EKE18 v Minister for Home Affairs
[2019] FCCA 115
•23 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EKE18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 115 |
| Catchwords: MIGRATION – Cancellation of protection visas – review of decision of delegate of the Minister for Immigration – application for extension of time – prejudice to Minister – whether the issue of s.107 Notice was bona fide exercise of power – whether there was reasonable prospects of success – no reasonable explanation for delay – costs – no jurisdictional error – application for an extension of time dismissed. |
| Legislation: Constitution, s.75(v) |
| Cases cited: BZABK v Minister for Immigration & Citizenship [2012] FCA 774 EXU17 v Minister for Immigration & Border Protection [2018] FCA 1675 Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWCA 276 MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 SZFDZ v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 482 |
| First Applicant: | EKE18 |
| Second Applicant: | EKF18 |
| Third Applicant: | EKG18 |
| Fourth Applicant: | EKH18 |
| Fifth Applicant: | EKI18 |
| Sixth Applicant: | EKJ18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | VISA CANCELLATIONS OFFICER POSITION 60029772 |
| File Number: | SYG 2155 of 2018 |
| Judgment of: | Judge Smith |
| Hearing date: | 8 November 2018 |
| Date of Last Submission: | 10 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 January 2019 |
REPRESENTATION
| Solicitors for the Applicants: | Mr D Taylor, Sydney West Legal and Migration |
| Counsel for the First Respondent: | Mr S Lloyd SC and Ms R Graycar |
| Solicitors for the Respondents: | Minter Ellison Lawyers |
ORDERS
The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is refused.
The Minister has leave to approach the Court within 14 days to have the matter relisted for hearing on the question of whether an order ought to be made against the applicants’ solicitor, Mr Daniel Taylor, under s.486F of the Migration Act 1958 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2155 of 2018
| EKE18 |
First Applicant
EKF18
Second Applicant
EKG18
Third Applicant
EKH18
Fourth Applicant
EKI18
Fifth Applicant
EKJ18
Sixth Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| VISA CANCELLATIONS OFFICER POSITION 60029772 |
Second Respondent
REASONS FOR JUDGMENT
The applicants are husband and wife. On 8 April 2010 they were granted protection visas on the basis that they feared persecution in Burma as stateless Rohingya. On 11 March 2016 they were granted Resident Return visas.
By letter dated 15 December 2017 a delegate of the first respondent gave the applicants notice under s.107 of the Migration Act 1958 (Cth) of an intention to consider cancelling their Resident Return visas. The letter explained that there was information that might support the conclusion that, in breach of s.101 of the Act, the applicants had failed to provide correct information in connection with their protection visa applications. That information was to the effect that, contrary to what was said in those applications, the applicants’ Bangladeshi passports were genuine. If that information were true, the applicants would not have been stateless as claimed in the protection visa applications.
Once a notice is given to a non-citizen under s.107, and the Minister or a delegate has considered any response to it and determines that there was a contravention of the Act in the manner specified in the notice, there arises a power to cancel the non-citizen’s visa: s.109.
On 23 July 2018 the applicants applied to this Court in its original jurisdiction under s.476 of the Act for relief in relation to the notices. At the same time an application was made for an order under s.477(2) of the Act extending the time for making the application.
A number of complex issues arise on the application. These include whether the Court has any jurisdiction in respect of a notice issued, or purportedly issued, under s.107 of the Act. I need only deal briefly with some of those issues because the matter must be dismissed as the grounds relied on are manifestly hopeless.
I will deal first with the merits and then return to the other issues.
In their written submission, the applicant framed the central issue as whether “conduct prior to the issuing of a s.107 Notice which involves a potential breach of s.336E of the Migration Act 1958 through release of personal details of refugees to their country of origin, would be conduct protected from review by the Federal Circuit Court through s.476” of the Act.
In the amended application, it was contended that the s.107 Notice was not a bona fide exercise of power, was an abuse of process or affected by bias because the Minister (through officers exercising delegated authority or powers under the control and direction of the Minister):
... in making a request to the Department of Foreign Affairs and Trade to contact the Myanmar authorities to conduct an investigation into the identities of the 1st and 2nd Applicants, sought to make a prohibited disclosure of identifying information to the Myanmar authorities, which was prohibited by s.336E of the Migration Act 1958.
This contention was ultimately withdrawn at the hearing because the applicants’ solicitor accepted that there was no evidence at all to support the conclusion that there had been any contact with the Myanmar authorities in any connection with the applicants or any disclosure of any information concerning the applicants. Indeed, the evidence firmly establishes that there had been no such contact or disclosure: see Exhibit A, vol.3, pp.656-662.
The applicants also contended that the notice was not issued bona fide, was an abuse of process and biased for a number of reasons as set out in grounds 4 to 7 of the amended application. Essentially, those grounds contend that the notice contained a number of assertions that were, to the knowledge of the delegate, incorrect.
The principles concerning bad faith in administrative decision making were summarised by the Full Court of the Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749:
[43]First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial …
[44]The fifth proposition is that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review …
[45]Sixth, mere error or irrationality does not of itself demonstrate lack of good faith … Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism …
[46]Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness …
[47]Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task ...
See also Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWCA 276 at [16] – [29] (Basten JA).
The applicants could not point to any evidence that suggested any knowledge of the delegate that there were any errors in the notice (assuming for present purposes that there were any errors). The applicants could not even establish any likelihood on the evidence that there was capriciousness, any ulterior motive, bias, ill-will or anything else in the conduct of the delegate that might suggest that he or she had not prepared the notice in good faith. There was no more than an assertion that there were errors and, without more, that this meant that there was bad faith. That assertion is, on the authorities, insufficient to give rise to any prospect of success.
In any event, the applicants appear to have overlooked the fact that the purpose of the notice was to give the applicants the opportunity to respond to the contentions in it and the possibility that those contentions might lead to the cancellation of their visas. It was a matter for them to correct any errors in the notice. Indeed, that is what they did, although they did not convince the delegate that there were errors and the visas were cancelled on 21 September 2018. The applicants had a further opportunity to correct any errors by applying to the Administrative Appeals Tribunal for review of the cancellation decision. They have taken that opportunity although the Tribunal has not yet made its decision. I will return to the consequence of the application to the Tribunal later in these reasons.
On any view then, this application cannot succeed. It remains to consider briefly a number of other issues that arise.
The application was, as I have said, brought in the Court’s original jurisdiction under s.476 of the Act. That section provides that, subject to some exceptions, the Court has the same jurisdiction as the High Court has under s.75(v) of the Constitution in respect of migration decisions. Any application for orders in the Court’s original jurisdiction under s.476 must be made within 35 days of the date of the migration decision: s.477(1).
The migration decision is said to be the s.107 Notices. Those notices were dated 15 December 2017. The application was not made until 23 July 2018 that is, outside the 35 day period. However, the Court has the power to make an order extending that period if two criteria are met: first, that an application is made in writing for such an order and, secondly, that the Court considers that it is necessary in the interests of the administration of justice to make the order. The first of those criteria is satisfied.
In determining whether the second criterion is met the Court will usually consider the length of and reasons for delay, the merits of the substantive application, any prejudice to the other parties and any other relevant matter.
Although it is possible to hear both an application for an extension of time and the substantive matter at the same time, this matter was set down for hearing only on the question of an extension of time.
At the hearing I raised with the parties the question whether it was necessary for the Court to determine, in the first place, whether it had jurisdiction in respect of the matter at all. In particular, the question was whether I should determine before anything else, whether the s.107 Notices were migration decisions. In Plaintiff S164/2018 v Minister for Home Affairs (2018) 361 ALR 8 Edelman J had referred to the “first duty” or ‘threshold’ consideration” of any Court, in approaching a cause before it, ... to consider its jurisdiction”[1]. The parties were invited to make submissions about this question as well as on the question of jurisdiction itself. Both parties filed written submissions. The applicants’ written submissions addressed issues outside the scope of the leave granted and I have ignored them to that extent: Carr v Finance Corporation of Australia Ltd (No.1) (1981) 147 CLR 246.
[1] See also Commissioner of Taxation v Tomaras [2018] HCA 62 at [132] (Edelman J); Federated Engine Drivers’ & Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398 at 415; Khatri v Price (1999) 95 FCR 287 at [14]; Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174 at 183 [32].
Ultimately, I accept the Minister’s submission that, given the nature of the application and the prospects of success, I need not come to any firm view about the jurisdiction of the Court. Essentially that is because regardless of whether there is jurisdiction or not, the application must be dismissed because there are not arguable grounds. Before I explain that in more detail I must briefly address one contention made by the Minister that may be controversial.
The contention is that the time limit imposed by s.477(1) imposes a constraint on the jurisdiction of the Court and that, if an order is not made extending that time limit, the Court has no jurisdiction. There is authority in the Federal Court to support that contention: SZICV v Minister for Immigration & Citizenship (2007) 158 FCR 260 at [45] – [47]; BZABK v Minister for Immigration & Citizenship [2012] FCA 774. However, more recently in Wei v Minister for Immigration & Border Protection (2015) 257 CLR 22 Gageler and Keane JJ explained the effect of s.486A (which is in relevantly identical terms to s.477) as follows:
[42]Section 486A does not prevent the making of an application under s 75(v) of the Constitution. The application is made by filing an application for an order to show cause in accordance with the High Court Rules. Section 486A operates rather to regulate the procedure applicable to the exercise of the jurisdiction that has been invoked by the making of such an application where the application has not been made within 35 days of the date of the decision which the plaintiff seeks to challenge. It does so by making the grant of the relief sought in the application conditional on an order extending the period for the making of the application. …
That explanation appears to be inconsistent with the earlier decisions of the Federal Court. The parties did not refer to this passage in their submissions and I have found no consideration of it in any decision of the Federal Court. In those circumstances, even though the passage concerns relevantly identical statutory provisions, I will follow the decisions of the Federal Court.
The result is that I need only decide the question posed by the second criterion in s.477(2) of the Act. As submitted by the Minister, that question does involve some, albeit impressionistic high level[2], consideration of whether the s.107 Notices might be migration decisions. As I have also observed, it also involves consideration of the delay in bringing the application, the prospects of success, prejudice to the Minister and any other relevant matter.
[2] EXU17 v Minister for Immigration & Border Protection [2018] FCA 1675; MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585.
At an impressionistic level, I would accept that the s.107 Notices might constitute migration decisions. A migration decision includes a privative clause decision and purported privative clause decision: s.5. A privative clause decision is relevantly a decision of an administrative character made under the Act: s.474(2). The concept of decision is given a broad scope by s.474(3) and includes doing any act or thing (sub-s.474(3)(g)) and conduct preparatory to the making of a decision: sub-s.474(3)(h). Given the breadth of the matters that might constitute a decision, then, although there are arguments that might go the other way, it is at least arguable that the preparation and delivery of a notice under s.107 of the Act is a decision. There is no issue that it is administrative in character and done, or purported to be done, under the Act and so would then be a privative clause decision and thus a migration decision.
The delay in the matter is in excess of 6 months and is significant. The applicants’ explanation for the delay was, essentially, that they and their solicitor were busy undertaking work in order to respond to the s.107 Notices and that they could not afford to pay their solicitor to do both that and also to commence these proceedings. That is not a reasonable explanation. In effect, the applicants were taking the ordinary and most rational course available to them in the way envisaged by the Act: addressing the s.107 Notices in order to avoid cancellation of their visas. It appears to me that they took that path on advice and only later decided to hedge their bets and to bring these proceedings as a safety mechanism in case the visas were cancelled.
There is no relevant prejudice to the Minister.
In addition to the prospects of success of the grounds already discussed, there are discretionary considerations that affect the question of whether an extension of time should be granted. They are that the applicants have applied to the Tribunal for review of the cancellation decisions. The applicants have the opportunity of having the cancellation decisions set aside on bases that might include the validity of the s.107 Notices. On the other hand, if the Tribunal affirms the cancellation decisions, the applicants will have the right to apply to the Court for review of that decision. Any such review could then include a ground attacking the validity of the s.107 Notices.
The avenue of merits review (and subsequent judicial review) weighs heavily against the grant of any discretionary relief and tends against the conclusion that it is necessary in the interests of the administration of justice for there to be an extension of time. One reason for that is that the applicants will not suffer any appreciable harm by not having judicial review available to them now because they have, and indeed have availed themselves of another equally beneficial avenue to protect their rights.
There is, in my view, no good reason to conclude that an extension of time should be granted. I am not satisfied that it is necessary in the administration of justice to make an order extending the period for making an application to the Court in its original jurisdiction in s.476 of the Act. Accordingly, the application for an extension of time must be refused.
Costs
The Minister seeks an order under s.486F of the Act. That provision is enlivened if s.486E is contravened. Section 486E provides:
Obligation where there is no reasonable prospect of success
(1)A person must not encourage another person (the litigant) to commence or continue migration litigation in a court if:
(a)the migration litigation has no reasonable prospect of success; and
(b)either:
(i) the person does not give proper consideration to the prospects of success of the migration litigation; or
(ii) a purpose in commencing or continuing the migration litigation is unrelated to the objectives which the court process is designed to achieve.
(2)For the purposes of this section, migration litigation need not be:
(a)hopeless; or
(b)bound to fail;
for it to have no reasonable prospect of success.
(3)This section applies despite any obligation that the person may have to act in accordance with the instructions or wishes of the litigant.
(Emphasis in original)
The Minister submitted that the applicant’s solicitor contravened that provision for the following reasons:
a)first, for the purposes of the chapeau in s.486E(1), it can be readily inferred that Mr Taylor has ‘encouraged’ the applicants to commence or continue migration litigation, noting that he prepared and signed the originating application and the proposed amended application to the Court, both of which included a certification made by Mr Taylor pursuant to s.486I of the Act (cf. SZFDZ v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 482 at [21] per Moore J), and Mr Taylor prepared and witnessed each of the first applicant’s affidavits filed with the Court, including the first applicant’s affidavit of 29 September 2018;
b)secondly, for the purposes of sub-s.486E(1)(a) of the Act, the migration litigation in question (being the present application) has no reasonable prospect of success (or any prospect of success);
c)thirdly, for the purposes of sub-s.486E(1)(b)(i), it can be inferred that Mr Taylor has not, at any time, given proper consideration as to the prospects of success of the migration litigation. The word ‘proper’ invites consideration of whether, in the circumstances, there was a balanced and thoughtful assessment of the prospects of success, such assessment being directed to whether, objectively, the litigant had prospects of success (cf. SZFDZ at [25]). In many cases, a conclusion that the litigation in question has no reasonable prospect may be enough to allow an inference to be drawn that no proper consideration was given as to prospects (cf. SZTMH v Minister for Immigration & Border Protection (2015) 230 FCR 550 at [65] per Rangiah J). The first respondent submits that this is such a case. Mr Taylor is a qualified legal practitioner, who regularly appears before this Court in proceedings seeking judicial review of decisions made under the Act. The present proceeding is now futile in circumstances where the NOICCs[3] the subject of this proceeding have been superseded by decisions under s.109 of the Act to cancel the first and second applicants’ visas. A solicitor practising in migration law ought to be aware of this issue of futility, and the well settled legal position that the Federal Circuit Court does not have jurisdiction to conduct judicial review of primary decisions reviewable by the Tribunal under pt.7 of the Act, or at the very least ought to have become aware of it if ‘proper consideration’ had been given to the prospects of success of the litigation in this case. The information before the Court indicates that, on an objective assessment, no such proper consideration has been given by Mr Taylor.
[3] Notifications of Intention to Consider Cancellation under s.109 of the Act.
Most of those submissions have some force. However, the Court must not make an order under s.486F unless the person against whom it is sought has been given a reasonable opportunity to argue why the order should not be made. I am not persuaded that Mr Taylor has had such an opportunity. Although he must have been aware of the Minister’s intention to seek an order (given that the submissions of the Minister were sent to him prior to the hearing) he appeared in his capacity as solicitor for the applicants. This placed him in a position of conflict during the hearing and he could not reasonably have addressed the issue of an order under s.486F at that time.
Ordinarily, a legal practitioner, like any party, against whom a costs order is sought has the right to be separately represented. Mr Taylor was not separately represented and did not, as I have observed, appear for himself.
I will grant leave to the Minister to have the question of an order under s.486F heard at a later time.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 23 January 2019
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