Gates v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 139
•14 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gates v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 139
File number(s): MLG 3816 of 2020 Judgment of: JUDGE A KELLY Date of judgment: 14 October 2021 Catchwords: MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – mandatory cancellation of visa – extension of time – applicant had substantial criminal record – Minister cancelled visa while applicant imprisoned in a psychiatric facility – where Minister purported to notify applicant of cancellation – where applicant complains that notice given did not contain sufficient information to determine date by which representations made – whether notice of cancellation decision inviting applicant to make representations did not correctly fix the period within which representation were required – where grounds for extension of time to be considered at impressionistic level – applicable principles – extension of time granted – substantive application granted – declaration – writ of mandamus. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s 44
Migration Act 1958 (Cth), ss 477, 501, 501CA
Migration Regulations 1994 (Cth), reg 2.52Cases cited: BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176
BLD15 v Minister for Immigration and Border Protection [2017] FCA 72
EPL20 v Minister for Immigration [2021] FCAFC 173
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681
Megase v Minister for Immigration (2018) 342 FLR 128
Minister for Immigration and Border Protection v EFX17 (2021) 388 ALR 351
Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470
Reinhart v Welker (2012) 83 NSWLR 347
Sillars v Minister for Immigration [2021] FCAFC 174Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of hearing: 12 October 2021 Place: Melbourne Solicitor for the Applicant: Victoria Legal Aid Counsel for the Applicant: Mr A. White Solicitor for the Respondent: Sparke Helmore Counsel for the Respondent: Mr G. Johnston ORDERS
MLG 3816 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HEREWINI KASSIDY WIRIHANA GATES
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
14 OCTOBER 2021
THE COURT ORDERS AND DECLARES THAT:
1.Pursuant to ss 202-203 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), direct that the parties be allowed to appear and to make submissions before the court by video and audio link.
2.The applicant have leave, now for then, to file and serve the Further Amended Application dated 1 October 2021.
3.Pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act), order the period within which an application may be made to this court for relief under s 476 of the Act be extended, now for then, to 28 October 2020.
4.The Further Amended Application dated 1 October 2021 be allowed.
5.Declare that the first respondent has not performed a duty required by s 501CA(3) of the Act in that a notice purportedly given in relation to a decision made on 20 August 2019 to cancel the applicant’s visa under s 501(3A) of the Act did not comply with the requirements of reg 2.52(2)(b) of the Migration Regulations 1994 (Cth).
6.An order in the nature of a writ of mandamus issue requiring the first respondent to perform the duties required by s 501CA(3) of the Act by giving proper notice to the applicant in relation to the said decision made on 20 August 2019.
7.The first respondent pay the costs of the applicant fixed in the sum of $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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
KELLY J
Introduction
By Further Amended Application dated 1 October 2021, the applicant seeks declaratory and other relief in the nature of mandamus to compel the first respondent (Minister) to exercise a duty which it is said he had failed to exercise in not giving a valid notice and invitation to him pursuant to s 501CA(3) of the Migration Act 1958 (Act) following the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (visa).
For the reasons which follow, the applicant is entitled to the relief sought, including an extension of time pursuant to s 477 of the Act within which to seek judicial review. By way of overview, the substantive application now turns upon the application of the principles recently decided in two appeals to the Full Court of the Federal Court of Australia: EPL20 v Minister for Immigration [2021] FCAFC 173 and Sillars v Minister for Immigration [2021] FCAFC 174. In each of those appeals, judgment was given on 27 September 2021.
Having regard to the reasoning in those appeals, I am bound to hold that the form of notice given in this application (which is identical to that given in EPL20), was contrary to s 501CA(3) of the Act read with reg 2.52(2)(b) of the Migration Regulations 1994 (Cth), defective in that it informed the applicant, in imperative terms, that he must lodge any representations about the mandatory revocation of his visa within 28 days of being notified that he could do so.
Although the applicant had allowed some latitude to the Minister in agreeing that the hearing of the application for judicial review be vacated until the determination of those appeals, now that the Full Court has granted relief in each appeal, he seeks the determination of his application despite the Minister having foreshadowed that consideration is presently being given to an application for special leave to appeal from the orders in EPL20 and Sillars. In the circumstances of this case it was appropriate to proceed with the application for review.
Background
The background is essentially common ground and is taken from the parties’ submissions. The applicant, a citizen of New Zealand now aged 22 years, first came to Australia in 2007, aged nine years, in the company of his mother, and is now in immigration detention. Upon arrival in Australia he was granted a Special Category (Class TY) (Temporary) visa.
When aged 18 years, the applicant was diagnosed with paranoid schizophrenia.
The applicant has a substantial criminal record within the meaning of s 501(7)(c) of the Act. On 28 May 2019, a delegate of the Minister cancelled his visa pursuant to s 501(3A). On 20 August 2019, at a time when the applicant was imprisoned in a psychiatric unit, the Minister purported to notify him by email of the mandatory cancellation of his visa (Notice). Attached to the email was a series of no less than 13 documents collectively described as a ‘Cancellation Package’. Later, on 27 August 2019, a corrections officer handed a copy of the Cancellation Package to the applicant, doing so at a time when he was also receiving psychiatric treatment at the centre where he was being imprisoned. It appears the applicant refused to sign a receipt for the Cancellation Package or Notice and, as a consequence, further copies of those documents were transmitted to him by email on that date.
In February 2020, the applicant was released from criminal custody and immediately transferred to immigration detention where he remains. While in detention, the applicant requested and was supplied a further copy of the Notice issued on 20 August 2019. Later, on 6 August 2020, the applicant’s lawyer requested the Department to re-notify him of the cancellation of the visa. This has not occurred. Whatever criticism may have been directed at the Department for not having re-notified the applicant of the cancellation decision, I agree there was no utility in doing so at that time: BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176, [35] (Stewart J); (aff’d) [2021] FCAFC 91, [56], [80], [89] (Rares, Banks-Smith and Jackson JJ).
On 27 December 2020, certain representations were filed on behalf of the applicant.
The applicant now complains the Notice purportedly given under s 5013A) was defective such that the Minister has not discharged the obligation under s 501CA(3) to give him written notice in conformity with the Act inviting him, in accordance with the regulations, to make representations within a prescribed period. The essential complaints are that the Notice given to the applicant did not contain sufficient information on its face to permit him to determine correctly the date by which representations must be made and that it stated, incorrectly, that those representations must be given within 28 days of being so notified.
Procedural history
On 28 October 2020, the applicant lodged an application for judicial review of the Minister’s decision seeking an application for an extension of time for the lodging of his application and supported that application with two affidavits which I have considered.
On 5 November 2020, a response was filed on behalf of the Minister seeking dismissal of the proceeding on the ground that the manner of notification of the cancellation decision given to the applicant on 20 August 2019 was not affected by jurisdictional error.
On 18 November 2020, orders were made by a registrar of the Court for the application for an extension of time to be listed for hearing. The orders made afforded the applicant an opportunity to file any amended application, affidavits and submissions.
On 1 February 2021, an order was made vacating a mention in respect to the hearing pending an appeal in Minister for Immigration and Border Protection v EFX17 (2021) 95 ALJR 342.
On 1 June 2021, an order was made granting leave to the applicant to further amend his application and listing the proceeding for a directions hearing on 30 September 2021.
On 3 June 2021, the applicant lodged an amended application that is unnecessary to address.
Thereafter, on 27 September 2021, judgements and orders were delivered in EPL20 and Sillars in consequence of which the Draft Further Amended Application was served.
The Minister sought to adjourn the hearing of the present application until consideration had been given whether to seek special leave to appeal the Full Court’s judgments and orders in EPL20 and Sillars. I declined that application. The court may vacate a trial date and adjourn or stay a proceeding: s 44(a), Federal Circuit and Family Court of Australia Act 2021 (Cth). It may stay orders given pending an appeal. However, in my opinion, authorities concerning applications for the stay of an order pending appeal entail principles which are quite distinct from the present situation: cfJennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 (Brennan J); Reinhart v Welker (2012) 83 NSWLR 347, [41] (Bathurst CJ, Beazley and McColl JJA). Here, no judgment has been secured. There has neither been a determination of the parties’ rights upon the application for judicial review, nor of any entitlement to relief. The issues in this proceeding remain for determination.
I agree that a material consideration to an adjournment of the application is whether a more efficient use of the judicial and administrative resources available to the court would result from an order vacating the trial date or from requiring that the parties adhere to the date that has been set: cfBLD15 v Minister for Immigration and Border Protection [2017] FCA 72, [17], [22] (Katzman J). In that appeal, her Honour was persuaded that clarification of the law may be achieved through the determination of an application for special leave and that the overarching purpose of civil proceedings would best be promoted by vacating the trial in circumstances where, it was submitted, there were hundreds of cases pending in the then Federal Circuit Court which may be affected by the outcome of the subject appeals. In contrast with BLD15, in the present case the applicant is in immigration detention, no decision has yet been made or application filed seeking special leave to appeal and it has not been submitted that many hundreds of other cases hinge on the result of such application.
Consideration
Although the application has been amended on two occasions, it is sufficient to refer to the Further Amended Application dated 1 October 2021.
Two grounds for review are advanced in the Further Amended Application.
By Ground 1, the applicant contends the Notice informing him of the cancellation decision and inviting him to make representations about revocation of the decision did not contain sufficient information to enable him to determine correctly the date by which any representations must be made. Ground 1, omitting underlining, reads:
The Notice did not lawfully discharge the respondent’s obligations under s 501CA(3) of the Act, because the Notice did not contain sufficient information on its face to permit the applicant to determine correctly the date by which representations must be made.
Particulars
A. The Notice was dated 20 August 2019.
B. The Notice was marked as ‘by hand delivery’.
C. Under the heading “Timeframe to make representations about revocation” the Notice said (CB7):
i.“any representations you may wish to make … must be made within 28 days after you are given this notice”; and,
ii.“As this notice was given to you by hand, you are taken to have received it when it was handed to you”.
D. The Notice was handed to the applicant on 27 August 2019: CB53.
E. The Notice did not record anywhere on its face the date upon which it was handed to the applicant.
F. In the premises, there was insufficient information on the face of the Notice to permit the applicant to determine the date by which representations must be made.
By Ground 2, the applicant contends the Notice informing him of the cancellation decision and inviting him to make representations about revocation of the decision did not correctly fix the period within which representations were required to be made under reg 2.52(2)(b) and so was not a valid invitation for the purposes of s 501CA(3). Ground 2, omitting underlining, reads:
The Notice did not lawfully discharge the respondent’s obligations under s 501CA(3) of the Act, because the invitation in the Notice did not did not (sic) correctly fix the period within which representations were required to be made under reg 2.52(2)(b) and therefore was not an invitation “to make representations . . . within the period . . . ascertained in accordance with the regulations” for the purposes of s 501CA(3).
Particulars
A.Regulation 2.52(2)(b) of the Migration Regulations 1994 (Cth) required that representations under paragraph 501CA(3)(b) of the Act be ‘made’, as in ‘dispatched’, within 28 days after the applicant was taken to have received the Notice.
B.The Notice stated that the representations must be ‘received’by the Department within 28 days: SCB 133 – 134.
C.The Notice did not correctly fix the period for making representations under reg 2.52(b).
D.In the premises, the invitation contained in the notice was not an invitation ‘to make representations . . . within the period . . . ascertained in accordance with the regulations” for the purposes of s 501CA(3) and therefore invalid.
In the circumstances, counsel for the applicant agreed that if relief was granted on the basis of the matters advanced by Ground 2, it was unnecessary to consider Ground 1. It was also common ground that no jurisdictional issue was raised against the proceeding.
Applicable principles – s 477: extension of time
The applicable principles are not in dispute.
By s 477(1), a 35-day time limit is fixed for the making of an application for judicial review of a migration decision. The court may extend the time for filing an application: s 477(2). Power to extend time is subject to two conditions: (1) an application has been made in writing for such an extension in which the applicant specifies why it is necessary in the interests of administration of justice for an extension to be granted; (2) the court is satisfied that it is necessary in the interests of administration of justice to do so.
The discretion to extend time for the commencement of proceedings is a deliberately broad one. In the determination of whether an extension of time should be granted, the court should consider a number of factors including whether there is an acceptable explanation for the delay, the length of the delay, any prejudice to the respondent if the extension was granted, the merits of the substantive application and any other factor considered to be relevant. Insofar as the merits of the grounds of the application are concerned, for the purposes of the application for extension, the grounds are to be considered at a reasonably impressionistic level.
While the discretion is broad, the court should not grant an application for an extension of time unless it is proper to do so. That this is so brings to attention that legislative time limits are not to be ignored. Equally, the discretion conferred recognises that there will be cases in which, although no prejudice may be sustained by the Minister, the consequences for an applicant in losing a right of review are real. If an extension of time is to be granted, the court must be satisfied that it is in the interests of justice to do so. Whether an extension of time should be granted will depend upon the particular circumstances of each case.
Resolution
By the Further Amended Application, detailed grounds were supplied on behalf of the applicant as to why an extension of time should be granted.
The application was more than a year out of time. I do not ignore that this delay is substantial: Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470, [13] (McHugh J). It is not in contest that at the time of the cancellation decision, the applicant was imprisoned and suffering paranoid schizophrenia, bipolar disorder and drug-related psychosis. It was also his case that at the time of decision the applicant was non-compliant with antipsychotic medication, was suffering a significant episode of mental disruption, including psychosis and for which he was undergoing treatment at the psychiatric unit where he was detained. Viewed collectively, the circumstances of this case may be distinguished from, and are somewhat more serious than, those of Megase v Minister for Immigration (2018) 342 FLR 128 (Street J).
At the time of the decision, the applicant had no capacity to understand the nature and effect of the decision and only became aware of it after his arrival in immigration detention in late February 2020. On the evidence, it was not until 19 June 2020 that the applicant’s immigration detention case manager with the Department provided him whether a further copy of the Notice respecting the cancellation decision. At that time, the applicant sought legal assistance.
The steps taken by the applicant’s solicitor upon being retained in the matter are explained in a separate affidavit which I have considered.
I am satisfied the applicant has provided an explanation for the delay in seeking judicial review which may be understood as having occurred in consequence of his poor mental health. Further, the affidavit from the applicant’s solicitor explains the steps which were taken with reasonable promptitude to pursue an application once she had been engaged.
As identified in the applicant’s amended application, submissions and evidence, the Minister points to no prejudice arising from the grant of an extension of time. Contrastingly, he contends substantial prejudice will be suffered if he is denied an extension arising, in particular, from his likely removal before he has exercised an opportunity to seek review of the decision.
It is convenient to evaluate whether there is sufficient substance in Ground 2 following consideration of the principles which concern the mandatory cancellation of a visa and related principles which afford a person whose visa has been mandatorily cancelled an opportunity to make representations in accordance with the Act and regulations for the revocation of such a decision. Suffice to say that upon the Full Federal Court’s recent decisions in EPL20 and Sillars, it is clear the proposed grounds of review, as amended, are of substance even when considered at an impressionistic level for the purposes of an extension of time under s 477.
Applicable principles – s 501CA: notification ‘28 days’
Part 9 of the Act, Miscellaneous, is arranged in two Divisions comprising ss 487ZI-507.
Within Div 2 of Part 9, ss 501-501J address, amongst other matters, the refusal or cancellation of a visa on character grounds. In certain circumstances the Minister must cancel a visa including where a person does not pass the character test by reason that the visa holder has a substantial criminal record (as defined) and upon conviction is serving a sentence of imprisonment, on a full-time basis: Act, s 501(3A). In such circumstances, s 501CA provides a mechanism for the revocation of a cancellation decision made under s 501(3A).
Relevantly, by s 501CA(3) of the Act, as soon as is reasonably practicable after an original cancellation decision has been made, the Minister must give to the person whose visa has been cancelled, a Notice of the decision to do so with particulars of relevant information and “invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.”
In the very limited circumstances are provided by s 501CA(4) of the Act, the Minister may revoke the original decision for mandatory cancellation of a visa. In particular, the power to consider revocation is not engaged where a person has not made representations “within the period and in the manner ascertained in accordance with the regulations.” Regulation 2.52(2)(b) prescribes a period “within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a)” for making representations.
In reg 2.52(2), the statement in the chapeau to the regulation: “The representations must be made” properly construed, means “The representations must be despatched”: Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196, [43]. The holding in Stewart has been upheld; Sillars [2021] FCAFC 174, [48], (Yates, Griffiths and Moshinksy JJ) citing Minister for Immigration and Border Protection v EFX17 (2021) 95 ALJR 342, [41]-[42] (Kiefel CJ, Gageler, Keane, Edelman and Steward JJ); EPL20 [2021] FCAFC 173, [24], [31]-[33], [40]-[41] (Yates, Griffiths and Moshinksy JJ). Those circumstances explain why applications for special leave to appeal in EPL20 and Sillars is presently under consideration.
Resolution
Critical to the resolution of this application is that the Notice given to the applicant purportedly in accordance with s 501CA(3) inviting the applicant to make representations to the Minister about the revocation of the decision is that the Notice informed the applicant in two places (one in ordinary type and the other in bold type with underlining), that if he decided to make representations to the Minister to seek revocation of the cancellation decision, any such representations “MUST be received by the Department within 28 days after you are taken to have received this notice” and, in the second place, that it was “essential that the Required Information is received by the Department within 28 days after you are taken to have received this notice as this timeframe cannot be extended.”
The Notice served on the applicant on 20 August 2019 is relevantly identical to that in EPL20: see [2021] FCAFC 173 at [8]. Upon the authorities considered above, the Notice given in this case is invalid and in a case of this kind, I agree no question of materiality arises.
In my view, the present case is stronger for the grant of relief than in EFX17, inasmuch as here the applicant had filed representations: cf [2021] FCAFC 173, [40]. In EFX17, the applicant had filed no representations whatsoever and yet was held entitled to relief.
Conclusion
For the reasons set out, I am satisfied that it is in the interests of the administration of justice to make an order that the applicant be granted an extension of time within which to apply for judicial review arising from the service and content of the Notice dated 20 August 2019 informing him that it was essential any submissions seeking revocation of the decision for the mandatory cancellation of his visa be received by the Department within 28 days after he was taken to have been served with that Notice. For the same reasons, I am bound to hold that the Notice was defective and for that reason the applicant is entitled to the relief sought.
In the course of submissions, I explored with counsel whether as an alternative to the course sought by the Minister of adjourning the application until after a decision had been made to apply or not to apply for special leave to appeal the decision is in EPL20 and Sillars, it may be preferable to determine the application for judicial review in this court but grant a stay framed in terms that would preserve the parties’ positions pending any such decision, and, if necessary, application for leave and/or the determination of any further appeal. As was submitted, there was considered to be no substantive difference for the parties in the adoption of either course, however it was noted that in each of EPL20 and Sillars the Full Court had framed orders in terms which stayed the operation of an order quashing a decision of the Administrative Appeals Tribunal until after the expiry of the period within which special leave to appeal could be sought, and/or the determination of any such application or any appeal. Having regard to those submissions, I have determined not to grant a stay but simply grant relief in the terms sought.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly. Associate:
Dated: 14 October 2021
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