Hamilton v Minister for Immigration and Border Protection
[2015] FCA 1428
•16 December 2015
FEDERAL COURT OF AUSTRALIA
Hamilton v Minister for Immigration and Border Protection [2015] FCA 1428
Citation: Hamilton v Minister for Immigration and Border Protection [2015] FCA 1428 Parties: KEPA HAMILTON v MINISTER FOR IMMIGRATION AND BORDER PROTECTION File number(s): NSD 1134 of 2015 Judge(s): BUCHANAN J Date of judgment: 16 December 2015 Legislation: Migration Act 1958 (Cth), ss 476A, 476A(1)(c), 477A, 477A(1), 477A(2), 477A(2)(a), 477A(2)(b) Date of hearing: 9 December 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 21 Counsel for the Applicant: The applicant appeared in person Solicitor for the Respondent: M Stone of DLA Piper Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1134 of 2015
BETWEEN: KEPA HAMILTON
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
16 DECEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application filed in this Court on 17 September 2015 (as amended on 24 November 2015) is dismissed as not competent.
2.The applicant pay the respondent’s costs, as taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1134 of 2015
BETWEEN: KEPA HAMILTON
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
BUCHANAN J
DATE:
16 DECEMBER 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 21 July 2015, the applicant’s visa was cancelled on character grounds. He was taken into immigration detention. The advice of visa cancellation was confirmed in a letter dated 5 August 2015 which was hand-delivered to the applicant on that day. He acknowledged receipt in writing on that day.
As the decision was made personally by the Minister for Immigration and Border Protection, the applicant had no right to challenge the decision before the Administrative Appeals Tribunal. However, the applicant had a right to commence proceedings in this Court pursuant to s 476A(1)(c) of the Migration Act 1958 (Cth). Section 476A(1)(c) and s 477A(1) and (2) provide:
476ALimited jurisdiction of the Federal Court
(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:
…
(c)the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; …
477ATime limits on applications to the Federal Court
(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.
I propose to consider the applicant’s endeavours to challenge the decision of the Minister in this Court in two ways. First, I will consider the question by reference to the statutory requirements necessary to engage the Court’s jurisdiction. Then, I will consider the position from a point of view which largely dispenses with any procedural formality. The result is same.
The applicant purported to commence proceedings in this Court by application filed on 17 September 2015. By that time, his application was statute barred unless he sought and was granted an extension of time in accordance with s 477A(2).
This difficulty, and the means to address it, was drawn to the applicant’s attention at a case management hearing on 16 October 2015. Orders were then made requiring any application for an extension of time to be filed by 20 November 2015 and, in anticipation, listing any such application (and the proceedings generally) for hearing on 9 December 2015 pursuant to an agreed timetable.
The applicant did not file such an application. On 24 November 2015, he filed a further (amended) application seeking judicial review of the Minister’s decision, but without seeking any extension of time in which to do so and, in any event, without in any way (however indirectly) addressing the requirements of s 477A(2)(a).
The further application, like the first, also failed to identify any ground for judicial review which might justify setting aside the Minister’s decision – i.e. some ground to the effect that the Minister’s decision was affected by jurisdictional error. I accept that the applicant wishes to challenge the Minister’s decision, but the materials filed in this Court do no more than protest, in a summary way, that the applicant pleaded guilty to particular criminal charges (relating to his failure to meet the character test) on legal advice, although he was not truly guilty of the charges.
On 30 November 2015, the Minister formally objected to the application for judicial review as not competent, because it was out of time and no extension of time had been sought as required by and in accordance with s 477A.
The present position is that the application is out of time and statute-barred and therefore (even as amended) is not competent. It would, in any event for the reasons given hereunder, be futile to extend time. I therefore could not be satisfied that it was in the interests of the administration of justice to extend time, as required by s 477A(2)(b).
The application filed on 17 September 2015 (as amended on 24 November 2015) should, accordingly, be dismissed as not competent.
Despite this conclusion, which seems to me to be inescapable, I shall also explain why any disregard of the procedural requirements to which I have referred could result in no different outcome for the applicant.
The Minister accepted that the delay in commencing proceedings was, in part, explained by the delay in hand-delivering a copy of the Minister’s decision to the applicant and that the remaining delay was a short one. Apart from drawing attention to the statutory requirements for an extension of time, the Minister did not oppose a further amendment to the application at the hearing itself (if sought) to overcome any procedural difficulty. However, the Minister’s submissions made a very cogent case why it would not assist the applicant if such a course was taken.
It must be understood, for the purposes of the discussion which follows, that there could be no intervention by this Court unless the Minister’s decision, or the procedures followed by him, was or were affected by jurisdictional error. To demonstrate such an error it would be necessary for the applicant to show that the Minister had failed to apply himself properly to the statutory task. This Court has no role to play in assessing what decision the Minister should have made.
The general background to the Minister’s decision is set out in the Minister’s written submissions as follows, which I accept as a convenient summary:
The Minister’s decision
5The applicant is a male citizen of New Zealand. His significant criminal convictions involve four sexual offences committed against a child who was on a ‘sleepover’ with the applicant’s daughter, and one offence against the applicant’s daughter.
6In his decision dated 21 July 2015, the Minister had regard to the applicant’s Australian convictions, as well as convictions in New Zealand. The Minister regarded the offences as serious, and, with respect to the Australian convictions, very serious, …
7The Minister had regard to relevant evidence concerning the applicant’s risk of reoffending, including an email from his consultant psychologist (…). … the Minister considered the applicant’s various character references. … the Minister considered that various positive factors he had outlined reduced the likelihood of the applicant reoffending. However, having regard to the applicant’s criminal record, the Minister considered the applicant presented a likelihood of reoffending, albeit a low one. The Minister found that notwithstanding the applicant’s current commitment to rehabilitation, if the applicant reoffended in a similar manner, the harm to the community would be high and unacceptable.
(Footnotes omitted.) (Paragraph references omitted.)
It was accepted in the Minister’s case that the Minister was obliged to have regard to the likely consequences of visa cancellation, and that it was appropriate to have regard to the interests of the applicant, his family and others, in that regard. I accept the following submissions also as a convenient summary of those matters:
8… the Minister gave consideration to the best interests of children aged under 18 whose interests were affected by visa cancellation.
8.1… the Minister accepted it was in the best interests of the victim to not cancel the applicant’s visa. The Minister found this would allow the applicant an opportunity to attempt to repair his relationship with the victim. The Minister found … that it was in the best interests of the remaining four children (that is, those children born to the applicant’s wife) that the applicant’s visa not be cancelled.
8.2The other two minor children were estranged from the applicant. The Minister found, … that it would be reasonable to expect the applicant would face significant challenges in developing and maintaining relationships with these children if the applicant relocated to New Zealand.
8.3The Minister considered the position of the applicant’s four grandchildren and three step grandchildren, … He found the best interests of these children would be best served by not cancelling the visa.
9The applicant did not claim to be owed non-refoulement obligations and there was nothing on the material before the Minister to suggest such a claim. The Minister found accordingly, …
10The Minister considered various other relevant matters, including but not limited to the applicant’s ties to Australia, hardship to other family members, and the applicant’s health conditions.
11The Minister concluded, … that the applicant had committed very serious crimes of a sexual nature involving minors. The Minister held that the Australian community could be exposed to great harm should the applicant reoffend in a similar fashion. The Minister could not rule out the possibility of further offending by the applicant, and found that the community should not tolerate any further risk of harm, … The Minister held, … that this consideration above outweighed the countervailing considerations in the applicant’s case, including the best interests of his seven minor children and the impact on his family members (…).
(Paragraph references omitted.)
The written submissions for the Minister also pointed out that the Minister’s attention was drawn to the applicant’s contention that he only pleaded guilty to the charges against him on legal advice, as well as a suggestion made by the applicant that his conduct may have been the result of his own sexual abuse as a child. The Minister stated in his decision that he had taken both those matters into account in reaching his decision.
At the hearing of the present matter, the applicant again emphasised the personal hardship that visa cancellation will involve, and his desire to remain in Australia with his family. He again declared that he would not have pleaded guilty to the criminal charges if he had understood it would jeopardise his visa.
However, as I explained to the applicant, those are not matters for this Court, which is confined to a consideration of whether the Minister made some jurisdictional error.
Whatever view is taken of the procedural requirements, I can see no basis for concluding that the Minister misunderstood the statutory provisions, or their operation, or failed to consider any matter now relied on by the applicant or otherwise made any jurisdictional error which would provide a basis for intervention by this Court.
As a result, I accept the submission of the Minister that it would be futile to grant an extension of time. I therefore formally refuse an extension of time, and any amendment of the proceedings to seek such an extension of time.
The application to this Court is not competent. It must be dismissed with costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 16 December 2015
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