BVA18 v Minister for Home Affairs (No.2)
[2019] FCCA 744
•29 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVA18 v MINISTER FOR HOME AFFAIRS (No.2) | [2019] FCCA 744 |
| Catchwords: MIGRATION – Request for revocation of cancellation of visa on character grounds – state prison officers as officers under the Migration Act 1958 – whether state prison officers have an imperative duty to forward a prisoner’s documents to the Commonwealth Minister for Home Affairs. PRACTICE & PROCEDURE – Application for extension of time to bring proceedings – relevant considerations. |
| Legislation: Migration Act 1958, ss.5, 477, 501, 501CA Migration Regulations 1994, reg.2.52, 2.54, 2.55, 5.02 |
| Cases cited: Spencer v Commonwealth (2010) 241 CLR 118 Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 McCulloch v Minister for Home Affairs [2019] FCA 54 AMK16 v Minister for Immigration & Border Protection [2016] FCA 1557 Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 |
| Applicant: | BVA18 |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 3134 of 2018 |
| Judgment of: | Judge Cameron |
| Hearing date: | 20 March 2019 |
| Date of Last Submission: | 20 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 29 March 2019 |
REPRESENTATION
| Solicitor for the Applicant: | Mr M. Jones |
| Counsel for the Respondent: | Mr G. Johnson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The time for the bringing of this proceeding be extended to 9 November 2018.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3134 of 2018
| BVA18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Fiji who was granted a Class BB Subclass 156 One Year Return visa on 14 February 1995. On 13 February 2017 his visa was cancelled by a delegate of the respondent (“Minister”) pursuant to s.501(3A) of the Migration Act 1958 (“Act”) on the basis that he failed to pass the character test under s.501(6)(a) because he had a substantial criminal record (“Cancellation Notice”). On 3 May 2017 the Minister’s department (“Department”) received from the applicant a “Request for Revocation of a Mandatory Visa Cancellation” form (“Revocation Request”). On 19 June 2017 the Department advised the applicant that his Revocation Request was invalid as it had not been made within the prescribed timeframe. On 9 November 2018 the applicant applied to this Court for judicial review of the Department’s decision of 19 June 2017.
The applicant’s application to this Court for judicial review was filed outside the limitation period prescribed by s.477 of the Act and he has applied for an extension of time within which to bring this proceeding.
On 5 December 2018 the Court relevantly ordered that the matter be listed on 20 March 2019 to hear the application for an extension of time and, if granted, the applicant’s application for final orders.
For the reasons which follow, the time within which to bring this proceeding will be extended to 9 November 2018. However, the applicant’s application for judicial review of the Department’s decision of 19 June 2017 will be dismissed.
APPLICATION FOR AN EXTENSION OF TIME
Section 477 of the Act prescribes a limitation period for the commencement of proceedings for judicial review of decisions made under the Act in respect of which this Court has jurisdiction. Under that section the applicant had until 24 July 2017 to commence this proceeding. As he did not file his application until 9 November 2018, this proceeding was filed late and so needs leave to proceed further.
The applicant has satisfied s.477’s formal criteria for an extension of time by making a written application for an extension supported by argument. That being so, consideration turns to the remaining criterion prescribed by the section, which is whether it is in the interests of the administration of justice to extend time. In the circumstances of this case, that question will be determined by whether the applicant has provided a satisfactory explanation for his delay in commencing the proceeding and whether the allegations made in his proposed application for judicial review have merit sufficient to justify them being considered by the Court at a trial. The Minister has not contended that he would suffer prejudice were time to be extended.
Satisfactory explanation for the delay
The relevant chronology is:
Date
Event
13.02.17
Delegate of the Minister cancelled the applicant’s visa pursuant to s.501(3A) of the Act.
13.02.17
The Department sent the Cancellation Notice to the applicant by email to an email address associated with the NSW Department of Justice: [email protected]. The Cancellation Notice contained an invitation to the applicant to make representations about the revocation of his visa and advised him that any such representations had to be made within the prescribed timeframe.
15.02.17
The NSW Department of Justice emailed the Department the applicant’s signed acknowledgment of receipt of the Cancellation Notice.
14.03.17
The applicant signed the Revocation Request.
03.05.17
A Services and Programs Officer from the NSW Department of Justice emailed the applicant’s Revocation Request to the Department.
19.06.17
The applicant was advised by the Department that his Revocation Request was invalid as it had not made within the prescribed 28 day timeframe.
07.06.18
The applicant’s solicitor wrote to the Department and submitted that the Cancellation Notice was invalid because it had not been given to the applicant in a lawful manner. The applicant’s solicitor requested that “a proper notification now be sent”.
25.07.18
The Department advised the applicant’s solicitor that his request for re-notification was still under consideration and he would receive a response once a decision had been made.
07.11.18
The Department emailed the applicant and advised him that it had determined that the applicant’s representations had not been made within the prescribed timeframe and, consequently, the Minister could not consider revoking the decision to cancel his visa.
09.11.18
The applicant applied to this Court for a judicial review of the Department’s decision
On 7 June 2018 the Department was notified that the applicant had appointed a solicitor to represent him. This was nearly a year after the applicant had been advised on 9 June 2017 that the Department had decided that his request was invalid. It is plain from the correspondence reproduced in the Court Book which was Ex.1 that the applicant’s solicitor thereafter corresponded with the Department, arguing that its decision was ineffective because it had not been notified in accordance with the Act, and commenced this proceeding when it was apparent that those submissions had been unpersuasive. I accept that the applicant has a satisfactory explanation for the failure in that period to commence this proceeding.
However, the same cannot be said of the period between 9 June 2017 and 7 June 2018. Reference was made in the applicant’s written submissions to an unsuccessful application for a protection visa having been made in that period but it was not argued that this explained why nothing was done to commence this proceeding. The delay is unexplained by the evidence.
Because a large part of the delay in the commencement of this proceeding is unexplained I conclude that the applicant has failed to provide a satisfactory explanation for his failure to commence this proceeding timeously.
Merits of the substantive application
For the reasons which follow it is apparent that the applicant’s case was one which satisfied the test that it be one with reasonable prospects of success as that term has been explained by authorities such as Spencer v Commonwealth (2010) 241 CLR 118 and more recently Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473, in that his application for judicial review was not based on fanciful or tenuous factual contentions and his case raised real questions of law which deserved to be considered at trial.
Grant of extension of time
Even though the applicant has failed to provide a satisfactory explanation for the delay in commencing this proceeding, because his case has the qualities to which I have referred, on balance I consider that the interests of the administration of justice favour the granting of an extension of time to bring it.
There will therefore be an order that the time for the bringing of this proceeding be extended to 9 November 2018.
Further, it is important to note the terms of the order made on 5 December 2018 quoted earlier in these reasons and to observe that the case was fully argued. In such circumstances, I will now proceed to consider the application for judicial review which is now taken to have been brought in time.
APPLICATION FOR JUDICIAL REVIEW
Allegations
In his amended application filed on 20 December 2018 the applicant alleged:
1.The purported notice dated 13 February 2017 was not a valid notice under s 501CA(3), and the Respondent has not complied with the obligation under that subsection.
Particulars
(a)A notice under s 501CA(3) must be given to the former visa holder as soon as practicable after the decision to cancel the visa under s 501(3A).
(b) The notice must be given by the Minister or a delegate.
(c)The purported notice of 13 February 2017 was not a valid notice because the person who purported to give it did not have a delegation from the Respondent to exercise the power to give such a notice.
(d)The Minister's obligation to give such a notice remains unperformed.
2.In the alternative, if the purported notice was a valid notice it was not given to the Applicant until 15 February 2017 or some date after that.
Particulars
The notice was sent by email to an account held by the Department of Justice of New South Wales. The Applicant had no access to that email address and he had not authorised the Minister to send notices of any kind to that email address. The notice was handed to the Applicant by an officer or employee of the Lithgow Correctional Centre on 15 February 2017 or a later day.
In relation to the first allegation the applicant sought the following relief:
2.A declaration that the letter dated 13 February 2017 from an officer of the Department of Immigration and Border Protection addressed to the Applicant and stating that the Applicant's Class BB visa was cancelled is not a notice that was given by the Respondent pursuant to s.501CA(3) of the Act.
3.An order that the Respondent give the Applicant a notice pursuant to s 501CA(3) of the Act in relation to the Respondent's decision to cancel the Applicant's visa under s 501(3A).
In relation to the second allegation the applicant sought the following relief:
4.In the alternative to orders 2 and 3, a declaration that the notice dated 13 February 2017 was not given to the Applicant until he actually received it on or after 15 February 2017.
5.A declaration that the request for revocation made by the Applicant on 14 March 2017 was a valid request under s 501CA.
The applicant focussed his arguments on the second allegation because he accepted that the Court had to find against him on the first allegation as it was bound by the decision of Markovic J in McCulloch v Minister for Home Affairs [2019] FCA 54. He nevertheless submitted that that case had been wrongly decided.
Evidence
The Court Book discloses that on 9 February 2011 the applicant was convicted in the District Court of New South Wales of assault occasioning actual bodily harm, assault with intent to rob whilst in company and robbery in company whilst armed with a dangerous weapon. The applicant was sentenced to eleven years’ imprisonment with a non-parole period of eight years, the sentences commencing on 1 July 2009 to take account of a period he was in custody following the revocation of an earlier grant of parole. At the time of this hearing the applicant was in immigration detention at an immigration detention centre.
The applicant affirmed two affidavits and gave oral evidence. In his affidavits, the applicant relevantly said:
a)on 15 February 2017 he was handed a copy of the Cancellation Notice and he signed for it;
b)at that time he was an inmate at Lithgow Correctional Centre;
c)it took him some time to complete the Revocation Request because he had to contact his mother, who was on holidays in Fiji and hard to reach, to get some of the information required for the Revocation Request;
d)in order to lodge the Revocation Request, he had to get a prison welfare officer to collect it from him and forward it to the Department;
e)he had put in a request to see a welfare officer at least two days before a female welfare officer saw him on 14 March 2017; and
f)he signed the Revocation Request in the presence of the prison officer on 14 March 2017 and handed it to the officer immediately with a request that it be sent to the Department. He believed “that she had sent the request immediately”. He then collected further documents in support of the request and gave them to the officer to be sent over the following few weeks.
In his oral evidence, the applicant said he could not recall the name of the prison officer who collected the Revocation Request from him but recalled that the officer was male. He was not able to explain why he signed the document in front of the prison officer given that the officer had not also signed the document.
He said that he had told the prison officer that the Revocation Request had to be sent as soon as possible. He knew that he had to make the request within 28 days of having been given the Cancellation Notice and would have known that the following day was the last day to lodge it. He had expected that officer to give the Revocation Request to the welfare officer for her to dispatch, which was part of her duties. He thought that a Ms Pierce had been his welfare officer, she being one of the two welfare officers at Lithgow Gaol.
The applicant said that various documents reproduced in the Court Book had been supplied to the Department with the Revocation Request but was unable to explain why two of those document post-dated it, one being dated 17 March 2017 and another 20 March 2017. He suggested that they had in fact been supplied later. He denied having given the Revocation Request and related documents to Ms Pierce on or about 3 May 2017, which is when she emailed the form to the Department, and reiterated that he had signed it on 14 March 2017.
Evidence in re-examination suggested that the applicant may have confused the despatch of the Revocation Request with receiving the Cancellation Notice, in respect of which he had signed a receipt which was countersigned by a prison officer.
The Court Book reproduced correspondence between the Department and Ms Pierce. The first contact was an email from Ms Pierce to the Department’s National Character Consideration Centre dated 3 May 2017 which attached documents “from [BVA18] in regards to the mandatory visa cancellation under s.501(3A)”. On 19 June 2017 the Department wrote to Ms Pierce by email asking when the Revocation Request had been provided to her to be emailed. She replied the same day saying:
To my knowledge [BVA18] had been working on his application for a long time and was waiting on supporting documents from family and friends outside of the prison system. I believe that this has hindered his ability to lodge it in a timely manner, due to the time it takes to receive incoming mail in the prison system.
I was helping him to coordinate his documents before I went on leave on 13.04.2017. I returned from leave on 02.05.2017, received the document and emailed it on 03.05.2017.
Relevant legislation
Cancellation of visa and revocation
Section 501 of the Act sets out the grounds on which the Department may refuse or cancel a visa based on character grounds. As they applied to the applicant’s case, s.501 relevantly provided:
501 Refusal or cancellation of visa on character grounds
…
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) … and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
…
Character Test
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); …
…
Substantial criminal record
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
A person whose visa has been cancelled under s.501(3A) may, under s.501CA of the Act, make representations to the Minister about having that decision revoked. At all material times, s.501CA relevantly provided:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)…
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) …
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Regulation 2.52 of the Migration Regulations 1994 (“Regulations”) sets out the timeframe for the making of representations. At all material times, it relevantly provided:
2.52 Refusal or cancellation of visa—representations in respect of revocation of decision by Minister (Act, s 501C and 501CA)
(1)This regulation applies to representations made to the Minister under paragraphs 501C(3)(b) and 501CA(3)(b) of the Act.
(2) The Representations must be made:
…
(b)for a representation under paragraph 501CA(3)(b) of the Act—within 28 days after the person is given the notice … under paragraph 501CA(3)(a) of the Act.
Notice of visa cancellation
Section 5 of the Act relevantly provides:
…
immigration detention means:
…
(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii)in a prison or remand centre of the Commonwealth, a State or a Territory; or
…
officer means:
…
(g)any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.
According to a ministerial authorisation made on 29 August 2000 the:
… persons included in the following classes of persons [are authorised] to be officers for the purposes of the Act
· employees of correctional services or prisons departments, or their equivalent, of all States and Territories who are employed at correctional service or prison facilities
· employees of corporations engaged by State or Territory correctional services or prisons departments to provide correctional or prison services for the State or Territory who are employed at correctional service or prison facilities.
Regulation 2.54 of the Regulations provides:
2.54 Definitions for Division 2.10
...
document includes:
(a) …
(b) an invitation, notice, notification, statement or summons, if it is in writing.
Consideration
The starting point of the applicant’s arguments on the second allegation in his amended application was the date on which he was given the Cancellation Notice. On the evidence it is clear that he was handed and signed for the Cancellation Notice on 15 February 2017. Reference was made in argument to reg.2.55 of the Regulations which provides for service of Cancellation Notices on persons. However, by virtue of reg.2.55(2)(b) that rule does not apply to persons in immigration detention, a point which was not raised in argument. Regulation 5.02, which concerns service of documents on persons in immigration detention appears to have been the correct provision. However, for present purposes the apparent confusion is of no significance because each regulation contemplates service by hand and neither prescribes in connection with it a deemed date or time of service different from the date and time of actual service. I therefore find that for the purposes of s.501(CA)(3) the applicant was given a copy of the Cancellation Notice on 15 February 2017.
That meant that under reg.2.52 the applicant had until 15 March 2017 to make his Revocation Request to the Department. The evidence is clear that Ms Pierce did not forward the Revocation Request to the Department until 3 May 2017 and so, if that date is the date on which the Revocation Request was made it must be concluded that the applicant made it late and so it was not a valid request.
However, the applicant argued that on 14 March 2017 he gave the Revocation Request to a prison officer who had been an officer under the Act because in March 2017 he was in immigration detention as that term is defined by the Act (to include imprisonment).
The applicant argued that, given his circumstances at the time, it had been beyond his control to ensure that the Revocation Request reached the Department’s bureaucracy within the 28 day period and the only way he could make his request in time was to give it to a prison officer no later than 15 March 2017 and ask that it be sent on. The applicant’s principal argument was that the officer to whom he had allegedly given the Revocation Request on 14 March 2017 had been under an imperative duty to give the request to the Minister and that his or her failure to do so within the time limit under the Regulations resulted in the Minister erring when determining the date when the Revocation Request had been made. Another, less elaborated, argument was that delivery to an officer in such circumstances amounted to delivery to the Minister and so the Revocation Request had in fact been made in time.
In support of those arguments the applicant referred to the decision of Perry J in AMK16 v Minister for Immigration & Border Protection [2016] FCA 1557. He argued that her Honour had found that an employee of the company (“Serco”) managing an immigration detention centre had control over persons in immigration detention and that this implied a duty to forward to the Department without delay material which the detained applicant had supplied for the Minister’s consideration. He went on to argue that the company’s failure to do this had resulted in the Minister constructively failing to accord procedural fairness to AMK16 when she came to make a decision on his case.
The facts of that case were that AMK16’s visa had been cancelled under s.501(3A) on or about 9 January 2015. On 30 January 2015 the Department received AMK16’s “Request for Revocation of a Mandatory Visa Cancellation” form. The same day AMK16 was transferred from prison to an immigration detention centre. Prior to the Minister’s decision on the revocation request, AMK16 gave further relevant documents to a Serco officer for forwarding to the Department but, for whatever reason, those documents were not before the Minister when she made her decision on the request.
AMK16 submitted to Perry J that those who had had custody of him in the detention centre had been under an implied obligation to transmit to the Department any documents which he submitted for that purpose in relation to his revocation request. He submitted that such an obligation would be consistent with the Act’s statutory scheme for immigration detention and that a failure to perform that implied duty might result in jurisdictional error tainting the decision of the Minister to not revoke the cancellation decision. Referring to Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 especially at 35 [34], Perry J commented that there was obvious force in that argument. However, it was not necessary for her Honour to make a finding on the point because the Minister did not take issue with the proposition that:
… the officers who are properly authorised under the Act are under an obligation to provide material that is supplied to them for provision to the tribunal [sic] in connection with an application for review …
Her Honour relevantly found that the applicant had proved that:
a)the Minister had failed to consider material before her on which the applicant sought to rely; or
b)Serco officers had breached their obligation to transmit correspondence to the Minister relating to the applicant’s request for revocation of the cancellation decision.
Justice Perry considered the second scenario to be the more likely but held that either resulted in the Minister’s non-revocation decision being tainted by jurisdictional error and so invalid.
Consequently, to the extent that her Honour’s decision was based on the Serco officer’s failure to perform a postulated duty to forward documents, it was based on a concession by the Minister in argument, not a finding that in fact such a duty existed or the exact basis of its postulated existence.
Whatever the case, imprisonment is different from immigration detention and most relevantly is not, except in the most technical way, namely by way of definition, a form of immigration detention. It is not obvious that the considerations which applied in AMK16 apply in this case where, at the relevant time, the applicant was serving a term of imprisonment for crimes committed. This important aspect of the matter was not argued in any depth. The applicant’s case was limited to reliance on the fact that prison officers are also defined to be officers under the Act but he did not address the significant difference in the circumstances and duties of prison officers and officers at detention centres. For instance, it has not been shown in this proceeding that state prison officers are susceptible to direction by the Minister, as one must assume is the case with officers in the Minister’s immigration detention centres. Something more than the existence of a status – which has not been shown to be of any material substance – is required in order to find that the relevant state prison officers had a duty to transmit the applicant’s Revocation Request. In this case the Minister did not make a concession of the sort made in AMK16.
Additionally, no reasoning was advanced in support of the proposition made in passing in addresses that provision of documents to an officer under the Act amounted to provision of those documents to the Minister. In the absence of detailed argument on the point I am not prepared to find that an officer under the Act is some form of administrative agent of the Minister for the purposes of receiving documents.
For these reasons I conclude that the applicant has not proved that a breach of an imperative duty occurred if prison officers failed to forward to the Minister or to the Department documents, including the Revocation Request, which the applicant had supplied to them for that purpose.
But in any event, I am not persuaded that the applicant did provide the Revocation Request to a prison officer on 14 March 2017. His account was not consistent. In relation to the events on 14 March 2017, he variously said:
a)he had made an arrangement to speak to a welfare officer to collect and pass on the Revocation Request and a female welfare officer came to see him on 14 March 2017;
b)referring to that evidence, that he signed the document in the officer’s present “with a request that it be sent to the Department of Immigration. I believed that she had sent the request immediately”; and
c)in fact he had not given the Revocation Request and documents to the welfare officer but had given them to a male prison officer and he had expected that officer to pass the documents to the welfare officer for despatch.
In relation to the documents which accompanied the Revocation Request, at first the applicant said in cross-examination that all the documents appearing behind the request in the Court Book accompanied the Revocation Request and then he said that the documents which post-dated the request, but were amongst those documents in the Court Book, must have followed at a later date.
The only consistent element of the applicant’s account was his insistence that the Revocation Request had been given to a prisons employee on 14 March 2017. However, the documentary evidence suggests otherwise.
The picture which emerges from Ms Pierce’s email of 19 June 2017 sent in response to the Department’s query of the same date is one in which the applicant had not completed the preparation of his Revocation Request and accompanying materials before Ms Pierce went on leave on 13 April 2017 and were only sent once she received them all upon her return from leave in early May 2017. It also indicates that Ms Pierce was assisting the applicant to collect what he wanted to send and that nothing was sent until May 2017. There is no mention of an interposed male prison officer. Most importantly, although Ms Pierce had been helping the applicant in the period before her leave in April 2017, there is no suggestion that the applicant had expressed a belief that the Revocation Request had already been lodged in March. Rather, it is implicit in Ms Pierce’s email that the form had not been lodged until 3 May 2017 and that she believed there to have been good reasons why it had been lodged at that point rather than earlier.
I find the evidence of Ms Pierce’s account of events to be more coherent and persuasive than the applicant’s and I prefer it. I therefore conclude that the Revocation Request was not provided to a prison officer or a prison welfare officer on 14 March 2017 or indeed at any time before 13 April 2017. I find that by the time the applicant provided the Revocation Request for despatch to the Minister or the Department, the 28 day time limit had already expired.
CONCLUSION
Although the time to bring this proceeding has been extended to 9 November 2019, the applicant has not shown that the Departmental decision of 19 June 2017 was affected by jurisdictional error.
Consequently, the application will be dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 29 March 2019
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