Hillman-McLean v Minister for Home Affairs
[2019] FCCA 2281
•19 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HILLMAN-MCLEAN v MINISTER FOR HOME AFFAIRS | [2019] FCCA 2281 |
| Catchwords: MIGRATION – Request for revocation of cancellation of visa on character grounds – whether application made within time. |
| Legislation: Migration Act 1958, ss.501, 501CA |
| Cases cited: AMK16 v Assistant Minister for Immigration and Border Protection [2016] FCA 1557 BVA18 v Minister for Home Affairs (No.2) [2019] FCCA 744 |
| Applicant: | TAMAIKOHA HILLMAN-MCLEAN |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | PEG 319 of 2019 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 16 August 2019 |
| Date of Last Submission: | 16 August 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 19 August 2019 |
REPRESENTATION
| The Applicant appeared in person via telephone link |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Discharge the orders made on 16 August, 2019.
Until further order, the first respondent, by himself or by his department, officers, delegates or agents, be restrained, and an injunction hereby issues restraining the respondent from removing the applicant from Australia.
The matter be listed for further directions on 16 September, 2019 at 2:00pm at the Federal Circuit Court of Australia at Perth, Western Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
PEG 319 of 2019
| TAMAIKOHA HILLMAN-MCLEAN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of New Zealand. He was granted a Class TY Subclass 444 Special Category (Temporary) visa on 5 January, 2011. On 20 June, 2017 he was given notice that his visa was cancelled under s.501(3A) of the Migration Act 1958 (Cth).
On 29 June, 2019 the applicant sought the revocation of the decision to cancel his visa. On 5 August, 2019 he was notified by an officer of the first respondent’s department that his application for revocation of his visa cancellation was invalid as it had not been made within the prescribed timeframe. On 7 August, 2019 the applicant was given notice that he was to be removed from Australia on 19 August, 2019.
The application, filed on 15 August, 2019 came before me on an urgent basis on 16 August, 2019. By this application, the applicant seeks an injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from taking action against him on the basis of the decision that his visa revocation application was invalid. But he seeks that relief as final relief in the proceedings together with the setting aside of the original decision to cancel his visa notified to him on 20 June, 2017.
I have treated the application heard before me as an application for an interlocutory injunction against the respondent to prevent the applicant from being removed from Australia pending his challenge to the cancellation decision. Although his application for review seeks to challenge the cancellation of his visa, in truth his application for review is more appropriately construed as an attempt to review the decision of the Department made on 5 August, 2019 to the effect that he has made no valid application for revocation of the cancellation decision because that application was made out of time.
To succeed, the applicant needs to satisfy the Court that there is a serious question to be tried and that the balance of convenience favours the granting of the injunction sought. Given that eh applicant is self-represented, I have examined the material carefully for myself rather than address solely the matters raised by the applicant.
The application is opposed. Ms Tattersall, who appeared for the respondent, argued that there was no serious issue to be tried sufficient to support the grant of the injunction. Nor, she argued, did the balance of convenience favour the grant of the injunction.
For the reasons that follow, I am satisfied that I should grant an injunction to prevent he removal of the applicant from Australia pending the determination of his application for review.
The applicant relied upon an affidavit in support of his case. It was very short. I have set out its terms later in these reasons. In addition to that document, the respondent’s solicitor caused a number of documents to be sent to my Associate by email. They were referred to in argument and I have caused each to be made an exhibit in these proceedings.
Cancellation of visa and revocation
Section 501 of the Act sets out the grounds on which the respondent may refuse or cancel a visa based on character grounds. As they applied to the applicant’s case, s.501 relevantly provided:
501 Refusal or cancellation of visa on character grounds
…
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) … and
(b) the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
…
Character Test
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); …
…
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
…
A person whose visa has been cancelled under s.501(3A) may, under s.501CA of the Act, make representations to the Minister about having that decision revoked. Section 501CA relevantly provided:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) …
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) …
(b) 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.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Regulation 2.52 of the Migration Regulations 1994 (Cth) sets out the timeframe for the making of representations. At the relevant time, it provided:
2.52 Refusal or cancellation of visa—representations in respect of revocation of decision by Minister (Act, s 501C and 501CA)
(1) This regulation applies to representations made to the Minister under paragraphs 501C(3)(b) and 501CA(3)(b) of the Act.
(2) The Representations must be made:
…
(b) for a representation under paragraph 501CA(3)(b) of the Act—within 28 days after the person is given the notice … under paragraph 501CA(3)(a) of the Act.
In his application filed on 15 August, 2019 the applicant alleges:
1. The applicant applied for a revocation of a decision made by a delegate of the minister to cancel the applicant's visa which he submitted within the timeframe while serving a prison sentence at the ERGP prison but the prison failed to forward the application to the NCCC.
2. The respondent's decision which deemed the applicant's application to revoke the visa cancellation invalid and did not enquire to the department of correction services and EGRP of Western Australia to confirmed the applicants claim that he submitted the application to the prison to be mailed within the timeframe.
The notice given to the applicant about the cancellation of his visa asserted that the applicant did not pass the character test on two bases. First, it was said that based on the information before the Department, the applicant had a substantial criminal record within the meaning of s.501(6)(a) on the basis of s.501(7)(c) of the Act because on 8 May, 2017 the applicant was convicted of a serious offence and sentenced to 14 months imprisonment. Second, based on the information available, the respondent’s delegate was also satisfied that, at the time of the decision, the applicant was serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory. The applicant did not take issue with either of those matters.
The evidence establishes that the applicant was given the notice of cancellation of his visa on 29 June, 2017 and I so find. As a result, the applicant became an unlawful noncitizen, liable to be removed from Australia. He has been released from criminal custody and is now in immigration detention.
The applicant’s evidence is, as set out in his affidavit filed in support of this application, as follows:
1. I am the applicant in this proceedings
2. Attached a copy of the decision to cancel the applicant's visa dated 20/06/2017
3. I submitted my application for revocation of the visa cancellation on or around 29/06/2019 to EGRP prison officers for them to mail it to NCCC.
4. On 05/08/2019 I was notified by an officer of home affairs that my application for revocation of my visa cancellation was invalid.
5. The Respondent failed to exercise its jurisdiction by failing to consider the claim made by the Applicant as he already deemed the application not valid and chose not to look into the file
The respondent has put into evidence the most recent correspondence between the applicant and the Department concerning his revocation request. In that material is a letter from the applicant to the Department dated 9 July, 2019 in the following terms (errors in the original):
I have been asked to submit with my submissions and supporting documentation, further clarification on the matter of my previous submissions and request for revocation from the National Character Consideration Centre.
In 2017, I was serving a term of imprisonment, I was given served some documents, from the Officers at Kalgoorlie Prison (Eastern Goldfields Regional Prison). Within these documents was a Cancellation notice of my visa. The cancellation was made pursuant to section 501 (3A) of the Migration Act 1958.
I scrambled around, contacting family and freinds and I had all my references, job offer, etc sent into me at Kalgoorlie Prison, I then with the assistance of Peer Support workers at the prison, and also the prison chaplain, I documented everything and formed a package, to present as my response to the cancellation.
I organised with ther Senio Officer on duty, one day, to have the package posted off to the NCCC Department, from memory I believe it was a Melbourne address. Nonetheless, it left my possession into the senior Officers possession and he assured me that it would be placed in the post the following morning, once he had gone through it. (As all post is searched and read in priosn, both in and out)
I heard nothing further, until I was told at the end of my sentence that the NCCC claim that they have not got my paperwork, and have not been working on my file.
I approached the NCCC directly once I arrived in Yongah Hills Immigration Detention Centre, Western Australia, and had access to emails, and the internet. I also liased with my status resolution officer, and I have been asked to reproduce my submissions and supporting documentation for your consideration.
None of the documents the applicant alleges were put together by him as set out in that letter are in evidence. Nor does he give any evidence that he submitted his revocation application in 2017 within the time frame required although there is an assertion to that effect contained within his written submissions to the Department dated 7 July, 2019 (at paragraph 4).
Thus, the application raises at least two issues. The first is an issue of fact, namely: did the applicant give written representations for the purposes of s.501CA of the Migration Act to the “Senior Officer on duty” at the Eastern Goldfields Regional Prison within the timeframe for making the revocation representations, as he alleges? The second is an issue of law, or perhaps a mixed question of fact and law, namely: what was the legal effect for the purposes of the Migration Act, if any, of giving those written representations to the “Senior Officer on duty”.
As to the first, on the one hand there is evidence that the applicant made his revocation application on time by giving his documents to the “Senior Officer on duty” to then send on for him to the Department. On the other, there is evidence from Corrective Services, Department of Justice, Western Australia to the following effect:
Mr Hillman-Mclean did get released from Casuarina Prison to Immigration, I have asked then to have a look in is file and the only thing they can find is the acknowledgement of receipt letter signed 20/6/17.
We have had a look on his mail listing and there was no outgoing mail listed to NCCC and no prisoner notes were made on the system to state the mail had been submitted and sent.
When we find any more information we will let you know
But that evidence does not mean that the applicant’s claims are not correct. It might have been that the material prepared by the applicant for his revocation application was misplaced or not sent and thus not recorded in the prison’s systems.
On the material before me, it is as equally open to conclude that the applicant did prepare material and give it to the “Senior Officer on duty” as it is that he did not.
It is plainly arguable that the applicant was in immigration detention for the purposes of the Migration Act, at least from the point when he was given notice that his visa was cancelled. I reach that conclusion because, by s.5 of the Migration Act, immigration detention is defined to mean:
…
(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or
…
Officer is defined in s.5 of the Migration Act to mean:
officer means:
…
(g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.
Further, according to a ministerial authorisation made on 29 August, 2000 the:
… persons included in the following classes of persons [are authorised] to be officers for the purposes of the Act
· employees of correctional services or prisons departments, or their equivalent, of all States and Territories who are employed at correctional service or prison facilities
· employees of corporations engaged by State or Territory correctional services or prisons departments to provide correctional or prison services for the State or Territory who are employed at correctional service or prison facilities.
Section 256 of the Migration Act provides:
256 Person in immigration detention may have access to certain advice, facilities etc.
Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.
In AMK16 v Assistant Minister for Immigration and Border Protection [2016] FCA 1557 the Court acted upon a concession by the Minister that officers who are properly authorised under the Act are under an obligation to provide material that is supplied to them for provision to a review tribunal in connection with an application for review by a disappointed visa applicant. On the basis of that concession, the Court found that there had been a breach of the obligation on immigration detention officers to transmit correspondence to the Minister relating to the applicant’s request for revocation of a visa cancellation decision.
Save for the nature of the immigration officer (in AMK16 it was an officer at an immigration detention centre and here it is an officer employed by the state of Western Australia in a state correctional facility), the facts in AMK16 are substantially similar to the present. Those facts demonstrate that, assuming the duty to transmit documents on behalf of detainees without delay, the critical issue will generally be a factual inquiry about the request to forward documents.
AMK16 was distinguished by a judge of this court in BVA18 v Minister for Home Affairs (No.2) [2019] FCCA 744. The factual distinction of relevance is that in BVA18 the applicant was in a state detention facility under the control of state authorities, rather than in a designated immigration detention facility. Judge Cameron thought that a critical distinction. In that case, the applicant had until 15 March, 2017 to make his revocation application. The applicant argued that on 14 March, 2017 he gave the revocation application to a prison officer who had been an officer under the Act because in March, 2017 he was in immigration detention as that term is defined by the Act (as set out above). After considering AMK16, his Honour concluded:
41. Whatever the case, imprisonment is different from immigration detention and most relevantly is not, except in the most technical way, namely by way of definition, a form of immigration detention. It is not obvious that the considerations which applied in AMK16 apply in this case where, at the relevant time, the applicant was serving a term of imprisonment for crimes committed. This important aspect of the matter was not argued in any depth. The applicant’s case was limited to reliance on the fact that prison officers are also defined to be officers under the Act but he did not address the significant difference in the circumstances and duties of prison officers and officers at detention centres. For instance, it has not been shown in this proceeding that state prison officers are susceptible to direction by the Minister, as one must assume is the case with officers in the Minister’s immigration detention centres. Something more than the existence of a status – which has not been shown to be of any material substance – is required in order to find that the relevant state prison officers had a duty to transmit the applicant’s Revocation Request. In this case the Minister did not make a concession of the sort made in AMK16.
That the “Senior Officer on duty” was not impressed with the same duties as the immigration officer in AMK16 is not, in my view, beyond argument. As his Honour’s reasons make clear, the matter was not the subject of any in depth argument before him. On a close examination, it is not beyond contemplation that, in terms of the duties cast upon them by the Migration Act and the requirements of procedural fairness, little difference might be seen between officers at a dedicated immigration detention centre and a state correctional facility.
In my view the applicant establishes the following serious questions to be tried, namely:
a)whether the applicant gave to the Senior Officer on duty his revocation application as he claims; and if so:
i)the nature and scope of the duty owed by the Senior Officer on duty of the Eastern Goldfields Regional Prison to the applicant upon his visa being cancelled;
ii)whether the Senior Officer on duty of the Eastern Goldfields Regional Prison breached any duty so found; and
iii)whether by reason of any breach of duty the applicant was denied procedural fairness, thereby tainting the Departmental decision about the validity of the revocation decision with jurisdictional error.
The balance of convenience favours the grant of the injunction sought. If the applicant is removed from Australia he will be able to prosecute his application from offshore, but if his application is successful, there is nothing to suggest that he will be repatriated to Australia without cost. Moreover, as his statement given in support of his revocation application makes clear, he has his family in Australia, consisting of his foster parents and his own children.
Consequently, the orders will be as set out at the commencement hereof.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 19 August 2019
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