CGU23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 892
•5 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CGU23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 892
File number(s): SYG 1486 of 2023 Judgment of: JUDGE GIVEN Date of judgment: 5 October 2023 Catchwords: MIGRATION – Application for extension of time – cancellation of visa based on criminal offences – where applicant waited a year to seek judicial review while knowing about decision and time limit Legislation: Migration Act 1958 (Cth) ss 48, 116, 189, 477
Migration Regulations 1994 (Cth) reg 2.43
Cases cited: AAI18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 924
AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
BQS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 13
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
CNY17 v Minister for Immigration & Border Protection (2019) 268 CLR 76
DHX17 v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Jackamarra v Krakouer (1998) 195 CLR 516
Jess v Scott(1986) 12 FCR 187
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507
Minister for Immigration, Citizenship, MigrantServices and Multicultural Affairs v Parata (2021) 284 FCR 62
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
Patel v Minister for Immigration and Border Protection [2014] FCCA 2000
Sharma v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 939
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
SZLHM v Minister for Immigration and Citizenship [2008] FCA 754
SZRIF v Minister for Immigration and Border Protection [2015] FCA 690
SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456 at 458
Tran v Minister for Immigration and Border Protection[2014] FCA 533
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs(2022) 403 ALR 604
WZAUH v Minister for Immigration and Border Protection [2019] FCCA 2018
Xiong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1075
Division: Division 2 General Federal Law Number of paragraphs: 95 Date of hearing: 28 September 2023 Place: Sydney The Applicant: In person Solicitor for the Respondents: Ms B Rayment of Sparke Helmore ORDERS
SYG 1486 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CGU23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
5 OCTOBER 2023
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the application for an extension of time made on 30 June 2023, is refused.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN
Before the Court is an application for an extension of time in which to seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 19 May 2022 (Court Book (CB) 105 to 108). By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (delegate) to cancel the applicant’s Temporary Work (Skilled) Subsequent Offshore (class UC) (subclass 457 visa (visa) under s 116 of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The background to this matter has been derived from written submissions of the first respondent but, unless otherwise indicated, does not appear to be in dispute.
The applicant is a citizen of India who was granted the visa while offshore on 28 October 2015, as the dependant spouse of his wife. The expiry date for the visa was 23 October 2018 (CB 24). The applicant first arrived in Australia on 10 November 2015 (CB 29 and 80). He was subsequently included as a secondary applicant to an application made by his wife on 20 April 2017 for a Subclass EN 186 visa, which was refused on 16 November 2018 (CB 77 and 80 at [4]).
On 10 April 2018, the applicant’s wife advised the first respondent’s Department that her relationship with the applicant had ended (CB 107 at [13]).
On 4 September 2018, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) and invited him to comment (within 5 working days of deemed receipt) upon it (CB 7 to 12). The NOICC advised the applicant that there appeared to be grounds for cancelling his visa because he had been convicted by the Australian Capital Territory (ACT) Magistrates Court on three occasions for the following offences:
(a)15 February 2018: for driving and vehicle offences;[1]
(b)22 June 2018: for offences relating to minor theft and driving while under a license suspension[2] in relation to which “good behaviour” orders were made;[3] and
(c)29 June 2018: for offences relating to obtaining property by deception, minor theft, and apprehension under warrant,[4] in respect of which “good behaviour” orders were also made.[5]
[1] Affidavit of Benjamin Mayne affirmed 30 August 2023 (Mayne Affidavit) at 9
[2] Mayne Affidavit at 7 to 8
[3] Mayne Affidavit at 11 to 22
[4] Mayne Affidavit at 4 to 6
[5] Mayne Affidavit at 23 to 34
On 7 September 2018, the applicant responded to the NOICC by email (CB 13 to 14) the content of which can be summarised as follows:
(a)the applicant lost his job three months prior to the driving offences at which time he was experiencing difficulties, was unable to find new employment and had arranged with the relevant authorities in Canberra to repay the fines in instalments;
(b)the applicant accepted that he had made mistakes during the period spanning the three-to-four-months in which the offences occurred, but that he had not otherwise made any mistakes or committed any crimes in the three years between his arrival in Australia until the convictions;
(c)the applicant found accommodation and employment as a full-time cleaner, commuted to work by bus and was driven home by a friend. The applicant indicated that he would reacquire his driver’s licence on 21 September 2018; and
(d)the applicant promised to not reoffend because he felt his life was going in the right direction, and he wished to maintain his lifestyle in Australia.
On 18 September 2018, the delegate cancelled the applicant’s visa under s 116(1)(g) of the Act (CB 24 to 31). The delegate was satisfied that there was a ground for cancelling the visa under s 116(1)(g), relying on the prescribed ground in reg 2.43(1)(oa) of the Migration Regulations 1994 (Cth) (Regulations). The delegate was further satisfied that the ground for cancellation outweighed the reasons not to cancel.
On 18 September 2018, the Department notified the applicant of the cancellation decision (CB 19 to 23). The first respondent acknowledges that said notification was affected by an error of the kind identified in Minister for Immigration, Citizenship, MigrantServices and Multicultural Affairs v Parata (2021) 284 FCR 62.
The applicant remained in Australia as an unlawful non-citizen after the first respondent’s decision was made until when, on 10 October 2018, he was located by NSW Police and detained (CB 80 at [3]).
The applicant applied for a Protection visa on 14 December 2018 which was refused by a decision the first respondent on 25 January 2019, and subsequently affirmed by the Tribunal on 29 March 2019 (CB 79 to 92).
On 9 December 2021, the applicant applied to the (then) Federal Circuit Court of Australia for an extension of time in which to seek judicial review of the Tribunal’s Protection visa decision (FCCA proceedings).
The applicant’s Bridging (Subclass 050) visa E associated with the FCCA proceedings (Bridging visa) was cancelled on 24 November 2020 because of his breach of condition 8564 which required that he not engage in criminal conduct. The applicant was charged with possession of heroin (CB 107 at [15]), and subsequently detained at Yongah Hill Immigration Detention Centre (Yongah Hill) in Western Australia.
On 23 March 2022, the Department re-notified the applicant of the first respondent’s decision to cancel the visa by hand delivery to Yongah Hill (CB 32 to 36). On the same day, he applied to the Tribunal for review of the first respondent’s decision (CB 37 to 54).
On 21 April 2022, the Tribunal notified the applicant by hand delivery to Yongah Hill that he was invited to attend a hearing by videoconference[6] at 9.30am (Australian Western Standard Time) on 6 May 2022 (CB 59 to 61).
[6] Noting that the Tribunal member would be located in South Australia (CB 59)
On 5 May 2022, the applicant appointed a solicitor as both his representative and authorised recipient (CB 63 to 64). The applicant’s solicitor provided a postal address in Victoria and the email address “[email protected]” for receipt of documents (nominated email address). By the covering email which attached the relevant appointment form, the solicitor requested that the hearing be postponed by a week. On the same day, the Tribunal replied to the applicant’s solicitor stating that the request had been forwarded to the Senior Member but that, unless otherwise indicated, the hearing would proceed as scheduled (CB 65).
On 6 May 2022, the applicant attended the Tribunal hearing via videoconference with his solicitor (CB 66 to 68). The hearing record indicates the hearing having adjourned (after approximately 9 minutes) to another occasion (CB 66 to 68). On the same day, the Tribunal invited the applicant (via his authorised recipient) to a rescheduled hearing by videoconference on 19 May 2022 (CB 69 to 72). It can be inferred from later correspondence (see [18] below) that, despite not being recorded on the hearing record, leave was granted to the applicant to file written submissions in advance of the hearing, by 13 May 2022 (CB 74).
On 12 May 2022, the FCCA proceedings were dismissed.[7]
[7] Without publication of the ex tempore reasons for decision
On 17 May 2022, the Tribunal wrote to the applicant’s solicitor to enquire about the whereabouts of any written submission, noting that the time for lodgement had now passed. The applicant’s solicitor responded later that morning, saying (CB 73):
We are doing submissions today as confronting issues to take instructions from the applicant being in detention centre.
At approximately 10.30pm (ACST[8]) on 17 May 2022, the applicant’s representative provided written submissions to the Tribunal by email.
[8] Noting that the Tribunal member was in South Australia
On 19 May 2022, the applicant attended the rescheduled Tribunal hearing via videoconference, as did his solicitor (CB 93 to 95). At the hearing the applicant, inter alia, confirmed to the Tribunal that he had been fined for possession of heroin in 2020 (CB 107). At the conclusion of the hearing, the Tribunal made an oral decision affirming the decision of the delegate (CB 99).
On the same day, the Tribunal sent a notification of the fact of its oral decision to the applicant, via his authorised recipient at the nominated email address (CB 96 to 102). That notification advised the applicant that he may request a written statement of the reasons for decision within 14 days (CB 98).
Tribunal’s decision
On 20 June 2023, the applicant wrote to the Tribunal to update his email address and requested a copy of the Tribunal’s written reasons for decision (CB 103). The Tribunal replied to him and also provided a freedom of information request form to request access to a copy of the hearing audio file (CB 104).
On 25 July 2023, the Tribunal published its written reasons for decision (CB 105 to 108).
The Tribunal identified that the issue for determination was whether the ground for cancelling the applicant’s visa under s 116(1)(g) of the Act, as detailed in reg 2.43(1)(oa) of the Regulations, was made out and, if so, whether the visa should be cancelled (CB 106).
The Tribunal set out the applicant’s convictions and found that, because he had been convicted of several offences, the ground for cancellation under s 116(1)(g) of the Act and reg 2.43(1)(oa) of the Regulations existed (CB 106).
The Tribunal then considered whether to exercise its discretion to cancel the visa and had regard to the circumstances of the case, the applicant’s evidence, and the matters identified in the Department’s Procedures Advice Manual (PAM 3) (CB 106).
In relation to the purpose of the applicant’s travel to and stay in Australia, the Tribunal recorded that:
(a)the visa would in any event have ceased by 28 October 2019 (CB 107 at [13]);
(b)the applicant’s wife had advised the Department that their relationship had broken down and that she obtained a divorce while he was in detention (CB 107 at [14]); and
(c)the applicant applied for a Subclass 186 visa as a secondary applicant, which was ultimately refused on 16 November 2018.
The Tribunal found that the breakdown of the applicant’s relationship with his wife, together with the circumstances which followed that development, meant that the purpose for which the visa had been granted no longer existed because he was no longer the dependent spouse of the primary visa holder. The Tribunal also found that even if the relationship had not broken down, the visa would have ceased by the time of its decision (CB 107 at [15]).
In relation to the extent of compliance with visa conditions, the Tribunal recorded having raised with the applicant at the hearing its concern that he had breached condition 8564 of his Bridging visa when he was fined for possession of heroin in 2020 (CB 107 at [15]). It found that he had breached a condition of a subsequent Bridging visa, but otherwise acknowledged that there was no other information to show that he had breached the conditions of his Subclass 457 visa (CB 107).
In relation to the degree of hardship which may be caused, the Tribunal acknowledged the applicant’s evidence that living in detention for two years had been very difficult, that he felt disconnected from his brother and friends in the community, that contact with them was not meaningful to him, and that he had been clean, attended alcoholics anonymous meetings and undertaken drug and alcohol courses since being detained (CB 107 at [16]). It also considered his submission that his family would disown him, his claim that he would suffer financial and emotional problems, and his evidence that his brother was an Australian citizen and his mother lived in Australia (CB 107 at [17]).
Overall, the Tribunal accepted that the cancellation of his visa would cause the applicant financial and emotional hardship (CB 107 at [17]).
Regarding the circumstances in which the ground for cancellation arose, the Tribunal acknowledged that the applicant had been homeless and had lost his job at the time he committed the offences the subject of the visa cancellation (CB 107 at [18]).
Regarding the applicant’s past and present behaviour towards the Department, the Tribunal found that there was nothing to indicate that his behaviour had been adverse (CB 108), however, it also found (errors in original) (CB 108):
…you did comply with the requirements of your good behaviour order and praised be the court, and again, you gave told me that this is because of your circumstances at the time, being homeless and living in your card.
In relation to whether there were any mandatory legal consequences of the cancellation, the Tribunal found that the applicant would continue to be an unlawful non-citizen who was liable to continued detention under s 189 of the Act, and would be limited in applying for further visas onshore under s 48 (CB 108 at [20]).
In relation to whether any international non-refoulement obligations would be breached because of cancelling the visa, the Tribunal recorded that the applicant previously applied for a Protection visa, the Tribunal decision regarding that application was before the Court for judicial review, and found that non-refoulement obligations could be addressed through that protection visa application which remained active (CB 108 at [21]). It appears that the Tribunal was unaware of, and not told, that the FCCA proceedings had concluded 7 days earlier (see [17] above).
Having considered the circumstances as a whole, the Tribunal was satisfied that the visa should be cancelled and affirmed the decision under review (CB 108).
PROCEEDINGS BEFORE THIS COURT
On 30 June 2023, the applicant filed the application for an extension of time in which to seek judicial review of the Tribunal’s decision. The proceedings were commenced in the Perth Registry of the Court, presumably because the applicant was then located at Yongah Hill. The proceedings number assigned to the proceedings referred to the Perth Registry (first Court file) and the applicant was not given a pseudonym, presumably because the visa which is the subject of the Tribunal’s decision sought to be reviewed if time is extended, was not a protection visa. A review of the first Court file and the present Court file reveals the following.
On 3 August 2023, a Registrar of this Court made procedural orders for the preparation of the proceedings for hearing.
Also on 3 August 2023, the applicant filed an Application in a Proceeding (AIP) seeking an interlocutory injunction restraining his removal from Australia which came before a Judge of this Court on the same day, sitting in his capacity as duty Judge (duty Judge). By the AIP, the applicant said (original case):
I NEED THE BORDER FORCE TO STOP MY REMOVAL FROM AUSTRALIA BECAUSE I STILL HAVE PROCEEDINGS GOING ON.
An Affidavit in support of the AIP included formal parts but did not contain anything within its body. There is no evidence before the Court, other than the statement in the AIP, that the applicant was and/or is on a removals pathway. The AIP was heard by Microsoft Teams, and dismissed, by the Duty Judge on 3 August 2023. Costs of the AIP were reserved.
On 15 August 2023 the proceedings were docketed to a Judge of the Court (first primary Judge) and the parties were sent a listing notice indicating that the matter would be heard by the Court in Perth at 1:00pm on 20 September 2023.
On 15 September 2023, the solicitors for the first respondent informed the Chambers of the first primary Judge, by email, that the applicant would be transferred from Yongah Hill to Villawood Immigration Detention Centre (Villawood) (in New South Wales) on 18 September 2023 and sought leave for the applicant to appear by videolink. Subsequent correspondence confirmed that the applicant had been so transferred.
On 20 September 2023, the first Primary Judge made orders, inter alia, that the matter be transferred to the Sydney Registry of the Court to enable the applicant to appear in person, as had been originally intended by the Court. The first respondent was ordered to serve further copies of the Court Book and any written submissions filed in this matter on the applicant (both in hard copy and electronically) by close of business on 21 September 2023 (transfer order).
On 20 September 2023, and pursuant to the transfer order:
(a)the applicant was given a pseudonym (being a different pseudonym than that which was assigned for the FCCA proceedings); and
(b)the proceedings were:
(i)docketed to me; and
(ii)assigned a Sydney Registry proceeding number to prevent of the applicant from the first Court file.
On 21 September 2023 I listed the matter for hearing before me on 28 September 2023 and made the following additional orders:
…..
2.The first respondent is to make arrangements for, and ensure, the transportation and in-person attendance of the applicant at the hearing referred to in Order 1 above.
3. At least 2 days before the hearing referred to in Order 1 above, the first respondent must file and serve an Affidavit pursuant to rule 6.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) which evidences:
a. compliance with order 5 made by Judge Kendall on 20 September 2023; and
b. any relevant additional service of documents (other than those already the subject of Affidavits filed in the proceedings prior to the transfer of the proceedings to the Sydney Registry).
THE COURT NOTES THAT:
The hearing referred to at Order 1 is to occur at Level 13, 80 William Street, Woolloomooloo, 2011.
On 22 September 2023, an Affidavit of Georgina Robert Ellis, affirmed the same date, was filed with the Court (Affidavit of Service).
The applicant appeared before me in person at the hearing on 28 September 2023. He was unrepresented. The Court had arranged for an interpreter in the Punjabi language[9] (who remained throughout the hearing out of an abundance of caution). However, the applicant is fluent in English and elected to address the Court without recourse to the services of the interpreter. The first respondent was represented by a solicitor.
[9] Noting that the applicant had not requested an interpreter, nor used one, in any hearing before the Tribunal. However, an interpreter had been arranged for the hearing of the FCCA proceedings and the Court made a decision in the instant proceedings to do so as well.
The Court Book was tendered for the first respondent and marked Exhibit “1R”. In addition, the following Affidavits were read for the first respondent:
(a)Affidavit of Service; and
(b)Mayne Affidavit.[10]
[10] See footnote 1 above.
An Affidavit filed by the applicant in support of the application for extension of time essentially did nothing more than to annex a copy of the Tribunal’s decision which was already in the Court Book and, accordingly, was not read.
EXTENSION OF TIME
By his application for extension of time, the applicant advances the following grounds as being the basis upon which he says time ought be extended (errors in original):
1.I AM REPRESENTING MY SELF BECAUSE I DO NOT HAVE ANY LEGAL ASSISTANCE.
2.THE TRIBUNAL OVERLOOKED AND DID NOT CONSIDER ALL OF MY SUBMISSIONS.
3.THE TRINUNAL’S DECISION IS BIASED.
If time were to be extended, the following grounds are advanced by the applicant:
1.THE ADMINISTRATIVE APPEALS TRIBUNAL’S (THE AAT) DECISION IS AFFECTED BY APREHENDED AND OR ACTUAL BIAS.
2.THE AAT FAILED TO TAKE INTO ACCOUNT RELEVANT CONSIDERATION.
3.THE AAT RELIED ON IRRELEVANT CONSIDERATIONS.
4.THE AAT’S DECISION WAS UNREASONABLE.
The proposed substantive grounds which are set out in the preceding paragraph are identical to the grounds which the applicant raised in the FCCA proceedings by which he sought to challenge the decision of the Tribunal in relation to his protection visa decision. The applicant conceded the similarity at hearing before me and said that he had asked a person assisting him if he was allowed to repeat the grounds, and they said yes. As the Court explained to the applicant, although he is not precluded from raising the exact same grounds, the allegations are made at a level of generality such that they do not specifically engage with the decision in question. The Court will not take this duplication into account as an adverse factor in assessing the relative merit of the proposed grounds. However, it can be observed that by using grounds which are not particularly tailored to the decision at hand, the applicant may do himself a disservice, similar to applicants who advance template grounds from third parties: see AAI18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 924 at [40] to [41] citing SZLHM v Minister for Immigration and Citizenship [2008] FCA 754 at [35] to [36] per Flick J.
It will be observed that (with the possible exception of ground 1 under the heading “Grounds of application for extension of time”) the purported grounds in support of the extension of time do not appear to explain why it is that the applicant did not commence his proceedings within the requisite period. Rather, the grounds which are set out at [50] above go to the substance of the Tribunal’s decision. As such, the Court will consider those grounds as being the first three of a total of seven substantive grounds of review which are sought to be advanced in the event that time is extended.
Principles
Any application for judicial review in a Migration proceeding must be filed in this Court within 35 days of the date on which the decision being reviewed was made. Section 477(2) of the Act gives the Court the power to extend the 35-day time limit if satisfied that it is necessary in the interests of the administration of justice to do so.
Other than the interests of the administration of justice, there are no factors prescribed by s 477, nor any other requirements, which give rise to mandatory considerations in determining whether to exercise the discretion to extend time: SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456 at 458 at [11] to [12] per Bromwich J, 459 at [18] per Flick J and [19] per Allsop CJ; and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 to 40 per Mason CJ. However, the following factors usually arise for consideration:
(a)length of delay and the explanation for it;
(b)any prejudice to the parties; and
(c)whether the applicant’s substantive grounds seeking judicial review justify the extension of time, noting that “[w]hether that standard of veracity is described as being ‘arguable’; ‘reasonably arguable’, or ‘sufficiently arguable’ or having ‘reasonable prospects of success’”, the hurdle is relatively low: DHX17 v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 at [76] per Collier, Rangiah and Derrington JJ. The examination of the substantive grounds of review should not generally go beyond a reasonably impressionistic level: see DHX17 (supra) at [45] citing MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 (and in turn Jackamarra v Krakouer (1998) 195 CLR 516 at [7] to [9] per Brennan CJ and McHugh J), albeit it will sometimes be appropriate that the grounds be considered: see Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs(2022) 403 ALR 604 at [609] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
I outlined the above-mentioned factors for the applicant at the beginning of the hearing and then again separately during the course of oral submissions, so that he had a chance to address each of them. In the absence of the applicant having clearly provided an explanation for why his application was out of time, he was invited to give an explanation at the hearing.
Length and explanation of delay
As noted, any application to this Court was required to have been made within 35 days of the Tribunal’s decision on 19 May 2022. By reference to that date, the last date upon which the applicant was required to have been made was 23 June 2022. Accordingly, the application made on 30 June 2023 was 372 days out of time.
As will be appreciated from [49], [52] and [56] above, the applicant did not advance any ground which seemed obviously directed to explaining the delay. In submissions made to the Court at hearing the applicant said that after the Tribunal made its decision, he asked his (then) solicitor (to whom he says he paid $5,000 for representation in the Tribunal) how much he would have to pay to seek judicial review. The applicant says he was told that for an application to the Court he would be required to pay a further retainer in the range of $10,000 to $15,000, which he could not afford. The applicant says he tried to find representation for a lesser price but could not. The applicant said that he tried his best, but because he was in immigration detention, this made matters more difficult.
At hearing, the applicant expressly conceded knowing that the Tribunal had refused him from the time the oral decision was made in his presence. He was also candid in expressly acknowledging that he was aware there was a time limit in which to seek review. The applicant said that, at various times in the year following the Tribunal’s decision, he had not fully decided whether judicial review was a course he wished to pursue. Ultimately, it seems from submissions the applicant made at hearing that he had been assisted by another person in immigration detention to prepare and file his application to the Court, albeit he ultimately did so himself.
The applicant confirmed that the first ground under the heading “Grounds of application for extension of time” is intended to be his explanation for delay.
By his written submissions the first respondent says that the delay is “inordinate” and that the length itself justifies refusing to extend time (citing WZAUH v Minister for Immigration and Border Protection [2019] FCCA 2018 at [16] to [20] per Judge Lucev), that the limitation period of 35 days prescribed under the Act should be rigidly applied by the Court, and the effect of that period is that it may often result in a good cause of action being defeated (citing Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491 at [16] per McHugh J and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 per McHugh J).
Despite the absolute position contended for by the first respondent, it is necessary for the Court to consider delay among a host of relevant factors. While acknowledging that the aforementioned submissions reflect a point in time at which the time limits were unbendingly enforced, the evolution of jurisprudence in the Migration jurisdiction is such that given the discretion the Court must exercise, it would be an extraordinary case in which the delay itself could singularly inform the question of whether to extend time.
Within the array of cases filed out of time in this jurisdiction, a 1 year delay is lengthy but (unfortunately) not an outlier. While an objectively lengthy period of delay may be the determinative factor in refusing to exercise a discretion, even if the underlying application has merit (see Tran v Minister for Immigration and Border Protection[2014] FCA 533 at [38] per Wigney J), it is preferable to approach the question in a qualitative way. As the Federal Court observed in Jess v Scott(1986) 12 FCR 187 per Lockhart, Sheppard and Burchett JJ, the longer the delay, the more persuasive the explanation for it needs to be. In saying so, I also apply the same caution discussed in BQS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 13 at [55].
The applicant’s explanation for delay, namely that he was unable to obtain legal representation is, overall, unpersuasive.
While the Court acknowledges there may be additional challenges in securing advice and/or representation for persons in immigration detention, in the present case this does not justify why the application was not filed within time. The candour of the applicant at hearing yielded additional factors in his delay including that he had not fully made up his mind as to whether judicial review was a process he wished to pursue. The applicant was, by his own admission, aware of the Tribunal’s decision and that there was a time limit. It is open to infer that while the applicant, being equipped with that information, may have been desirous of being legally represented, in essence he elected not to pursue a judicial review application. When he ultimately did make his application to this Court, he did so unrepresented. In all of the circumstances of this case, there was no obstacle to the applicant having done so at an earlier juncture, and within time.
Additionally, the submissions of the first respondent are correct that there is no entitlement in Migration proceedings to legal representation: see AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 at [51] per Flick, Griffiths and Perry JJ and SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 at [4] per Gyles J. I accept the submission that it was the applicant’s responsibility to ascertain his review rights and the applicable time limit: see SZRIF v Minister for Immigration and Border Protection [2015] FCA 690 at [26] per Rares J and SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17 at [38] per Foster J.
As such, the applicant’s explanation for not having filed his application for review with this Court within the statutory time limit is unpersuasive, and this weighs against time being extended.
Prejudice
The first respondent does not assert any prejudice if time were extended, beyond the finality in administrative decision making, noting that the mere absence of prejudice is not a sufficient reason to grant an extension of time (citing Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 349 per Wilcox J and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths, and Perry JJ).
At hearing, the applicant was invited to say whatever he wished in respect of prejudice and he indicated that he had no submissions to make in this regard.
If time were not extended the applicant’s proceedings in respect of this visa would be at an end. In this context, submissions made by the first respondent as to futility become relevant (see [93] below). It is pertinent in assessing the prejudice to the applicant to consider what, if anything, he would be denied if closed out from the proceedings by the Court exercising the discretion not to extend time. In my view, and accepting the submissions made in respect of futility, there would be little (if not no) prejudice to the applicant even if time were not extended. As such, the question of prejudice to the parties weighs in favour of time not being extended.
Merits
As ground 1 included under the heading “Grounds of application for extension of time” has been considered as providing the applicant’s explanation for delay, it is the remaining two grounds from that part of the application, together with the four grounds of the application which will be treated as being the proposed substantive grounds which would fall for consideration if time were to be extended. The grounds will be renumbered 2 to 7, sequentially.
Ground 2
By the second ground, the applicant seeks to allege that the Tribunal overlooked, and did not consider, his submissions. When asked to speak to this ground the applicant said that by this ground he intended to convey that he had tried to explain himself at the Tribunal hearing but:
I was just given response that does not matter what I try to give the reasons or the grounds for my application, it was still going to be refused. It was still going to be denied because it – it will never going to be changed, whatever the circumstances will be – will – going to be.
…
I was trying to tell the judge at that time in the AAT that there are some other reasons and the circumstances; that I do want to get in notice; but that – she did not listen to me and she just gave me the refusal decision.[11]
[11] Transcript 28 September 2023 T10.1 to T10.5 and T 10.10 to T10.12
It emerged from the applicant’s submissions in relation to this proposed ground (and some later grounds) that the applicant felt his assertions to the Tribunal that he had changed his lifestyle and intended to improve himself in the future, were not considered.
A review of the written submissions made by the applicant’s solicitor to the Tribunal did include statements (errors in the original) that the applicant (CB 77 at [7]):
should not be considered as consistent or persistent law-breaking human being rather he is an ambitious young man to looking into bright future. He should have been given and opportunity to rectify his behaviour and reform his personality. There is no other event to substantiates that the visa holder has any inclination or trend to commit this type of behaviour.
There is nothing recorded in the Tribunal’s decision to suggest that the applicant made oral submissions to this effect at the Tribunal hearing as claimed. While not expressly referring to the written submission in this regard, the Tribunal did set out that it had considered the applicant’s circumstances as well as the matters included in PAM3. The Tribunal took into account the circumstances of the applicant’s offending, that he had been attending courses and meetings for his substance and alcohol issues (CB 106 to 107 at [11], [12] and [16]). The Tribunal also observed that there was nothing from the applicants past and present behaviour towards the Department which had been adverse (CB 107 to 108 at [18]). The Tribunal also took into account that the applicant had failed to comply with the good behaviour conditions which had been imposed on him.
I accept that the Tribunal did not make express reference to the particular part of the written submission made for the applicant that he would “reform his personality”. However, it is well established that the Tribunal is under no obligation to make specific reference to every piece of evidence before it: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] per French (as his Honour then was), Sackville and Hely JJ. That is moreso in relation to evidence it finds unpersuasive.
Promises from the applicant that he might reform were not directly relevant to the matters which the Tribunal was required to consider in reaching the decision of whether or not to cancel the applicant’s visa. Moreover, such promises were countered by the evidence to which the Tribunal did specifically advert, namely that the applicant had failed more recently to comply with good behaviour conditions. Having regard to the full facts and circumstances of the case, the reasons of the Tribunal as a whole and the additional submissions regarding futility which are set out below at [93], overall I am not satisfied that this ground has a reasonable prospect of success such that it warrants time being extended for determination on a final basis.
Grounds 3 & 4
By the third ground, the applicant advances a bare assertion that the Tribunal’s decision is affected by bias. By ground four, the applicant more specifically says that the decision of the Tribunal is affected by apprehended or actual bias. Neither ground is particularised and it is convenient to consider them together.
When asked to speak to the grounds, the applicant said that he felt the decision had not been “made by listening to my proper statements”. The applicant told the Court that:[12]
whatever I was trying to explain to her – and I was trying to make her understand that it will affect my application and my request – and she did not take that in the note…
That I would change my life and I – I will not do any times what I did before.
[12] Transcript 28 September 2023 T11.17 and T11.24
It is well established that and allegation of bias must be distinctly made and clearly proved: see Minister for Immigration and Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. In addition, a finding of actual bias would require that the Court be satisfied that the Tribunal was so committed to a conclusion already formed that the mind of the decision-maker was incapable of alteration, whatever evidence or arguments might have been presented to them: see Jia (supra) at [72].
The applicant has neither distinctly made his allegation, properly particularised as to either the manner in which it is alleged that the Tribunal exhibited actual bias, nor on what basis a fair-minded, lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question they are required to decide, being the test for apprehended bias: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ and CNY17 v Minister for Immigration & Border Protection (2019) 268 CLR 76 at [17] per Kiefel CJ and Gageler J, [56] per Nettle and Gordon JJ and [132] per Edelman J. Nor has he established either matter on the evidence.
I am not persuaded that the absence in the Tribunal’s reasons of reference to the applicant’s intentions to reform himself raise an arguable case of bias (whether actual or apprehended) that would enjoy any reasonable prospect of success. Additionally, a fair and contextual reading of the Tribunal’s decision does not reveal anything which would give rise to an arguable concern that the Tribunal brought anything but an open mind to the decision at hand.
Overall, the Court is not persuaded that either of proposed grounds 3 or 4 have a sufficient prospect of success as to warrant time being extended so that the allegation could be considered on a final basis.
Grounds 5 and 6
By each of grounds 5 and 6 the applicant contended that the Tribunal relied on irrelevant considerations and failed to take into account a relevant consideration (respectively). When asked to particularise these grounds at hearing, the applicant said:[13]
Because when I did appeal my protection visa file in the AAT and in that time, the judge from the AAT told me that, “We do not believe your application is valid because you applied the application when you get to the detention centre after three months from that – like, from the time.” And I said how that – would react – my circumstances – like, that’s going to be still the same. It doesn’t mean it – it will change that. If I would stay in detention centre for one year and then I apply for protection visa, that’s not going to change the situation. They’re still going to stay the same.
[13] Transcript 28 September 2023 at TS13.10 to 17
Meaning no disrespect to the applicant, the submissions made at hearing in relation to this ground were somewhat confusing, compounded somewhat by his interchangeable reference to “judge” for Tribunal members and the Judge in the FCCA proceedings in respect of his protection visa decision. Ultimately, the Court discerned that the applicant was referring to the renotification of the Tribunal decision in the instant matter, consequent upon the matter having been found to be affected by the decision in Parata (supra) (see [8] above). It is understandable that having been renotified of the Tribunal’s decision, the applicant may have apprehended that this was an opportunity for a different decision to have been made. It was not. Accordingly, to the extent he made submissions to the Court that he was told (presumably by the Tribunal) that he could not raise additional grounds and that the decision had already been made, in the in context of a renotification of a decision for which the Tribunal was functus officio, that position is accurate.
As the first respondent rightly observed, the Tribunal demonstrably had regard to the evidence provided by the applicant to the Department, the written submissions made by his solicitor and the applicant’s oral evidence at the hearing. That material was assessed against the factors in PAM 3 which were relevant to the issue of whether to exercise the discretion to cancel the applicant’s visa.
To the extent this is the import of grounds five and six then, on an impressionistic assessment, they do not have a sufficiently reasonable prospect of success as to warrant time being extended. There is no other discernible relevant consideration which the Tribunal failed to take into account such that time should be extended for consideration of it on a final basis. Nor does the Tribunal’s decision appear to have relied on matters irrelevant to its task.
Ground 7
By the final ground the applicant seeks to allege that the decision of the Tribunal was unreasonable. When asked to speak to this ground, the applicant clarified that he considered it unreasonable that, if the Tribunal’s decision was not going to be in his favour, it accepted the application for filing and charged him the associated filing fee of $1,500. While one might have sympathy for that assertion, it is not one which, even on an impressionistic level, has an arguable prospect of success of establishing jurisdictional error.
The applicant does not seek to make any allegation that the decision of the Tribunal was legally unreasonable. Even if he was intending to so allege, the first respondent’s submissions that the decision demonstrates an evident and intelligible justification for its conclusions, can be accepted at an impressionistic level. That is moreso given the Tribunal found that the purpose for which the visa was granted no longer existed, the visa would have ceased at the time of decision, the applicant had breached the conditions of his bridging visa, he would continue to be an unlawful non-citizen liable to continued detention and would be limited in applying for further visas onshore.
Accordingly, the final proposed substantive ground is not one which would enjoy a sufficient prospect of success as to warrant consideration at final hearing.
Summary
Overall, the Court is not persuaded that any of the grounds of review which the applicant seeks to agitate if time were to be extended, is sufficiently arguable such that it would be in the interests of the administration of justice to extend time for them to be considered to finality. Accordingly, this weighs against time being extended.
Additional issue: Futility
Even if the Court were to be persuaded that in the instant case that any (or all) of the factors warranted time being extended for consideration on a final basis of a potential jurisdictional error, the Court would refuse to extend time (or grant relief on a final basis) to the applicant, there would be no practical effect to that decision. That is because:
(a)the applicant’s visa long since ceased (having expired on 23 October 2018): see Patel v Minister for Immigration and Border Protection [2014] FCCA 2000 at [46] per Judge Lucev;
(b)there is no power to extend the duration of the visa: see Sharma v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 939 at [45] per Judge Lucev; and
(c)the three-year exclusion period from applying for a visa under PIC 4013 of the regulations would have applied from the date of the delegate’s decision and therefore would have ended on 18 September 2021: Xiong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1075 at [81] per Judge Kendall.
CONCLUSION
Where the applicant’s explanation for delay is unpersuasive, the balance as to any prejudice does not weigh in favour of the applicant and where the proposed grounds lack a reasonable prospect of success, all relevant factors in the present case weigh against time being extended.
Accordingly, it is not in the interests of the administration of justice that time be extended, and the application filed on 30 June 2023 is refused.
I will hear the parties as to costs,[14] save and except for any costs of and incidental to the adjourned hearing before the first primary Judge which was occasioned by the first respondent having transferred the applicant to Villawood from Yongah Hill, such that the hearing could not conveniently proceed on 20 September 2023. Such costs should not be the first respondent’s.
[14] Including reserved costs of the AIP (see [40] above)
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 5 October 2023
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