goods over the course of the six months that the applicant had operated the fraudulent scheme.

  10. On 24 March 2021, the Minister cancelled the applicant’s visa on character grounds under s 501(3A) of the Act.

  11. On 19 April 2021, the applicant made representations seeking revocation of the visa cancellation decision.

  12. On 21 July 2021, the applicant was notified that a delegate of the Minister had determined not to revoke the visa cancellation decision under s 501CA(4) of the Act. The applicant then applied to the Tribunal for review of the delegate’s decision pursuant to s 500(1)(ba) of the Act.

  13. On 13 October 2021, the Tribunal affirmed the decision under review, providing written reasons for its decision on 3 November 2021. The Tribunal was satisfied that the applicant, having been sentenced to a term of imprisonment of two years, did not pass the character test. The Tribunal then turned to consider whether, within s 501CA(4)(b)(ii) of the Act, there was “another reason” why the delegate’s decision should be revoked. The Tribunal concluded that the considerations against revocation outweighed the considerations in favour of revocation, and affirmed the decision under review.

  14. On 8 November 2021, the applicant commenced his application in this Court for judicial review of the Tribunal’s decision.

    The application for leave to file a Further Amended Originating Application and to re-open the case

  15. The hearing of the application for judicial review was held on 28 April 2022.  The applicant was granted leave to file an Amended Originating Application.

  16. On 2 May 2022, the applicant filed an interlocutory application seeking leave to file a Further Amended Originating Application to, “re-open his case to raise a new Ground of Appeal”.

  17. The proposed Further Amended Originating Application indicated that the applicant no longer relied on grounds 2(iv), 2(v) and 4 of the Amended Originating Application and set out the following additional ground:

    1A.The Tribunal finding was affected by jurisdictional error in that the sentencing made by the magistrate was affected by jurisdictional error (and not merely error of law):

    Particulars

    i.The Tribunal finding [at 84] rejecting the Applicant’s contention that he only pleaded guilty to seven charges, was affected by iterative jurisdictional error in that the sentencing itself was affected by jurisdictional error.

    The Tribunal found [at 84]:

    These contentions can be met with the following realities from the material:

    •he did not plead guilty to seven charges. He was dealt with and sentenced for precisely 30 counts. The verdict and judgment record in the material makes this clear. This is also reflected in the sentencing remarks

    The District Court found [at 21]:

    The irregularity means that, in the circumstances of this case, the learned Magistrate lacked jurisdiction to sentence the applicant.

    ii. In the alternative, the Tribunal made a jurisdictional error in failing to consider the confusion in the magistrate’s court as to the number of charges, and the equivocal nature of any apparent or purported pleas to any of the charges.

  18. On 29 April 2022, one day after judgment had been reserved in this Court, the District Court of Queensland extended the time for appeal and overturned the applicant’s convictions. The District Court found that the sentencing Magistrate had not complied with s 145 of the Justices Act 1886 (Qld) and that the pleas of guilty had not properly been taken before the Magistrates Court.

  19. On 23 May 2022, the applicant filed supplementary written submissions addressing the grounds of his interlocutory application. In his submissions, the applicant resiles from his previous withdrawal of grounds 2(iv), 2(v) and 4 of the Amended Originating Application. The applicant seeks to further amend the proposed new ground 1A as follows:

    1A.The Tribunal finding decision was affected by jurisdictional error in that in the determining under s.501CA(4) whether to revoke the original decision on the basis that there is another reason why the original decision should be revoked, the Tribunal

    -failed to consider the evidence in the QP9 material indicating that the Applicant did require an interpreter in the police interview, and also that he indicated that he would require an interpreter at the magistrate’s court hearing,

    -failed to intellectually engage with the Applicant’s contention before the Tribunal that he required an interpreter before the Magistrate’s court hearing and that he did not plead guilty to all the charges,

    -failed to intellectually engage with the Applicant’s contentions that the sentencing made by the magistrate and the sentencing comments that the victims were vulnerable, was affected by denial of natural justice and jurisdictional error (and not merely error of law):

    Particulars

    i.The Tribunal finding [at 83-84] rejecting the Applicant’s contention that he only pleaded guilty to seven charges, and finding that the contention was “implausible and unsustainable” was affected by iterative jurisdictional error in that the Tribunal failed to give genuine intellectual engagement with the Applicant’s contention that he did not plead guilty to all 30 charges and that the hearing was unfair because he did not have an interpreter sentencing itself was affected by jurisdictional error.

    The Tribunal found [at 84]:

    These contentions can be met with the following realities from the material:

    •he did not plead guilty to seven charges. He was dealt with and sentenced for precisely 30 counts. The verdict and judgment record in the material makes this clear. This is also reflected the sentencing remarks

    The District Court found [at 21]:

    The irregularity means that, in the circumstances of this case, the learned Magistrate lacked jurisdiction to sentence the applicant.

    ii. In the alternative, the Tribunal made a jurisdictional error in failing to consider the confusion in the magistrate’s court as to the number of charges, the absence of an interpreter notwithstanding that he had indicated in the police interviews that he would need one, and the equivocal nature of any apparent or purported pleas to any of the charges.

    iii.The Tribunal made a jurisdictional error in finding [at 84] that the applicant had not indicated in the criminal proceedings that he required an interpreter, as the QP9 material before the Tribunal shows that the Applicant did require an interpreter in the police interview that he needed an interpreter and would need an interpreter at the hearing of the charges.

    (Amendments marked up in underlining and strikethrough.)

  20. The applicant contends that the Tribunal, “made a jurisdictional error in finding at [84] that the Applicant did not indicate that he required an interpreter or request one”, as, “this evidence was available within the QP9 material before the Tribunal”.

  21. The applicant submits that in light of the findings of the District Court, it was a jurisdictional error for the Tribunal to find that the applicant’s submission that he had pleaded guilty to only seven counts was “implausible and unsustainable”. The applicant also submits that the Tribunal’s finding that the hearing was not unfair because of the lack of an interpreter was unreasonable, and that it was a jurisdictional error for the Tribunal to fail to give, “any genuine intellectual consideration to [the applicant’s] argument that the Magistrate’s Court hearing was unfair”.

  22. The Minister opposes leave being granted to the applicant to raise the proposed new grounds of judicial review.  The Minister contends that leave to re-open should be refused having regard to the following matters:

    (1)the applicant has not provided a reasonable explanation for the failure to raise the proposed new grounds at an earlier stage in the proceedings;

    (2)the Court should give considerable weight to the need for finality of litigation and the need to keep the ambit of the inquiry within reasonable bounds, having regard to the fact that the applicant has already filed an amended originating application, has sought to further amend the grounds of his originating application twice after the conclusion of the final hearing, and has, “run his case in a haphazard way and in a way which is inconsistent with s 37M of the Federal Court of Australia Act 1976 (Cth)”;

    (3)the proposed new grounds do not have any apparent merit; and

    (4)the Minister may be prejudiced by the new grounds being raised for the first time after the final hearing.

    Consideration

  23. The principles applicable to an application for leave to re-open a case were summarised by Kenny J in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24]:

    The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SASR 285 at 287; Smith v New South Wales Bar Association [No 2] (1992) 108 ALR 55 at 61-2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 (“UTA”) at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard’s Pty Ltd (No 2) [2004] FCA 1310 (“Silver Fox”) at [22] and [25].

  24. These categories are not exhaustive and the overriding consideration for the court is, “whether, taken as a whole, the justice of the case favours the grant of leave to re-open”: Bradshaw at [26].

  25. The judgment of the District Court was not handed down until after I had reserved judgment in the applicant’s judicial review proceeding.  It must be recognised that the outcome of the appeal could not have been known until that judgment was delivered.

  26. The applicant’s proposed new Ground 1A is concerned with the Tribunal’s rejection of the applicant’s claims that he only pleaded guilty to seven charges and that he had not been advised of, and had not pleaded guilty to, the 30 offences of which he had been convicted. The applicant had informed the Tribunal his convictions were being appealed on the basis that his lawyer had told the Magistrates Court that he was pleading guilty to the charges, but he had not been asked about the charges and was unaware of them until he was in prison and was so informed by his current lawyer.

  27. The Tribunal found [at 84]:

    These contentions can be met with the following realities from the material:

    •he did not plead guilty to seven charges. He was dealt with and sentenced for precisely 30 counts. The verdict and judgment record in the material makes this clear. This is also reflected the sentencing remarks.

    •I reject any suggestion that the Applicant was “not advised that there was additional charges” (i.e. beyond the 7 he contends). He was legally represented at the magistrate’s court hearing. There is no submission put on his behalf at the sentencing hearing indicative of a request for an interpreter or that due to some physical or psychological malady, the Applicant did not understand what was occurring. I will not accept any evidence from an Applicant who purports to impugn their previous legal representative about any aspect of their representation that may now be of relevance to the Tribunal in circumstances where that legal representative is not available to give his or her side of the story.

    •I reject any suggestion that the Applicant has now (that is, after his sentencing hearing) been made aware of the full extent of what he pleaded to by his “current lawyer” in circumstances where that “current lawyer” is not identified and was not called to give evidence about what he/she did or did not advise about what the Applicant pleaded to on 26 February 2021.

    •There is no reference to the Applicant’s propounded PTSD in its decision dating from March 2017, and I reject any contention that any PTSD or other condition somehow intervened and prevented the Applicant from understanding what he was pleading to on 26 February 2021. This finding is made on the basis that there is absolutely nothing before the Tribunal from an independent clinician to demonstrate that the previously propounded PTSD (or any other associated or derivative condition) impacted on the Applicant’s capacity to comprehend what occurred at his sentencing hearing on 26 February 2021.

  28. The reasons of the District Court on appeal include the following passages:

    [13]Section 145 was amended in 2017 to include subsections (2) and (3) which provide for a procedure which can be used if a defendant is legally represented; has obtained legal advice in relation to each of the complaints; is aware of the substance of each of the complaints; and consents to pleading in bulk to any number of complaints. Whilst the court is not required to state the substance of any complaint to the defendant the procedure which is required to be undertaken is designed to eliminate the risk of any misunderstanding on the part of the defendant as to the number and nature of the charges. The procedure still requires the defendant to be asked how he/she pleads and does not provide for the plea to be entered by his/her legal representative.

    [14]The applicant has filed an affidavit in which he swears that he came to Australia as a refugee from Sri Lanka in 2012; that he had formal lessons in English for only four months and that he now has only a limited understanding of the English language.  He states that he thought he was pleading guilty to seven charges only; and that he did not understand anything that occurred during the sentence hearing because of his limited understanding of the English language.

    [15]The applicant has also alleged that the instructions he gave his solicitor on two occasions were induced by some impropriety on the part of his solicitor.  He has sworn that he instructed his solicitor that he wanted to plead guilty to only seven charges, that he asked his solicitor for an interpreter for the sentence and that his solicitor refused to ask the court for one to be provided. He further alleges that with respect to the instructions he signed to plead guilty, he did not understand them and they were not read or explained to him by his solicitor.  He further alleges that his solicitor told him that he would likely be fined for his offending.

    [16]The applicant and the respondent have each filed affidavits focused on the ability of the applicant to understand English.  The applicant’s solicitor at the sentence hearing and the investigating police officer have each affirmed their ability to communicate with the applicant without the need for an interpreter. The applicant’s solicitor has denied the allegations of impropriety alleged against him and has exhibited instructions and correspondence which support his account.

    [17]The applicant’s now-immigration solicitor was engaged by the applicant in September 2020 on a judicial review of a decision of the Immigration Assessment Authority to refuse the applicant and his family a protection visa. During the course of this representation, the applicant sought assistance from his immigration solicitor in relation to his criminal convictions. This solicitor has sworn an affidavit in which he states that it was extraordinarily difficult to communicate with the applicant about the criminal matters without the aid of an interpreter.

    [18]The material the applicant has filed suggests that he lacked an understanding of the substance of the charges he was facing and lacked the intention to plead guilty to all of them. Whilst there is a dispute as between the respondent and applicant as to the extent of his understanding of the English language, given the confusion at the sentence hearing as to the number of charges before the court, there exists in my mind a possibility that the applicant has been wrongly convicted. Despite that he was legally represented by a competent and experienced solicitor at the sentence hearing, the confusion as to the number of charges and the confusion which arose from the statement of facts as to the substance of those charges, means that whilst the applicant’s legal representative by inference, waived compliance with section 145, that non-compliance has obscured the ability to determine whether the pleas indicated were equivocal.

    [19]There are three well recognised circumstances in which a plea of guilty will be set aside on appeal. Firstly, if the applicant did not understand the nature of the charge and did not intend to admit guilt.  Secondly, if the applicant could not, in law have been guilty.  Thirdly where the guilty plea was obtained by improper inducement, fraud or intimidation.

    [20]The failure to comply with s 145 of the Justices Act 1886 (Qld) has obscured, in my view, a proper consideration of whether the applicant entered unequivocal pleas of guilty to the 30 charges of fraud.

    [21]The irregularity in this case has resulted in serious consequences to the applicant in terms of his serving a sentence of actual imprisonment and the cancellation of his bridging visa. The irregularity means that, in the circumstances of this case, the learned Magistrate lacked jurisdiction to sentence the applicant.

    [22]My orders are:

    1.Extend time within which to appeal against conviction to 26 November 2021;

    2.The appeal is allowed;

    3.The convictions are set aside;

    4.The matter is remitted to the Magistrates Court to be dealt with according to law.

    (Citation omitted.)

  1. The applicant relies upon the judgment of the District Court in relation to his new and amended grounds. It is not clear how the applicant contends that judgment operates to demonstrate jurisdictional error on the part of the Tribunal, but I consider that the applicant should have the opportunity to present his argument. That is particularly so in light of the apparent injustice of the decision to cancel the applicant’s visa remaining in force despite the setting aside of the convictions from which the cancellation stemmed.

  2. I consider that the applicant should be granted leave to file a Further Amended Originating Application and to re-open the case.

  3. This is a matter where the Court would be assisted by submissions from counsel given the nature and complexity of the proceeding. I will order, pursuant to r 4.12(1) of the Federal Court Rules 2011 (Cth), that a referral certificate issue for pro bono counsel. It will be a matter for the applicant and his solicitors as to whether he takes advantage of that certificate.

  4. I do not propose to confine the applicant to the grounds set out in his draft Further Amended Originating Application since he may be represented by counsel who may wish to argue other grounds.

  5. The Minister should be given the opportunity to adduce further evidence in view of his submission that the Minister may be prejudiced by new grounds being permitted to be raised after the hearing.

  6. I will make directions for the filing of further material and submissions and for a further oral hearing.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.

Associate:       

Dated:       29 November 2022

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