Callaghan v Minister for Immigration and Border Protection
[2017] FCA 66
•8 February 2017
FEDERAL COURT OF AUSTRALIA
Callaghan v Minister for Immigration and Border Protection [2017] FCA 66
File number: NSD 1695 of 2016 Judge: FLICK J Date of judgment: 8 February 2017 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time – the date of the migration decision
MIGRATION – cancellation of visa – failure to pass character test – failure to consider relevant considerations – the need to establish legal and not factual error
Legislation: Migration Act 1958 (Cth) ss 476A, 476A(1)(b), 477, 477(1) Date of hearing: 14 November 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 31 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Australian Government Solicitor ORDERS
NSD 1695 of 2016 BETWEEN: DAVID GRANT CALLAGHAN
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FLICK J
DATE OF ORDER:
8 FEBRUARY 2017
THE COURT ORDERS THAT:
1.The Notice of Objection to Competency dated 7 October 2016 is dismissed.
2.The proceeding is dismissed.
3.The Applicant is to pay the costs of the First Respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
The Applicant in the present proceeding, Mr David Callaghan, was born in 1968 and came to Australia in August 1996. He is a citizen of New Zealand.
He has an extensive criminal record, including a number of offences committed in New Zealand and Australia. In New Zealand he had been convicted of offences including assaulting a police officer and common assault. In Australia he has been convicted of offences ranging from destroying or damaging property; shoplifting offences; possessing prohibited drugs; and threatening grievous bodily harm. These examples are by no means an exhaustive statement.
On 18 February 2016 his visa was cancelled under s 501(3A) of the Migration Act1958 (Cth) (the “Migration Act”). In cancelling the visa, a delegate of the Minister was satisfied that Mr Callaghan did not pass the character test because of the operation of s 501(6)(a) and s 501(7)(c) of that Act.
On 18 February 2016 Mr Callaghan made a request that the cancellation of his visa be revoked. That request was refused on 31 May 2016.
An Application for Review of the May 2016 decision was then filed with the Administrative Appeals Tribunal. A hearing was held on 15 August 2016. The Tribunal on the same day made orders affirming the May 2016 decision. The Tribunal published its reasons for decision on 15 September 2016: Re Callaghan and Minister for Immigration and Border Protection [2016] AATA 713.
A Notice of Appeal from the Tribunal’s decision was filed in this Court on 29 September 2016. The Questions of Law as set forth in that Notice provide as follows (without alteration):
USED ICO ORDER TO MAKE DECSION THAT HAD EXPIRED / 2 DID NOT MAKE SURE WHAT THE AAT DECSION MAKER WAS READING AND TAKING IN ACCOUNT WAS TRUE AND CORRECT REGARING CERTAIN MATTERS ./3 DID NOT LOOK AT MY CHILD PRIMARY CONSIDERATIONS /4 IN HIS ASSESSMENT OF PRIMARY FACTORS OF RISK TO AUSTRALIAN COMMUNITY TOOK INTO ACCOUNT FACTORS THAT WHERE NOT RELEVANT TO ASSESSMENT OF THE SERIOUSNESS OF THE OFFENCE AND RISK OF REOFFENDING
Mr Callaghan appeared before this Court unrepresented; Counsel appeared for the Respondent Minister.
Section 501
Section 501 of the Migration Act provides in relevant part as follows:
Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
…
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)); or
...
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
...
An extension of time
A preliminary objection taken by Counsel for the Minister was that the present proceeding was out of time and that an extension of time was necessary. In doing so, the Minister relies upon a Notice of Objection to Competency dated 7 October 2016.
In advancing that submission, reliance was placed upon s 477A of the Migration Act. Section 477A provides as follows:
Time limits on applications to the Federal Court
(1)An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
“date of the migration decision” has the meaning given by subsection 477(3).
(4)For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection 477(3).
(5)To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
Section 477 also provides as follows:
Time limits on applications to the Federal Circuit Court
(1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
“date of the migration decision” means:
(a)in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or
…
Section 477, it will be noted, refers to the Federal Circuit Court of Australia and not this Court. The jurisdiction of this Court, the Minister submits, is that conferred by s 476A(1)(b) of the Migration Act, rather than by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).
The parties by consent sought orders that the Notice of Appeal be “treated as an Application under s 477A of the Migration Act … for an extension of time in which to file an application under s 476A of the Act”. Such an order was accordingly made on 2 November 2016.
The factual and legal basis of the submission that the Application to this Court was out of time remained open to question. The submission advanced on behalf of the Minister assumed that:
·time commenced to run from either the date of the Tribunal hearing on 15 August 2016 when it orally made the order affirming “the decision of the delegate” or from the following day when the Tribunal emailed to the legal representatives of the Minister a written copy of that order; and that
·Mr Callaghan was similarly notified by the Tribunal email of the order made on 15 August 2016.
But difficulties emerged in those assumptions when Mr Callaghan asserted that:
·the first date upon which he received an email copy of the Tribunal order was on 28/29 September 2016.
A further potential difficulty emerged by reason of the fact that:
·the Tribunal on 7 November 2016 altered “the text of the decision dated 15 August 2016” by replacing part of its “Decision” with the words “the Minister to refuse to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa dated 31 May 2016, is affirmed”.
Of immediate relevance to the Minister’s submission that the present Application to this Court was out of time was the submission that “the date of the migration decision” for the purposes of s 477A(1) was either 15 or 16 August 2016. It was not immediately self-evident that “the date of the migration decision” of the Tribunal was 16 August 2016 rather than the date upon which Mr Callaghan may have been provided with a copy of the written terms of the decision made on 15 August 2016, namely 28/29 September 2016. Nor was it immediately self-evident that “the date of the migration decision” of the Tribunal may not have been 7 November 2016 or the date upon which Mr Callaghan received a copy of that decision as “alter[ed]”. Counsel for the Minister did not pursue these issues beyond simply contending that a copy of the email forwarded to the Minister on 16 August 2016 was headed “Decision”. The submission that the present Application was out of time may have been correct.
Counsel for the Minister was, nevertheless, on perhaps firmer ground when he submitted that Mr Callaghan had not “specif[ied] why [he] considers that it is in the interests of the administration of justice” that he be granted an extension of time. No affidavit explaining the reasons for any delay has been filed by Mr Callaghan. A note of caution even in this context should nevertheless be expressed: if Mr Callaghan’s contention that he did not receive notification of the Tribunal’s “migration decision” until 28/29 September 2016 be correct, no explanation for delay was called for.
Had the Minister wished to pursue these submissions further, it would have been preferable for more fulsome argument to have been presented in support of the Notice of Objection to Competency.
However these concerns may ultimately be resolved, it is prudent to dismiss the Notice of Objection to Competency and to consider the present Application upon the merits of the Questions of Law identified by Mr Callaghan. Whatever may be the relevant date for the purposes of s 477A(1), and irrespective of whether an extension of time is either necessary or should be granted, the underlying question is whether any of those Questions of Law have any merit. If there is any merit in any of those Questions, any extension of time that may be necessary should be granted; if there is no merit in any of those Questions, any extension of time should be refused.
It has been concluded that none of the Questions of Law raised by Mr Callaghan have any merit and the proceeding should be dismissed with costs.
The merits of the questions of law
The Question of Law as expressed by Mr Callaghan has been construed as raising four separate questions, namely:
·the taking into account of an irrelevant consideration, namely a report which had “expired”;
·the failure to take into account “certain matters”, namely Mr Callaghan’s evidence as to his not using drugs and not consuming alcohol and an impermissible comparison between another case and the facts of his own case;
·the failure to take into account as a “primary consideration” the best interests of Mr Callaghan’s daughter; and
·the taking into account of considerations irrelevant to the assessment of the offence relied upon by the Minister and his risk of reoffending.
In reformulating the Questions sought to be raised by the Notice of Appeal, Mr Callaghan was well aware of the necessity to make good in this Court an error of law in the approach of the Tribunal as opposed to simply asserting factual error.
As to the first of these Questions, the reference to the “ICO” is a reference to a document headed:
INTENSIVE CORRECTION ORDER
ASSESSMENT REPORT
The document is dated 19 October 2015 and is expressed to be “valid for 3 months from the hearing date noted above”, namely 21 October 2015. The recommendation contained within that document is that Mr Callaghan “has been assessed as unsuitable for an intensive correction order” by reason of his “[u]nresolved substance dependency”.
The Assessment Report was included within a number of documents before the Tribunal and characterised by the Tribunal as “relevant”. The Assessment Report was given some degree of prominence in the reasons of the Tribunal. The fact that it was “valid for three months” was noted by the Tribunal: [2016] AATA 713 at [43]. The text of the Assessment Report was thereafter set forth in its entirety in the reasons of the Tribunal: [2016] AATA 713 at [44]. Notwithstanding the submission advanced by Mr Callaghan, it is respectfully concluded that the Assessment Report was a document of some relevance to the decision to be reached by the Tribunal. Given the prominence the Assessment Report was given in the Tribunal’s reasons for decision, it may well have been expected that greater consideration would have been given to the manner in which that document was used by the Tribunal in reaching its ultimate conclusion. But that reservation does not detract from the conclusion that the weight to be given to the document was a matter for the Tribunal alone to resolve. The reasons for decision of the Tribunal disclose an account of the evidence given by Mr Callaghan at the August 2016 hearing: [2016] AATA 713 at [21] to [23]. It could not be suggested that the Tribunal considered the Assessment Report, for example, and failed to consider the contrary evidence given by Mr Callaghan. The factual conclusion reached by the Tribunal was a matter for the Tribunal and not this Court.
The first Question is thus resolved adversely to Mr Callaghan.
As to the second Question, it emerged during the course of submissions before this Court that the allegation sought to be advanced was that:
·the Tribunal failed to take into account, or to properly take into account, “certain matters” – namely Mr Callaghan’s evidence before the Tribunal that he maintained that his past criminal conduct was due to an accepted drug problem and his consumption of alcohol, and his evidence that he no longer drank alcohol or used drugs; and
·the Tribunal took into account the facts of another case and improperly compared that case to the facts of his own.
So explained, these issues are also resolved adversely to Mr Callaghan.
The former aspect to this Question focussed upon Mr Callaghan’s account of his evidence given to the Tribunal. At the outset of the hearing before the Tribunal, Mr Callaghan stated:
I first want to start off with basically I – I haven’t got a drinking problem. I gave that up many many years ago when I realised how it was becoming a habit.
Shortly thereafter, Mr Callaghan also told the Tribunal:
I basically cut all my drugs out now and just on the Methadone program but with more help with Narcotics Anonymous, and more meetings, I think I can get rid of that drug problem. The same goals, I think, with alcohol.
In expanding upon the same argument as presented to this Court, Mr Callaghan asserted that it was erroneous to suggest that there were no drugs available at the Villawood Detention Centre. His willingness to undergo urine testing, he submitted, indicated the factual correctness of his contention that he no longer took drugs – other than prescription medication. But, again, the weight given to Mr Callaghan’s evidence and the weight given to his prior criminal conduct were all matters entrusted to the Tribunal to resolve. No Question of Law arises in respect to the manner in which those matters of evidence were weighed by the Tribunal. As to the latter aspect of this Question, it appeared that the Tribunal member during an exchange with the Minister’s representatives inquired as to whether the Minister was aware of other cases comparable to those presented in Mr Callaghan’s case. No error emerges from the making of that inquiry. It is an inquiry frequently made and properly answered by the Minister’s representatives.
As to the third Question, the Tribunal’s reasons for decision set forth sections of Part C of Ministerial Direction No 65, including the following passage from cl 13(2):
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia;
(c) Expectations of the Australian community.
The Tribunal’s reasons for decision address this question at [83] to [88], including the following:
[83] I now look at the best interests of minor children in Australia. Decision-makers must make a determination about whether revocation is or is not in the best interests of the child. We look at such things as the nature of the relationship …
[84] There is certainly no evidence that the Applicant has ever abused or neglected the child. The child was taken away from her mother and the Applicant has only ever seen the child twice. There would be no trauma at all arising out of the non-citizen’s conduct with the child. The trouble is he does not have a meaningful relationship, unfortunately. He has accepted the auntie was taking care of her, and the child has not seen him since she was probably about two or three.
…
[88] The best interests of minors i.e. his daughter, are not a very strong consideration as he does not know her and she does not know him. There has been no real contact in any meaningful way …
There is no substance to the third Question as posed by Mr Callaghan. The Tribunal recognised the terms of the Ministerial Direction and proceeded to consider as a “primary consideration” the “best interests” of Mr Callaghan’s daughter.
As to the final Question, this Question is but a repetition of Mr Callaghan’s earlier submissions. It is likewise rejected. The “risk of reoffending”, Mr Callaghan repeatedly submitted, was less than that assessed by the Minister if his evidence as to his non-use of drugs and alcohol were accepted. But, again, this was a question for the Tribunal and not this Court.
CONCLUSIONS
No decision is made as to the fate of any application for an extension of time.
The conclusion which is reached is that none of the Questions of law should be resolved in favour of Mr Callaghan. The proceeding should, accordingly, be dismissed.
As Mr Callaghan accepted during the course of the hearing, the Minister was entitled to costs in the event that the appeal was dismissed.
THE ORDERS OF THE COURT ARE:
1.The Notice of Objection to Competency dated 7 October 2016 is dismissed.
2.The proceeding is dismissed.
3.The Applicant is to pay the costs of the First Respondent.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate:
Dated: 8 February 2017
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