Guden v Minister for Immigration and Citizenship

[2013] FCA 980

FEDERAL COURT OF AUSTRALIA

Guden v Minister for Immigration and Citizenship [2013] FCA 980

Citation:

Guden v Minister for Immigration and Citizenship [2013] FCA 980

Appeal from:

Application for extension of time: Guden v Minister for Immigration and Citizenship [2013] AATA 380

Parties:

BURAK GUDEN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL

File number:

VID 930 of 2013

Judge:

DODDS-STREETON J

Date of judgment:

27 September 2013

Catchwords:

PRACTICE AND PROCEDURE – applicant sought an extension of time under rule 33.13 of the Federal Court Rules to appeal under s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) – application futile as Court lacks jurisdiction to hear an appeal from the Tribunal’s decision under s 500 of the Migration Act 1958 (Cth) (“Migration Act”) under s 44 of the AAT Act – Tribunal’s decision is a privative clause decision or purported privative clause decision – As Federal Court has jurisdiction under s 476A of the Migration Act application for extension treated as made under s 477A.

MIGRATION – Tribunal did not fail to comply with Direction no 55 – Visa Refusal and Cancelation under s 501 and/or take into account irrelevant considerations – misdescription of applicant’s earlier offending not material – Tribunal did not fail to undertake balancing exercise required by paragraph 7(1)(b) of Direction no 55

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1) and (2A)
Direction no 55 – Visa Refusal and Cancelation under s 501 (direction given pursuant to s 499 of the Migration Act 1958 (Cth)) paragraphs 6.3, 7 and 11
Federal Court Rules 2011 (Cth) r 33.13
Migration Act 1958 (Cth) ss 5, 5E, 474, 476A(1) and (2), 477(3)(d), 477A, 483, 499, 500(1), 501(1), (6) and (7)

Cases cited:

Fischer v Commonwealth of Australia (1997) 54 ALD 673
FTZK v Minister for Immigration and Citizenship [2013] FCAFC 44
Metera v Administrative Appeals Tribunal and Anor (2008) 105 ALD 18; [2008] FCA 1627
Rinka v Minister for Immigration & Citizenship [2009] FCA 886

Date of hearing:

20 September 2013

Date of last submissions:

20 September 2013

Place:

Melbourne

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

90

Counsel for the Applicant:

The applicant appeared in person

Counsel for the Respondents:

David Brown of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 930 of 2013

BETWEEN:

BURAK GUDEN
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:

DODDS-STREETON J

DATE OF ORDER:

27 SEPTEMBER 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs fixed at $2,000.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 930 of 2013

BETWEEN:

BURAK GUDEN
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	DODDS-STREETON J
DATE:	27 SEPTEMBER 2013
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1. By an application filed 2 September 2013, the applicant, Burak Guden, sought an extension of time under r 33.13 (of the Federal Court Rules 2011 (Cth) (“Federal Court Rules”)) in which to commence an appeal under s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).

2. The application was supported by:

   (a)the affidavit of the applicant sworn on 2 September 2013;

   (b)a draft notice of appeal dated 2 September 2013; and

   (c)a draft originating application for review of a migration decision dated 2 September 2013.

3. The application was opposed by the first respondent, the Minister for Immigration and Citizenship.

4. On 9 September 2013, the second respondent, the Administrative Appeals Tribunal (“the Tribunal”), filed a submitting notice dated 6 September 2013 stating that it would submit to any order the Court may make but wished to be heard on the question of costs.

5. In his affidavit, the applicant deposed:

   1.I am the primary applicant in this proceedings and all of the information provided in this application and affidavit is true to the best of my knowledge.

   2.I Burak Guden seek judicial review of a decision made by the Administrative Appeals Tribunal on 6 June 2013 to affirm a decision of a delegate of the Minister For Immigration And Citizenship to cancel the Applicant's visa under s501 of the Migration Act.

   3.The decision was sent to my barrister, who had represented me at the AAT, I received the decision about 10 days after 6 June 2013.

   4.As soon as I received my decision I started looking into it but I was not aware of the possibilities and procedures to appeal to the honourable Federal Court.

   5.Due to lack of finances I made contact with VICTORIA LEGAL AID and that point I was informed that there had been some sort of miss communication between me and my ex barrister.

   6.In my submission time should be extended because.

   a.        The delay is short and has been fully explained.

   b.        There is no conceivable prejudice to the Minister.

   c.The substantive case has merit, and indeed should succeed.

   d.There is a public interest in this Court keeping this Tribunal and members of the executive branch of government in general, within the law , particularly in a matter as important as cancelling a visa which would remove a person's entitlement to remain in this country.

   e.In those circumstances I submit that the interests of justice require that the extension of time be granted.

6. At the hearing of the application, the applicant, who was not legally qualified, represented himself.

   BACKGROUND

7. The applicant arrived in Australia with his parents in 1997 when he was 10 years old.  He has resided continuously in Australia on various visas since that date.

8. On 19 March 2004, the applicant pleaded guilty to two charges of recklessly causing serious injury before the Dandenong Children’s Court.  He was not convicted of those offences but was placed on a bond to be of good behaviour until 5 November 2004.  The charges related to a fight between two groups of students at High School during which the applicant, who was then in year 10, stabbed another student with a knife.

9. On 29 June 2005, the applicant applied for a Special Eligibility (Residence) (Class AO), which was refused on 27 October 2006.  The applicant subsequently sought a review by the Migration Review Tribunal.

10. On 9 June 2007, the applicant, in company with one Labinot Musa, attacked and seriously wounded two brothers, John Doukis and Peter Doukis.

11. On 7 April 2008, the Migration Review Tribunal remitted the applicant’s matter to the Department of Immigration and Citizenship.  During that time, the applicant remained on a Bridging E (Class WE) visa.

12. On 20 June 2008, the applicant (then 21 years old) was convicted of several offences in relation to the attack on the Messrs Doukis, including two counts of intentionally causing serious injury when attacking and seriously wounding them.  His Honour, Judge Barnett of the County Court of Victoria, sentenced the applicant to eight years imprisonment with a non‑parole period of six years.  Barnett J made a number of sentencing remarks, which the Tribunal set out at paragraphs 11 and 13 of its reasons as follows:

    14.Guden, when you were interviewed you indicated to the police that you had blacked out. Apparently that night you injected testosterone into your shoulders with the view of building up bulk in the muscles of your shoulders but had significantly overdosed. You were also taking Panadeine Forte and cold and flu tablets as you were suffering from a cold and you consumed alcohol.

    …

    19.At about Poath Road and in Dandenong Road the lights turned red and all cars stopped. John Doukis and Raman tried to turn in their seats to see what was happening with the Celica. John Doukis could not see clearly and opened his door to put one foot out. At that time you, Guden, came increasingly angry and yelled: “Let me out, let me out,” pushing against Hanna’s seat. Hanna opened the driver’s door and her seat released. That allowed you, Guden, to exit the Celica, carrying with you a black handled machete.

    20.You crossed in front of the Celica and ran to the left towards the open driver’s door window of Peter Doukis’s Camry. You yelled: “I’m going to cut your throat” and then swung the machete, using both hands through the open window towards Peter Doukis. Peter Doukis raised his arm and received a machete cut to the right forearm causing a deep incision. He screamed in pain.

    21.During this John Doukis left the Civic and ran across to where his brother’s Camry was. As he neared the Camry, you, Musa, had left the Celica by that stage and ran to John Doukis. You kicked John Doukis from behind and sent him colliding against the boot of the Camry. Doukis then fell to the ground. As he hit the ground you, Musa, began to punch and kick him. About this time Peter Doukis drove his Camry forward to escape Guden.

    22.Guden, you then turned your attention to John Doukis, swinging the machete down at him. John Doukis raised his arm to protect himself and received a severe cut to the left forearm which cut through to the bone. As this was happening you, Musa, continually kicked John Doukis. John Doukis grabbed hold of his injured forearm and you Guden raised the machete and swung it down towards his head. John Doukis ducked his head to try and avoid the blow. He then stood up and ran in a zigzag fashion, trying to escape from both you Musa and Guden. As he did so he screamed: “You’ve broken my arm, what are you trying to do, kill me? Stop it, stop it. If you keep going you’ll kill me.

    23.As he ran he was continually punched and kicked from behind by both of you. In fact you endeavoured to kick his legs to try and make him trip over again. As he neared the grass median strip between the inbound and outbound lanes of Dandenong Road you, Guden, swung the machete down on the rear of Doukis’s head. The blow was delivered with such force it caused large lacerations to the rear of Doukis’s head and fractured his skull. The force was also sufficient enough for a small fragment of the machete to become embedded in his skull.

    24.Witnesses who observed the incident from the intersection of Chadstone Road and Dandenong Road described the attack as a frenzied attack and were highly disturbed by the objective features of what they saw. John Doukis was able to get to his feet again and kept running across the inbound lane towards the serve lane. He was bleeding heavily, leaving a blood trail on the road. He was again kicked and punched by you, Musa, and you, Guden, swung the machete at him again, causing a deep laceration across his back.

    25.At one stage it seems that you, Guden, swang the machete at Doukis as Musa or Doukis grabbed you, causing a cut to Musa’s right hand requiring stitches to be inserted at the Dandenong Hospital. Raman, believing the only way to stop Doukis from being killed was to run down both, that is you Guden and Musa, with the car he was driving. He drove through the traffic lights, made a u-turn, crossing inbound lanes so that he could drive the car into the vicinity of where you, Guden and Musa were standing.

    26.He then attempted to drive the car at both of you but overshot the point where you were standing and came to a stop. Peter Doukis tried to do the same thing. He slipped you, Guden, and then hit you Musa, causing you to roll across the Camry’s bonnet. The break allowed John Doukis to escape towards Raman’s Civic. Raman screamed for John Doukis to get into the car. You, Guden, still armed with the machete ran after John Doukis. You swung the machete at John Doukis but hit the car. Raman was able to drive away from the scene and leave with John Doukis and travel to the Monash Medical Centre.

    27.Peter Doukis at this stage was in severe pain and feeling the effects of blood loss. The passenger in the car took over driving and drove him also to the Monash Medical Centre where police were called. You, Musa and Guden then returned to Hanna’s pink Celica. She drove you towards Dandenong. Musa, you indicated that your hand was cut and you wanted to go to the Dandenong Hospital. Hanna, you pulled into a side street where you allowed Guden to get out of the car and put the machetes in a storm water drain. You then drove Musa to the Dandenong Hospital.

    …

    32.John Doukis received an eight centimetre horizontal wound over the octuple skull fracture, a deep wound to the middle forearm, severing muscles of the ulnar nerve and artery and a superficial wound to the right posterior chest wall. Peter Doukis suffered a six centimetre incise wound to the middle of the forearm. In addition to those injuries of course there are a number of superficial bruises and abrasions caused by the attack on both men.

    …

    56.Clearly you [Mr Guden] were the instigator of the offence, you were the one who was armed with the machete. You were the one who inflicted the severe wound to Peter Doukis’s arm and the multiple wounds to John Doukis. You were the principal assailant that has altered John Doukis’s life quite considerably as a result of the injuries that you inflicted upon him. As I have already said in relation to your co-accused Musa an appropriate sentence must strongly reflect the need of the community to denounce in no uncertain terms your conduct as totally unacceptable and of course to strongly reflect considerations of general and specific deterrence.

    57.In your case I do give weight to your youth. I suspect in many ways given more maturity and your ability to control your inclination to become intoxicated your chances of reoffending are perhaps limited. Nevertheless, even giving weight to those considerations there is a need in my mind to pass a significant sentence of imprisonment.

13. The applicant served a term of imprisonment during which the following reports were made on him:

    1.a report in relation to the applicant’s participation in an Anger Management course conducted by Corrections Victoria in January 2008;

    2.a report of Corrections Victoria dated August 2009;

    3.a further clinical assessment by Corrections Victoria dated 10 May 2010; and

    4.a Specialist Assessment and Management Plan prepared by Ms Stevens, a Provisional Psychologist at the Offender Development Department at the Fulham Correctional Centre, based on an interview with the applicant on 27 April 2013.

14. On 14 March 2013, the Minister refused the applicant’s application for a Special Eligibility (Residence) (Class AO) visa on the ground that the Minister was not satisfied that the applicant passed the character test set out in s 501 of the Migration Act 1958 (Cth) (“the Migration Act”).

15. Section 501(1) provides that “[t]he Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test”. A person does not pass the character test if the person has “a substantial criminal record” (s 501(6)(a)), which includes where “the person has been sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c)).

16. The applicant applied to the Tribunal for review of the Minister’s decision pursuant to s 500(1)(b) of the Migration Act.

17. The Tribunal reviewed the Minister’s decision by reference to Direction no 55 – Visa Refusal and Cancelation under s 501 (“Direction no 55”), as required by s 499 of the Migration Act. On 6 June 2013, the Tribunal affirmed the Minister’s decision, made on 14 March 2013, to refuse the applicant a Special Eligibility (Residence) (Class AO) visa.

    THE TRIBUNAL’S DECISION

    Factual and legislative background

18. The Tribunal set out the factual and legislative background stating, inter alia, at [19]:

    The power of the Tribunal to review the decision to refuse to grant a visa to Mr Guden is provided by Section 500. Under subsection 499(1) the Minister has given written directions (Direction [55] which commenced on 1 September 2012) as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with.

19. The Tribunal noted at [20]:

    As Mr Guden was sentenced to detention for eight years he has a “substantial criminal record” in accordance with subsection 501(7) of the Act.  In accordance with subsection 501(6) he does not pass the character test and I must consider whether the Tribunal should exercise the discretion to grant him the visa he seeks.

20. The Tribunal set out excerpts from Direction no 55, including paragraph 6.3 which specifies the principles that provide the framework within which a decision-maker should approach their task and the primary considerations in paragraph 11(1). The Tribunal stated at [23]:

    The Direction requires the decision-maker (in this case the Tribunal) to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations.

    [footnotes omitted]

21. The Tribunal then considered, seriatim, the three primary considerations enumerated in paragraph 11(1).

    Primary consideration 11(1)(a)

22. In relation to primary consideration 11(1)(a) (“[p]rotection of the Australian community from criminal or other serious conduct”), the Tribunal set out the relevant matters specified in paragraph 11.1 to which it must have regard.

23. The Tribunal discussed the relevant matters in detail. It concluded that the applicant’s conduct to date was extremely serious and the offences he committed in 2007 were within four years of, and more serious than, the first offences. The Tribunal noted that the applicant’s conduct formed the basis of a finding that he was not of good character under subsection 501(6)(c) apart from the finding under s 501(6)(a). The Tribunal had earlier described the circumstances of the offences in 2007 in some detail and set out at length the sentencing judge’s remarks, including about the continuing impact of the applicant’s conduct on several victims (including, the witnesses and the psychological and physical injuries of the Messrs Doukis, one of whom underwent ten hours of surgery and suffered permanent physical damage).

24. The Tribunal discussed the risk to the Australian community should the applicant commit further offences or engage in other serious conduct, having regard to the matters set out in sub‑paragraph 11.1.2 of Direction no 55.

25. The Tribunal also set out sub‑paragraph 11.2.2 of Direction no 55. The Tribunal concluded (at [31]):

    Should Mr Guden commit further offences by way of physical attacks similar to those in which he has engaged in in the past, the harm to individuals and to the Australian community would be extreme.  The victim or victims of such attacks would suffer severe injuries which could be fatal. Many members of the community would be affected by the trauma associated with such attacks and would feel less secure as a result.

26. The Tribunal considered in detail the likelihood of the applicant reoffending, taking into account that the visa he sought would permit him to remain in Australia for an extended period.

27. The Tribunal considered at length a number of reports.  First, it considered the report of Ms Stevens (Provisional Psychologist at the Offender Development Department at the Fulham Correctional Centre).  Ms Stevens prepared a Specialist Assessment and Management Plan in relation to the applicant, whom she interviewed on 27 April 2013.  Ms Stevens opined that the risk he would engage in further violent conduct was low.

1. The Tribunal placed less weight on the opinion of Ms Stevens than it would otherwise have done, as Ms Stevens did not have available totally accurate information, because the applicant gave her an untruthful and inaccurate account of the circumstances of his offending in 2007 which differed significantly from that put to the County Court and the evidence before the Tribunal.  The Tribunal noted that this indicated the applicant’s failure to accept full responsibility for, and an endeavour to minimise the seriousness of, the conduct.

2. The Tribunal noted that the applicant also informed Ms Stevens that he had witnessed atrocities as a child in Turkey leading her to conclude that he was affected by trauma, in ignorance of the fact that the applicant had witnessed atrocities only on television.

3. Further, the Tribunal observed that Ms Stevens’ report was prepared, unusually, immediately prior to the applicant’s release from prison and thus in greater haste would be expected.

4. The Tribunal also observed that the identified offence-related treatment needs and the management strategies Ms Stevens recommended for the applicant were of concern in relation to the likelihood of his reoffending.  The Tribunal was not satisfied that the applicant had duly considered the strategies, and considered that he had had only limited assistance in prison to manage the identified problems contributing to his risk of offending.

5. The Tribunal noted that Ms Stevens rated the applicant at the highest risk level for emotional control, risks associated with weapon use, the possibility of release to high risk situations and cognitive distortion.

6. The Tribunal stated (at [45]-[46]):

   … In relation to emotional control Mr Guden was assessed as being at the preparation for change stage; for the remaining factors he was assessed at the precontemplation stage.  Bearing in mind that this assessment was conducted in late April 2013, it indicates that Mr Guden needs to address the need for change and that he is in need of considerable assistance to bring about change.

   The application of the Scale indicated that Mr Guden scored 34.  The range of scores is as follows:

   0-35 low risk

   36-50 moderate risk
   51-78 high risk.

7. The Tribunal referred to the Corrections Victoria report in August 2009 which indicated that the applicant expressed no empathy for his victim.  The report assessed the applicant’s risk of reoffending as moderate, accorded him a score of 10 in relation to violence and recommended his assessment for inclusion in a Violence Intervention Treatment Program, which did not occur. 

8. The Tribunal referred to the Corrections Victoria clinical assessment of the applicant dated 10 May 2010, which recorded that he had little insight and no remorse, and again recommended the Violence Risk Assessment and Violence Intervention Program.  The Tribunal referred to the applicant’s participation in an Anger Management Program, during his imprisonment, in which he reportedly made minimal contributions and engaged in distracting behaviour.

9. The Tribunal considered the applicant’s assertion that he would not reoffend and the statements of his father and friends who offered support and employment.

   Primary consideration 11(1)(b)

10. The Tribunal then considered primary consideration 11(1)(b) – (“[t]he best interests of minor children in Australia affected by the decision”).  It noted that the applicant’s father, who was terminally ill, had two young children who were half siblings of the applicant.  The applicant also had a step brother aged 13.

11. The Tribunal concluded (at [64]-[65]):

    On the evidence available I am not satisfied that Mr Guden has established a close relationship with any of the children or that he has played a parental role in relation to them. Even taking into account the poor state of his father’s health I am not satisfied that Mr Guden is likely to play a positive parental role in relation to his siblings.  I have taken into account that there is no reason to expect that Mrs Guden will not continue to care for her children.  I am not satisfied that the separation of Mr Guden from any of the children will have a significant impact on any of them.

    The interests of the children do not have significant weight in assessing the several considerations.

    Primary consideration 11(1)(c)

12. The Tribunal observed that primary consideration 11(1)(c) – (“[w]hether Australia has intentional non-refoulement obligations to the person”) was not relevant to the application.

    Other considerations

13. The Tribunal then considered other considerations, as set out in paragraph 12 of Direction no 55, including the impact of visa refusal on immediate family members, the impact on members of the Australian community, including victims and their families, and the impact on Australian business interests.

14. The Tribunal acknowledge that the refusal of a visa would have a significant impact on the applicant’s father and the decision to grant a visa would have a negative impact on some members of the Australian community, including the applicant’s victims and their families, although a significant number of community members would consider that the applicant should be granted a second chance.

15. The Tribunal then discussed “any other considerations”, including the applicant’s residence in Australia since the age of ten, his strong wish to remain in Australia to care for his father and the difficulties he would face in Turkey, albeit he spoke some Turkish and had a mother and sister living there.

    The Tribunal’s conclusion

16. The Tribunal concluded (at [76]):

    Having taken into account all of the relevant considerations and all of the information before me I have come to the conclusion that the need to protect the Australian community significantly outweighs all other considerations.  Even when balanced against all other relevant considerations, the risk to the Australian community if Mr Guden’s application for a visa was granted, is unacceptable.

17. In short, the Tribunal considered that the nature and level of the applicant’s offending and conduct were serious and the risk to the Australian community should he reoffend was extreme.  Further, the applicant sought a visa for an extended period and the risk of reoffending, which had not been, and was unlikely to be, appropriately adequately addressed, was significant. 

    PROCEEDING BEFORE THE FEDERAL COURT

18. On 2 September 2013, the applicant filed an application for an extension of time under rule 33.13 of the Federal Court Rules to commence an appeal under section 44(2A) of the AAT Act. He also filed a draft notice of appeal, apparently under s 44(2A) of the AAT Act.

19. At the same time, the applicant filed an application under s 476A of the Migration Act dated 2 September 2013, for which any extension must be sought under s 477A of the Migration Act.

20. The draft notice of appeal apparently filed pursuant to s 44(1) stated two questions of law as follows:

    1.WHETHER the Administrative Appeals Tribunal failed to take into account a mandatory relevant consideration, being Direction no.55- Visa refusal and cancellation under s501(Direction no,55) which was issued by the Minister pursuant to s 499 of the Migration Act 1958?.

    2.Did the Administrative Appeals Tribunal failed to apply the terms of Direction no. 55 to the evidence before the Tribunal and/ or take into account irrelevant considerations?

21. The draft notice of appeal also stated a number of grounds of appeal.

22. The draft originating application under s 476A of the Migration Act identified five grounds. It sought remedies of certiorari, mandamus and an injunction. The grounds were as follows:

    1.Applying the relevant law incorrectly- The Tribunal decision dated the 6 June 2013 is affected by jurisdictional error because The Tribunal failed to apply the terms of Direction no.55- Visa refusal and cancellation under s. 501 (Direction no.55) which was issued by the Minister pursuant to s 499 of the Migration Act 1958 ( the Act), to the evidence before the Tribunal.

    2.        Failing to take account of relevant considerations-

    A, The Tribunal was bound to comply with Direction no .55 in making its decision, pursuant to s 499(2A) of the Act.

    B, In making its decision The Tribunal was required to undertake "a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community. "- Paragraph 7(1 )(b).

    C, The Tribunal failed to undertake that "balancing exercise" as required.

    3.Taking account of irrelevant consideration while making their decision- The Tribunal's decision is affected by jurisdictional error because the Tribunal failed to apply the terms of Direction no. 55 to the evidence before the Tribunal and/or took into account irrelevant considerations.

    4.        Procedural Unfairness.

    5.        Denial of Natural justice.

    Particulars:

    a. The Tribunal was bound to comply with Direction no.55 in making its Decision, pursuant to s 499(2A) of the Act.

    b. In making its decision the Tribunal was required to take into account as a primary the protection of the Australian community, by reference to the nature and seriousness of the persons conduct and the risk to the Australian community should the person commit further offences - Paragraph 11 .1

    c. On 19 March 2004 the applicant have been placed on a Good Behaviour bond, with out conviction , the Dandenong Children's Court on two charges of causing serious injury recklessly (See Tribunals reasons for decision at [10]).

    d. However the Tribunal erroneously stated in respect of that occasion and the latter occasion of offending by the Applicant "On both occasions Mr Guden attacked his victims with a weapon intending to do serious harm to them."(at[27], emphasis added).

    e. As a result of this error the Tribunal erroneously gave, or may have given, increased weight to the primary consideration of the protection of the Australian Community.

    THE JURISDICTION OF THE COURT

    Application under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)

23. While the applicant sought an extension of time under rule 33.13 of the Federal Court Rules to appeal under s 44(2A) of the AAT Act, such an application would be futile, as the Court lacks jurisdiction to hear an appeal from the Tribunal’s decision under s 500 of the Migration Act under s 44 of the AAT Act.

24. Section 44 of the AAT Act relevantly provides:

    Appeals to Federal Court of Australia from decisions of the Tribunal

    Appeal on question of law

    (1)A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

    …

    When and how appeal instituted

    (2A)  An appeal by a person under subsection (1) or (2) shall be instituted:

    (a)not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and

    (b)in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976.

    …

25. Section 483 of the Migration Act provides:

    Section 44 of the Administrative Appeals Tribunal Act 1975 does not apply to privative clause decisions or purported privative clause decisions. 

26. Accordingly, it is clear from the terms of s 483 that s 44 of the AAT Act does not apply to any decision of the Tribunal to which the definition of “privative clause decision” or “purported privation clause” applies (see: FTZK v Minister for Immigration and Citizenship [2013] FCAFC 44 at [11]).

27. A “privative clause decision” is defined under ss 5 and 474(2) of the Migration Act as:

    … a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

28. Section 474(1) provides:

    (1) A privative clause decision:

    (a)       is final and conclusive; and

    (b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

    (c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

29. A “purported privative clause decision” is defined under ss 5 and 5E of the Migration Act as:

    … a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:

    (a)       a failure to exercise jurisdiction; or

    (b)       an excess of jurisdiction;

    in the making of the decision.

30. In the present case, the Tribunal’s decision under s 500 of the Migration Act is either a privative clause decision of an administrative character made under the Migration Act or it is a purported privative clause decision. The decision is not within the exceptions enumerated in sub-sections (4) or (5) of s 474.

    Application in the Federal Court’s original jurisdiction

31. The Federal Court nevertheless has original jurisdiction under s 476A of the Migration Act in relation to a privative clause decision or a purported privative clause decision of the Tribunal on a review under s 500 of the Migration Act.

32. Section 476A of the Migration Act relevantly provides:

    (1)Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

    …

    (b)the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or

    …

    (2)Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.

    …

33. Accordingly, under s 476A(1)(b) the Court has original jurisdiction in relation to the Tribunal’s decision under s 500 to affirm the Minister’s decision under s 501 of the Migration Act (see, for example, Metera v Administrative Appeals Tribunal and Anor (2008) 105 ALD 18; [2008] FCA 1627 (“Metera”); Rinka v Minister for Immigration & Citizenship [2009] FCA 886). The applicant has filed a draft originating application for review under s 476A.

34. Section 477A prescribes the time limits on applications to the Federal Court under s 476(1)(b) as follows:

    (1)An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

    (2)The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:

    (a)an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

    (b)the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

    (3)       In this section:

    date of the migration decision has the meaning given by subsection 477(3).

    (4)For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection 477(3).

    (5)To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

35. Section 477(3)(d) provides that the date of the migration decision is:

    (d)in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

36. As such, the applicant was, prima facie, required to make his application for review under s 476A within 35 days of 6 June 2013 when written notice of the Tribunal’s decision was sent to his barrister. On any view, the application to the Federal Court made on 2 September 2013 was over one month late.

    Application to be regarded as made pursuant to s 476(1)(b) of the Migration Act

37. While the applicant, who is self‑represented, did not apply for an extension of time under s 477A of the Migration Act, as in Metera, which involved similar circumstances to the present case, I shall treat the applicant’s application for an extension of time as having been made under s 477A(2).

    WHETHER AN EXTENSION OF TIME SHOULD BE GRANTED

    Applicable authorities

38. In Metera, Cowdry J considered the requirements of s 477A(2) and observed:

    [22]In considering whether it is “in the interests of the administration of justice” to grant an extension of time to file an application for judicial review, the court is guided by the observations of Stone J in Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299 ; 95 ALD 66 ; [2007] FCA 591. In such decision (at [35]) her Honour said:

    [35] … The latter requirement [whether an extension of time is in the interests of the administration of justice] would involve consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospect of success.

    [23] Although Stone J’s observations were made in the context of s 477(2) of the Act, which provides the criteria to be considered by the Federal Magistrates Court in determining whether it should grant an extension of time to file an application, Stone J at [47]–[48] adopted the above considerations in determining whether this court should grant an extension of time under s 477A(2). The court also observes that s 477A(2) of the Act is in substantially the same terms as s 477(2). Accordingly, the court will adopt the above considerations in its determination of whether to grant an extension of time under s 477A(2) of the Act.

    The applicant’s explanation for delay

39. The applicant’s explanation for the delay is set out in his affidavit sworn on 2 September 2013 (extracted at paragraph 5 above).

40. Before me, the applicant reiterated that he was without funds to obtain legal representation for the application and could not obtain representation by Legal Aid.  The applicant referred to confusion as to the correct form of application to use.  He also informed the Court that his father had died during the relevant period and he was consequently distracted from pursuing the application.

41. The first respondent submitted that the applicant had not satisfactorily explained the delay as he was represented by lawyers before the Tribunal, the Court could assume that they had properly performed their role and advised the applicant of his right to appeal and the applicable time limits.  The first respondent relied, in that context, on the decision of the Full Federal Court (Lockhart, Whitlam and Sackville JJ) in Fischer v Commonwealth of Australia (1997) 54 ALD 673 at 680 (“Fischer”) which involved a delay of approximately three years in commencing an action under the Administrative Decisions (Judicial Review) Act 1977 (Cth). In Fischer, having found that there was no duty on the part of the Commonwealth or its officers to inform the applicant of his rights, the Full Court stated (at 680):

    In any event, the fact is that the applicant was represented by counsel and solicitors before Wilcox J and the full bench of the Industrial Relations Court.  In the absence of evidence to the contrary, it must be assumed that the legal advisers to parties inform them of the options available to them to challenge decisions adversely affecting them, at least where the advisers are engaged for the purpose of challenging such decisions. 

1. The first respondent also submitted that a letter of Victoria Legal Aid to the applicant dated 27 August 2013 indicated that the applicant had legal assistance but had delayed unduly.

2. The letter of Victoria Legal Aid relevantly stated:

   Dear Mr Guden

   Your migration matter

   I refer to our previous discussions in relation to your matter, and particularly our telephone conversations on 19 August and 27 August.  I confirm that you will need to ensure that all documents have been filed with the Federal Court to initiate an appeal against the decision of the Administrative Appeals Tribunal.  I understand the Federal Court Registry has today indicated that no appeal documents appear to have been lodged.  I have previously provided you with all of the documents you will need to do so.  For the sake of completeness, I provide again the following:

   1.        Form 70 for initiating appeal;

   2.        Form 75 for initiating appeal;

   3.        Application for exemption from the payment of fees.

   You should contact the Federal Court immediately, on [phone], to confirm which forms you need to provide - there has been some confusion between the Registry at the Court, and the barrister who provided an opinion in your case, as to whether the appropriate form is Form 70 or Form 75.

   Immediately confirm with your case manager that you have lodged the necessary forms with the Court.

   …

   JOEL TOWNSEND
   Program Manager, Migration
   Civil Justice

3. As stated above, although the applicant applied for an extension under s 44 of the AAT Act, any appeal under that provision would be incompetent. Apparently for avoidance of doubt, the applicant also filed an originating application under s 476A of the Migration Act.

4. While the letter of Legal Aid indicates that the applicant received some legal assistance or advice it is not clear, and indeed seems improbable, that any lawyer was formally retained to comprehensively assist him in relation to an appeal or review of the Tribunal’s decision.  Indeed, it may fairly be inferred from the letter that there was confusion about the appropriate form to use.  Further, it appears that the applicant was ultimately responsible for resolving the confusion and lodging, and perhaps completing, the forms.

5. In all the circumstances, including the relatively short period of delay, the fact that the applicant was not legally represented (albeit he received some legal advice), the confusion attending the appropriate forms and the applicant’s bereavement, the applicant’s explanation was, in my opinion, satisfactory.  The first respondent did not contend that he would suffer any substantial prejudice if an extension were granted.

   The applicant’s prospects of success

   Proposed grounds

6. The applicant’s draft notice of appeal and draft originating application alleged substantially similar, if not identical, grounds, which may be summarised as follows:

   (a)The Tribunal failed to comply with Direction no 55 and/or took into account irrelevant considerations because it incorrectly stated that the applicant intended to cause serious harm in his knife attack on a person at school in March 2004 and accordingly gave, or may have given, undue weight to that offending (ground 3 of the originating application).

   (b)The Tribunal failed to comply with paragraph 7(1)(b) of Direction no 55, which requires it to undertake a “balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community” (grounds 1 and 2 of the draft originating application).

7. The draft originating application also alleged (grounds four and five respectively) “procedural fairness” and “denial of natural justice” but no particulars of those grounds were provided.  Before me, the applicant in oral submissions made clear that the alleged unfairness resided in the Tribunal’s failure satisfactorily to perform the balancing of the considerations, rather than any denial of an opportunity to put his case. 

8. The applicant stated that the Tribunal did not balance the factors correctly, because it focused on the possibility of the future harm he might do, which was unpredictable.  Moreover, the Tribunal had not acted upon professional and expert evidence that he posed a low risk of reoffending.  The applicant acknowledged that the Tribunal had performed a balancing exercise, but in his submission the outcome was unfair and wrong.

   Description of and weight given to the March 2004 incident

9. The Tribunal (at paragraph 10 of its reasons) described the March 2004 incident as one in which the applicant stabbed a fellow school student with a knife.  The Tribunal noted that, although he was not convicted of these offences, the applicant had “pleaded guilty to two charges of recklessly causing serious injury”, and was placed on a good behaviour bond.

10. Subsequently, while considering primary consideration 11.1(1)(a) and the nature and seriousness of the applicant’s conduct to date, the Tribunal stated (at [27]):

    There can be no doubt that [the applicant’s] conduct to date is extremely serious.  The offences for which he was imprisoned were committed within four years of his first offences and were more serious than the first.  On both occasions [the applicant] attacked his victims with a weapon intending to do serious harm to them.  I do not know the seriousness of the injuries which he inflicted with the knife, however, the injuries inflicted with the machete were extremely serious and in the case of Mr John Doukis, life threatening. …

    [emphasis added]

11. The Tribunal’s statement at paragraph 27 that the applicant was “intending to do serious harm” in the 2004 attack, is a misdescription or at least, does not necessarily follow from the applicant’s pleading guilty to a charge to “recklessly causing serious injury”. 

12. The statement (at paragraph 27) was made in the context of the Tribunal’s consideration of the nature and seriousness of the applicant’s conduct to date (which formed part of its consideration of primary consideration 11.1(1)(a) (“the protection of the Australian community from criminal or other serious conduct”)) in the light of, inter alia (by paragraph 11.1.1) “[t]he frequency of the person’s offending and whether there is any trend of increasing seriousness” (sub-paragraph (f)).

13. At paragraphs 28 and 29, the Tribunal went on to conclude, in relation to the nature and seriousness of the applicant’s conduct to date, as follows:

    28.In my view the conduct of [the applicant] formed the basis of a finding that he was not of good character under subsection 501(6)(c) apart from the finding under subsection 501(6)(a).

    29.In his Reasons for Sentence Barnett J referred to the ongoing impact of [the applicant’s] conduct on several victims, including those who witnessed the attack.  Both Mr John Doukis and Mr Peter Doukis suffered severe psychological scarring as a result of the attack as well as their physical injuries.  Mr John Doukis spent five days in Intensive Care and underwent ten hours of surgery.  His studies and leisure activities were disrupted.  He has permanent damage to his left arm and hand.

    [footnotes omitted]

14. At an earlier point in its reasons, the Tribunal correctly described the nature of the 2004 charges to which the applicant pleaded guilty.  If and in so far as its description in paragraph 27 reflected misapprehension, rather than mere misstatement, it was, in my view, immaterial in the context of the Tribunal’s consideration of the nature and seriousness of the applicant’s conduct, in which it gave primary weight to the 2007 attack on the Messrs Doukis, the applicant’s associated conviction and the increasing seriousness of his offending conduct.

15. In my view, the misstatement in paragraph 27 did not result in a jurisdictional error and did not lead to the Tribunal giving, or possibly giving, undue weight to the March 2004 incident.

    Balancing exercise required by paragraph 7(1)(b)

16. The applicant also alleged that the Tribunal failed to comply with paragraph 7(1)(b) of Direction no 55, set out in paragraph 74(b) above.

17. While, the Tribunal did not expressly refer to paragraph 7(1)(b), it discussed each of the relevant considerations, and expressly referred to a balancing (at [76]).  In my view, the Tribunal conscientiously and carefully undertook the balancing exercise required.

    Procedural fairness and denial of natural justice

18. There was no basis on which to assert a breach of procedural fairness or a denial of natural justice.  The applicant provided no details of any breach of procedural fairness or denial of natural justice, but submitted that the Tribunal’s decision was wrong and reiterated the substance of the other alleged grounds, considered above.

    CONCLUSION

19. While the Tribunal’s decision is undoubtedly unwelcome to the applicant, as counsel for the first respondent submitted, the Tribunal was obliged to have regard to the risk (as distinct from the certainty) of harm to the community from the applicant’s possible re‑offending in future.  The Tribunal was also entitled, and required, to weigh the evidence, including expert evidence and could where appropriate, properly accord it little or no weight.

20. In the present case, the Tribunal carried out the balancing exercise required under Direction no 55 by reference to the relevant circumstances and did not take into account irrelevant matters. It appropriately assessed the expert evidence which it was not bound uncritically to accept.

21. The application for an extension of time under r 33.13 of Federal Court Rules to bring an appeal from the Tribunal’s decision is futile as the Federal Court does not have jurisdiction under s 44(2A) of the AAT Act to hear the appeal from the Tribunal’s decision. Although I treat the application for an extension of time as having been made under s 477A(2) of the Migration Act, it would be futile to grant the extension because the grounds set out in the draft originating application have, in my opinion, no prospects of success.

22. Accordingly, the application for an extension of time should be dismissed.

I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dodds-Streeton.

Associate:

Dated:       27 September 2013