Elh20 v Minister for Home Affairs
[2020] FCA 1476
•13 October 2020
FEDERAL COURT OF AUSTRALIA
ELH20 v Minister for Home Affairs [2020] FCA 1476
File number: WAD 124 of 2020 Judgment of: BANKS-SMITH J Date of judgment: 13 October 2020 Catchwords: MIGRATION - application for extension of time - where refugee visa cancelled by Minister on character grounds - applicant seeks judicial review of Minister's decision - where applicant charged with murder - meaning of substantial criminal record in s 501(7) of Migration Act 1958 (Cth) - application of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) - where Supreme Court of Western Australia found applicant not fit to stand trial as mental impairment meant he could not defend the charge - where indictment quashed and custody order made - where applicant held in secure mental facility - whether a court has found applicant has committed offence - whether any reasonable prospect of success on application for review - extension of time granted Legislation: Criminal Law (Mentally Impaired Accused) Act 1996 (WA) ss 18, 19
Migration Act 1958 (Cth) s 501
Cases cited: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
[redacted]
[redacted]
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 45 Date of hearing: 13 October 2020 Counsel for the Applicant: Mr G McIntyre SC Solicitor for the Applicant: Legal Aid (WA) Counsel for the Respondent: Mr PR Macliver Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
WAD 124 of 2020 BETWEEN: ELH20
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
ORDER MADE BY:
BANKS-SMITH J
DATE OF ORDER:
13 OCTOBER 2020
THE COURT ORDERS THAT:
1.The applicant be assigned the pseudonym of ELH20.
2.The date, name and citation of the judgments of the Supreme Court of Western Australia relating to the applicant be redacted from the published version of this judgment.
3.Documents in the proceeding which display the applicant's name are confidential for the purposes of r 2.32 of the Federal Court Rules 2011 (Cth).
4.Ms Audrey Russell be appointed as litigation representative for the applicant.
5.Ms Russell's appointment as litigation representative for the applicant take effect nunc pro tunc on and from the filling of the application for an extension of time on 15 May 2020.
6.The time for filing an application for judicial review on the basis of the ground set out in the application and supporting affidavit filed 15 May 2020 be extended to 20 October 2020.
7.Costs of the application for an extension of time be reserved.
8.The application be adjourned to a case management hearing on a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BANKS-SMITH J:
The applicant seeks an extension of time to review the decision of the Minister for Home Affairs to cancel his Class XB Subclass 200 Refugee visa under s 501(2) of the Migration Act 1958 (Cth). The Minister cancelled the applicant's visa on the basis that he was not satisfied that the applicant passed the character test as defined in s 501(6)(a) due to his substantial criminal record.
The applicant is held in the custody of the State of Western Australia in a secure mental health facility. In [date redacted] the Supreme Court of Western Australia found that he was not mentally fit to stand trial on a charge of murder. In [date redacted] an indictment for murder was quashed and the Court ordered that the applicant be detained in an authorised hospital as determined by the Mentally Impaired Accused Review Board (Board) until released by an order of the Governor.
This application raises a substantive issue regarding the construction of s 501(7)(f) of the Migration Act and how it is to be understood when read with s 19(4) and s 19(5) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (CL(MIA) Act). At its core the issue is the relevance of the absence of a finding by the Supreme Court that the applicant is guilty of murder.
The applicant has been allocated a pseudonym in these proceedings, but that was not the case in the Supreme Court. Accordingly it is necessary to avoid identifying the relevant Supreme Court judgments, to redact certain identifying features and to use gender neutral terminology in respect of the Supreme Court judge.
Statutory context
The Minister cancelled the applicant's visa under s 501(2) of the Migration Act, which provides:
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.
Section 501(6) sets out the circumstances where a person does not pass the character test. Relevantly, a person does not pass the character test if they have a substantial criminal record as defined by s 501(7). Section 501(7) provides:
For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
Section 18 of the CL(MIA) Act provides:
Application
This division applies if an accused before the Supreme Court or the District Court is found to be not mentally fit to stand trial.
Section 19 of the CL(MIA) Act relevantly provides:
Procedure
(1) If the judge who decides that the accused is not mentally fit to stand trial -
(a)is satisfied that the accused will not become mentally fit to stand trial within 6 months after the finding that the accused is not mentally fit, the judge must make an order under subsection (4); or
(b)is not so satisfied, the judge must adjourn the proceedings in order to see whether the accused will become mentally fit to stand trial.
…
(3)If proceedings are adjourned under subsection (1)(b), a judge must make an order under subsection (4) -
(a)if at any time the judge is satisfied that the accused will not become mentally fit to stand trial within 6 months after the finding that the accused is not mentally fit; or
(b)if at the end of 6 months after the finding that the accused is not mentally fit to stand trial the accused has not become mentally fit.
(4)An order under this subsection is an order quashing the indictment or, if there is no indictment, dismissing the charge and quashing the committal, without deciding the guilt or otherwise of the accused and either -
(a)releasing the accused; or
(b)subject to subsection (5), making a custody order in respect of the accused.
(5)A custody order must not be made in respect of an accused unless the statutory penalty for the alleged offence is or includes imprisonment and the judge is satisfied that a custody order is appropriate having regard to -
(a)the strength of the evidence against the accused;
(b)the nature of the alleged offence and the alleged circumstances of its commission;
(c)the accused's character, antecedents, age, health and mental condition; and
(d)the public interest.
…
(7)If an order is made under subsection (4), the accused may be indicted or again indicted and tried for the offence.
As is readily apparent from the text of s 19(4) and s 19(5) of the CL(MIA) Act, the judge is not to determine guilt if, as in the case of the applicant, a custody order is made. The judge is, however, required to have regard to the strength of the evidence against the accused.
Before turning to the respective principles and submissions, it is appropriate to provide some further background about the applicant's circumstances and the chronology leading to the Minister's decision.
Background
There is no doubt that the applicant's circumstances are sad. The Minister records his nationality as Ethiopian. The Western Australian Department of Justice records his nationality as Sudanese. His date of birth is unknown but he has been allocated a birth date. He has never known his father and his mother died when he was around 7 or 8 years old. He has no siblings or other family. He was taken in by a family when his mother died: his mother had been employed by the family.
The applicant came to Australia with the family on 28 July 2004. He no longer has any contact with the members of the family but apparently they have become Australian citizens.
Since his arrival he has been convicted of various offences, although he has been sentenced to imprisonment on only one prior occasion, following a conviction for aggravated unlawful assault. He was sentenced to 10 months' imprisonment in 2010 for that offence.
In [date redacted] the applicant was charged with murder. The charge arose from an incident where the applicant was alleged to have stabbed the victim multiple times with a knife. The deceased was unknown to him. The applicant was arrested and was interviewed by police.
It became apparent that the applicant may have been suffering from a mental impairment potentially affecting his mental fitness to stand trial for the charge of murder.
On [date redacted] in the Supreme Court of Western Australia, it was found that the applicant was not fit to stand trial within the meaning of the CL(MIA) Act: [citation redacted]. Their Honour was satisfied that the applicant suffered from a mental impairment, a major psychotic disorder, which at the time would mean he could not properly defend the charge. Their Honour found that the applicant's impairment impeded his ability to understand and instruct counsel on a possible defence of unsoundness of mind under s 27 of the Criminal Code 1913 (WA).
On [date redacted] the Supreme Court again considered whether the applicant would be fit to stand trial: [citation redacted]. Their Honour was satisfied that the applicant would not become mentally fit to stand trial within six months of the previous finding. As required by the terms of s 19(4) of the CL(MIA) Act, the Supreme Court quashed the indictment without deciding the guilt or otherwise of the applicant. Their Honour also made a custody order under s 19(5) of the CL(MIA) Act.
The applicant is currently held indefinitely in custody at the secure mental health facility pursuant to the custody order.
On 12 July 2019 the applicant's representative received a letter which indicated that the applicant's visa was being considered for possible cancellation under s 501(2) of the Migration Act.
On 24 February 2020 the Minister was provided with a submission from within the Department relating to the cancellation of the applicant's visa under s 501(2). The Minister made the decision to cancel the applicant's visa under s 501(2) on the same day. The applicant now seeks the review of that decision by this Court, but must obtain an extension of time to do so.
Principles governing extension of time
Relevant considerations in assessing whether an extension of time for the filing of an application should be granted include the length of the delay, any explanation for the delay, any prejudice to the respondent and whether the application for review would have any prospect of success if the extension were granted: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348‑349; and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].
Ordinarily, caution is required in assessing the merits of an application at an interlocutory stage of the proceeding, and in determining what significance or weight to give to the resulting conclusion: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [7]‑[9] (Brennan CJ and McHugh J), [66] (Kirby J); and MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]‑[63] (Mortimer J). The applicant's proposed grounds should be considered on their face and examined at a 'reasonably impressionistic level'. If it appears from such an examination that the proposed review application has no realistic prospect of success, it would not ordinarily be in the interests of justice to grant an extension of time.
Consideration
The applicant's application was filed 43 days out of time.
As to the explanation for delay, Ms Gorski, a lawyer at Legal Aid WA who provides legal advice and support to the applicant in relation to reviews of his custody orders and now represents him in this proceeding, has deposed to the difficulty in obtaining information from the applicant. That is due to his mental illness, the requirement of an interpreter and the fact that he is in custody at the mental facility. It was necessary to seek the appointment of a guardian by the State Administrative Tribunal. That was done shortly before the Minister's decision was made. However, Ms Gorski remained involved as the applicant's legal representative following the guardian's appointment, and sought further assistance to see if the applicant had legal options available to him regarding the Minister's decision, as at the time she did not have experience in migration law.
The Minister opposes the grant of an extension, noting that the applicant has legal representation and that Ms Gorski does not specify the dates upon which she was able to secure assistance for the applicant. The Minister accepts that he would suffer no prejudice if the extension of time were granted.
These are unusual circumstances. It is apparent that Ms Gorski's task in seeking to obtain instructions and act in the applicant's interests has been more difficult than that faced by many lawyers. Ms Gorski freely admits that at the time of the Minister's decision she was not familiar with migration law. Whilst that may ordinarily be a matter to be accorded little if no weight, having regard to the applicant's custody order and mental impairment, I consider some weight should be given to those circumstances and the difficulties that Ms Gorski has faced in attempting to assist him. I accept the explanation for the delay.
However, I also accept that the most significant question in this case is the prospect of success in the judicial review application if an extension were to be granted.
The proposed ground of review is that the Minister misdirected himself in law in his assessment of whether he was satisfied as to the character test, because the Minister concluded that the applicant committed murder, when the Minister, if he had correctly directed himself in law, ought to have found that the applicant did not have a substantial criminal record because the Supreme Court found him not fit to plead to the murder charge and made no finding that the applicant committed the offence.
It is necessary to address briefly the Minister's reasons.
The Minister's reasons
The Minister recorded that he reasonably suspected that the applicant did not pass the character test on the basis that the applicant had a substantial criminal record as defined in s 501(6)(a) and s 501(7)(f). The Minister addressed the character test in three paragraphs, stating:
[5]The character test is defined by s501(6) of the Act. The relevant ground of the character test in this case is s501(6)(a): the non-citizen has a substantial criminal record, as defined by s501(7)(f) of the Act.
[6]On [date redacted] Mr [ELH20] was charged with murder. On [date redacted] the Supreme Court of Western Australia found that Mr [ELH20] was unfit to stand trial, quashed the indictment and made a custody order in the public interest.
[7]As a result of the above outcome, Mr [ELH20] has a substantial criminal record. I reasonably suspect that he does not pass the character test by virtue of s501(6)(a) of the Act with reference to s501(7)(f) of the Act and that he has not satisfied me that he passes the character test. I therefore find that Mr [ELH20] does not pass the character test.
The Minister then assessed whether he should exercise his discretion to cancel the applicant's visa. For this purpose the Minister described the nature of the applicant's criminal conduct, primarily referencing the reasons of the Supreme Court as to whether the applicant was fit to stand trial (described incorrectly by the Minister at [12], [14], [19] and [28] of the reasons as the 'sentencing remarks'). The Minister noted that the Supreme Court described the case against the applicant as 'strong' with 'the applicant having admitted to the crime of murder'.
The Minister also described the Board's most recent review at that time which determined that the applicant had not made any meaningful progress. The Minister then said:
[19]I am aware that Mr [ELH20] has not been found guilty of murder or assault occasioning bodily harm and has not been convicted or sentenced, however given comments by [the Supreme Court judge] on [date redacted], in which he assesses the case against Mr [ELH20] to be 'strong', supported by the significant volume and veracity of the evidence against Mr [ELH20], I am satisfied, for the purposes of this decision, that Mr [ELH20] did in fact commit murder, as described in the sentencing remarks dated [date redacted].
[20]I note [the Supreme Court judge] described the alleged circumstances of the murder offence as 'horrific' and highlights that murder is 'the most serious offence in our criminal law. It carries a maximum penalty of life imprisonment'. I find that Mr [ELH20's] offence of murder is very serious.
The Minister then assessed other relevant factors before concluding that the applicant represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighs any countervailing considerations. The Minister exercised his discretion to cancel the applicant's visa.
Prospects of success
Considered at a reasonably impressionistic level, there are real questions as to the Minister's reliance on s 501(7)(f).
On its face, s 501(7)(f) does not introduce a test of whether the Minister is satisfied that a person has committed the offence. Arguably the reasons at [19] read as if the Minister considered that may be the test.
Rather, whether a person has a substantial criminal record depends relevantly upon whether the Court has found that the person has committed the offence. On its face, the Supreme Court did not make a finding that the applicant committed the offence of murder. Their Honour quashed the indictment 'without deciding the guilt or otherwise of the accused' as required by s 19(4) of the CL(MIA) Act.
On first impressions there is at least a reasonable argument that the Minister misdirected himself on the terms of the respective statutes. Without limiting the arguments that might arise, there are four issues that arise readily from the reasons and submissions.
First, there is no assessment in the Minister's reasons relating to s 501(7)(f)(ii) as to whether the Supreme Court found that the applicant committed the offence of murder.
Second, although the applicant was found by the Court not to be fit to plead and is detained in a facility under a custody order, the Supreme Court judge did not make any finding on the evidence available that the applicant in fact committed the offence. The Supreme Court judge expressly referred to s 19(4) and stated that they were required to quash the indictment without deciding the guilt or otherwise of the accused: [citation redacted].
The Supreme Court judge did comment, however, on the strength of the case against the applicant, highlighting that there was CCTV footage; strong DNA and circumstantial evidence; admissions by the applicant; and some evidence as to injuries that indicated an intention to kill. However, their Honour referred to the possibility of an insanity defence, noting that issue was yet to be explored.
There are other comments in the Supreme Court judge's reasons relating to the strength of the evidence against the applicant. However, their Honour made those comments in the context of the considerations that must be addressed in determining whether a custodial order was necessary under s 19(5).
Third, despite the Minister's submission to the contrary, it is not necessarily apparent in their Honour's reasons that they 'implicitly' found that the applicant committed the offence as charged. To imply such a finding is arguably inconsistent with the task that their Honour expressly undertook for the purpose of s 19(4) of the CL(MIA) Act, a task which requires the indictment to be quashed 'without deciding the guilt or otherwise of the accused'. It appears that the Minister seeks to distinguish between a finding of the commission of an offence and a finding of guilt. That submission in turn requires some careful assessment of any relevant difference between commission of an act and commission of an offence and directs attention to the manner in which s 27 (insanity) of the Criminal Code (WA) may operate in the context of a murder charge (s 279). I note that the Supreme Court judge considered the possible defence of unsoundness of mind to be a live issue: [citations redacted].
Fourth, the Minister submits that s 501(7) is concerned only with the physical acts that comprise aspects of an offence and may be satisfied regardless of the potential of any defence or the operation of any statutory provision that might affect whether any mental element (such as intention) of an offence is required or established, and regardless of whether criminal responsibility is established. Whether such a submission might be accepted requires analysis of the purpose of s 501 and whether s 501(7) is to be understood in that manner.
These questions require careful consideration in the context of the CL(MIA) Act, noting also that the text of the CL(MIA) Act differs from legislation in other states that relates to persons affected by mental disorders. It would appear that whether the jurisdictional fact encompassed by s 501(7)(f)(ii) is met where orders are made under the CL(MIA) Act has not as yet been the subject of any authority. It is not appropriate to decide on an application for an extension of time, where there is an acceptable explanation as to delay, these questions of construction. The manner in which the provisions are to be understood may well have broader application.
For those reasons, I consider that the proposed ground of review has some reasonable prospect of success. Notwithstanding the period of time that has lapsed, I consider it is in the interests of justice that the applicant be granted an extension of time to file an application for judicial review, and there will be orders accordingly.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith. Associate:
Dated: 13 October 2020
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