Joseph v Minister for Immigration and Citizenship, Migrant Services, and Multicultural Affairs
[2020] FCA 434
•6 April 2020
FEDERAL COURT OF AUSTRALIA
Joseph v Minister for Immigration and Citizenship, Migrant Services, and Multicultural Affairs [2020] FCA 434
File number: VID 1283 of 2019 Judge: ANASTASSIOU J Date of judgment: 6 April 2020 Catchwords: MIGRATION – application for an extension of time in which to seek judicial review, and judicial review, of a decision of the respondent made personally under s 501CA – short delay – no express explanation for delay – no prejudice to respondent aside from finality of administrative decision making – substantive application without sufficient merit to grant extension – application for extension of time dismissed Legislation: Federal Court Rules 2011 (Cth) r 31.23
Migration Act 1958 (Cth), ss 476A(1), 477A(1) and (2), and 501CA(3) and (4)
Cases cited: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Date of hearing: 31 March 2020 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 31 Counsel for the Applicant: The applicant appeared in person Solicitor for the Respondent: Mr A Cunynghame of Sparke Helmore Lawyers ORDERS
VID 1283 of 2019 BETWEEN: IOANE JUNIOR JOSEPH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
ANASTASSIOU J
DATE OF ORDER:
6 APRIL 2020
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs of and incidental to the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ANASTASSIOU J:
The applicant, Mr Joseph, seeks an extension of time in which to seek judicial review of a decision of the respondent, the Minister. The Minister decided personally under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the applicant’s Special Category (subclass 444) visa under s 501CA(3) of the Act.
For the reasons that follow the application is dismissed with costs.
Background and offending history
The applicant is a citizen of New Zealand. He arrived in Australia in 1997 aged 19, and has lived here since that time. For the majority of the years between his arrival in Australia and his incarceration in 2010 as described below, the applicant was employed as a forklift driver.
On 29 August 2008 the applicant was convicted in the Dandenong Magistrates’ Court of Victoria of three counts of breach of intervention order, five counts of assault police, and one count of being drunk in a public place. He was fined an aggregate of $1,250.
On 26 August 2011 the applicant was convicted of the following offences, with the sentences for each offence in parenthesis:
•Incest by step parent (66 months imprisonment)
•Incest by step parent (60 months imprisonment. 42 months of sentence concurrent)
•Indecent ACT with child under 16 (10 months imprisonment. Nine months of sentence concurrent)
•Indecent ACT with child under 16 (10 months imprisonment, concurrent)
•Indecent ACT with child under 16 (30 months imprisonment. 18 months of sentence concurrent)
•Make/produce child pornography (18 months imprisonment. 15 months of sentence concurrent)
•Indecent ACT with child under 16 (10 months imprisonment, concurrent)
•Recklessly cause injury (Three months imprisonment. Two months of sentence concurrent)
•Recklessly cause injury (Four months imprisonment. Three months of sentence concurrent)
•Indecent ACT with child under 16 (24 months imprisonment. 18 months of sentence concurrent)
The applicant pleaded guilty to each of the offences. The applicant was sentenced to a cumulative total effective sentence of nine-years’ imprisonment.
The remarks of the sentencing judge were in evidence before me. The sordid details of the offending do not bear repeating in full. In short, the applicant’s primary victim was the daughter of his ex-wife. The applicant and his ex-wife married in 2004 when the victim was aged five. In 2006 the applicant and his ex-wife had a child of their own. They separated in December 2007. After the separation the applicant was allowed contact visits with his step-daughter and biological daughter. It was during these visits that the majority of the offending occurred.
The offending occurred on more than 20 occasions over an extended period when the victim was aged between 10 and 15. The offending included the applicant taking pornographic images of the victim. On one occasion the applicant threatened to kill the victim and himself with a knife. On two occasions he raped the victim by penetrating her vagina with his penis.
The sentencing judge accepted several factors in mitigation of the offending. In particular, her Honour accepted that the applicant had himself been abused at a young age. The applicant was also diagnosed with a personality disorder, and was addicted to gambling, alcohol and illicit substances. The sentencing judge also accepted that the applicant had shown ‘true remorse’.
On 19 April 2017 the applicant was issued a notice by the Minister’s Department that his visa had been cancelled under s 501(3A) of the Act. He was invited to make representations in response to the notice supportive of the revocation of the cancellation. On 25 April 2017 he did so.
On 16 January 2019 the Minister’s Department wrote to the applicant to give him the opportunity to comment on additional information which may have been taken into account by the Minister in deciding whether to revoke the cancellation. This additional information included the applicant’s National Police Certificate.
On 14 October 2019 the Minister decided not to revoke the mandatory cancellation of the applicant’s visa. The Minister’s submissions set out a convenient summary of the Minister’s findings and reasoning, which I repeat (save that I have replaced the name of applicant’s daughter with “A” to better protect her identity):
10. The Minister set out the statutory framework for his decision ([2]) and determined that as a result of his criminal convictions and sentences, the applicant did not meet the character test as defined by s 501 of the Act ([4]-[9]). In so finding, the Minister noted that the applicant did not dispute the information in the national police certificate dated 30 November 2017 regarding his criminal convictions and sentences, or that he did not pass the character test ([8]). The Minister proceeded to consider whether there was another reason why the cancellation should be revoked in accordance with s 501CA(4)(b)(ii) of the Act. In particular, the Minister considered the following matters.
11.The Minister had regard to the best interests of minor children ([13]). The Minister confirmed that the applicant had one 13-year-old child named [A] to his former wife ([14]). The Minister noted that although the applicant stated that he had continuing contact with [A], he had not lived with her since she was aged five and her mother had been her sole carer since the age of nine ([17]). To the extent that [A] wished to build a relationship with the applicant in the future, the Minister recognised that she may benefit from his presence in Australia during her adolescence, however noted that she could remain in contact with the applicant by telephone and other electronic means even if the applicant was in New Zealand ([20]). The Minister accepted that a non-revocation outcome would prevent [A] from having personal contact with the applicant in Australia and found that it was in [A]’s best interests to revoke the cancellation of the visa ([21]).
12.The Minister had regard to the applicant’s ties to Australia ([24]). The Minister noted that despite the applicant’s claim that his family struggled when he was incarcerated and will experience hardship in the event of his removal, no representations from family members or others were made and the Minister was not satisfied that the applicant had much support from relatives or other members of the community ([25]). Noting that the applicant had spent 12 years contributing positively to the community through gainful employment and membership of his local church, the Minister gave some weight to this consideration ([27]).
13.The Minister had regard to the impediments the applicant would face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards ([28]). On balance, given the significant linguistic and cultural similarities between New Zealand and Australia, the Minister found that the applicant would be able to resettle there without insurmountable impediments ([29]). Acknowledging the applicant’s history of mental health and substance abuse issues and likely need for rehabilitation supports, the Minister was satisfied that appropriate health and welfare services would be available to him in New Zealand ([31]).
14.The Minister also had regard to the protection of the Australian community ([32]). The Minister was of the view that sexual offences are very serious especially if they were committed against a child ([33]). The Minister detailed the applicant’s offending and factual circumstances surrounding the offences ([34]-[41]). The Minister concurred with the sentencing judge’s characterisation of the applicant’s offending as a “breach of trust of the grosses kind” and that it was a significant aggravating feature that the applicant sexually abused his own stepdaughter from a very young age with numerous sexual acts over an extended period ([42]). The Minister found that the offences constituted extremely serious sexual offending.
15.The Minister had regard to whether the applicant posed a risk to the Australian community through reoffending including any mitigating or causal factors in his offending, any steps he had taken to reform, his conduct in the custodial and non-custodial environment and his insight into the offending ([45]). The Minister acknowledged that the applicant had suffered sexual and physical abuse by a male relative ([46]). Adopting the comments made by the sentencing judge, the Minister found that whilst the applicant’s past trauma and its effects on his personality were likely to have been an important contributing factor helping to explain his offending, the available evidence did not suggest that his actions were beyond his control or he was unaware of the impact of such conduct on victims ([47]). The Minister acknowledged that the applicant’s abuse of drugs and alcohol since his mid-teens had escalated and contributed to a deterioration of his mental health ([48]). The Minister was prepared to accept that the applicant had completed a targeted sexual offending course and the likelihood of reoffending was somewhat reduced by his remorse, insight and vocational and other rehabilitation courses undertaken ([51]).
16.The Minister could not be confident that the likelihood of the applicant reoffending was negligible and found that if the applicant were to reoffend the potential consequences were of a very serious nature and could result in physical and psychological harm to members of the Australian community ([52]).
17.Overall, the Minister found that the applicant represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed his lengthy residence, best interests of his minor child, claims he would suffer hardship and harm if returned to New Zealand, his employment and familial ties to Australia, and the hardship the applicant, his family and social networks would endure in the event that the mandatory cancellation was not revoked ([61]). Accordingly, the Minister decided not to revoke the mandatory visa cancellation ([63]).
Application to this Court
On 22 November 2019 the applicant filed his application for extension of time. The application sought an extension of time in which to lodge and application for review of the decision of the Minister under rule 31.23 of the Federal Court Rules 2011 (Cth). The accompanying affidavit to the application was in terms as follows:
I [name address and occupation] [*either] say n oath [*or] affirm:
1. [*] I am the [role of the party eg Respondent] [*or] I am the [position of officer eg director] of the [role of party eg Respondent] and I am authorised to make this affidavit on the [role of party eg Respondent]’s behalf. [*or] I am a witness.
2. Cancellation of Visa:
3.Unlawfulness, Unreasonableness, Errors in Ministers Annexure, Procedural Fairness,
4.Failure to take into account relevant considerations
5.There was no evidence or other material to justify the making of the decision that It will not be possible to ever see my daughter again due to the sex register.
6. Errors in Ministers Annexure, stating I have no or little support in Australia.
7.Procedural Fairness, it is unfair that the Minister is deporting me back to a country whereas I do not have any family whatsoever.
It appears that paragraphs three onward are the applicant’s proposed grounds of review.
On 19 December 2019 the application came before me for case management. The applicant was self-represented and remained so to the final hearing of the application. The applicant indicated that he was seeking representation and requested the hearing be listed after February of 2020 to enable this to occur. I acceded to this request, and explained to the applicant the nature of the present application being an extension of time in which to seek judicial review. In particular, I explained that the Court cannot replace the Minister’s decision just because it considers a different decision to be preferable.
The application for extension of time and the substantive application were listed for hearing on 31 March 2020. On 19 December 2019 I gave the applicant leave to file and serve an amended application and any further evidence on which he sought to rely. The applicant did not avail himself of this opportunity. The applicant did not file submissions in line with the timetabling orders, leaving only his oral submissions and original materials to form the basis of this application.
Consideration
The substantive application for review is brought under s 476A(1) of the Act. Pursuant to s 477A(1) such an application is to be filed within 35 days of the Minister’s decision. The application was therefore filed four days out of time.
Under s 477A(2) of the Act the Court may extend time where (a) an application for that order has been made in writing to the court specifying why the applicant considers it necessary and (b) the Court it is satisfied it is “necessary in the interests of the administration of justice” to do so. In determining the latter question, the Court will usually have regard to the length of delay, the explanation for it, any prejudice to the respondent and the merits of the substantive application.
The Minister does not contend he has suffered any prejudice as a result of the delay beyond the public interest in the finality of administrative decision making. I need not consider this matter any further.
Turning to the delay and the cause for it. The delay was for a short period. The Minister submitted that the applicant has not put on any evidence of the cause for the delay. In this regard I echo the comments of Mortimer J in MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [5] that “[s]ometimes matters such as lack of legal representation, little or no proficiency in English, and little or no understanding of the Australian legal system may combine to suggest a delay is explicable”.
Turning then to the substantive merits of the application. The Court will typically consider whether the substantive application is sufficiently arguable to support granting the extension: SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [48]. However, as Mortimer J said at [6] in MZZIV, “it is not in the interests of the administration of justice to utilise the resources of the Court and of other parties where there is no realistic prospect the appeal will succeed if an extension is granted”.
Whether there is a realistic prospect of success will depend upon the prospects of an error being identified that is material in the sense discussed in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 at [30] and [72]. It is to be remembered that for an extension to be granted under s 477(2)(b) it must be “necessary in the interests of the administration of justice” (emphasis added).
I now turn to the applicant’s grounds of review as contained in paragraphs three to seven of his supportive affidavit extracted above.
Grounds three and four are assertions of error, unparticularised in any way. They cannot form the basis for an extension of time in which to seek judicial review.
Ground five in effect asserts the Minister had ‘no evidence’ to support a finding that the applicant would never be able to see his daughter again due to his name being on the sex offenders’ register. The applicant argued that in fact he was a low risk of reoffending, as he had demonstrated contrition and remorse for his crimes and had undergone rehabilitation courses.
It is a mischaracterisation of the Minister’s reasons to construe them as concluding, as stated by the applicant, that “[i]t will not be possible [for the applicant to] ever to see [his] daughter again due to the sex register”. Rather, the relevant passages of the Minister’s reasons is as follows:
17.… In the event that [the applicant] is released into the community, I hold reservations as to how he will manage to re-establish his relationship with his daughter. Even if [the applicant] is able to remain in Australia, his overall movements and direct engagement with any children, including [A], will be strictly overseen by police and child protection services if allowed at all, owing to the mandatory reporting obligations imposed in his classification as a registerable sex offender. …”
There was ample evidence for the Minister’s express ‘reservations’ as to the applicant’s ability to reconnect with his daughter. In any event, the Minister concluded that it would be in the applicant’s daughter’s benefit if he were to remain in Australia. Accordingly, even if the applicant’s construction of the Minister’s reasons was to be preferred, it would be unlikely to be material to the Minister’s ultimate decision. Similarly, the Minister considered and largely accepted the applicant’s evidence of his rehabilitation. He correspondingly accepted that the applicant’s risk of reoffending was lowered however found that the risk was not negligible and would result in serious consequences.
Reading ground six in a way beneficial to the applicant, it may be construed as referring to the Minister’s finding that there was little evidence of support from family or members of the community. No particulars were given. However, in oral submissions, the applicant submitted that representations he made concerning the potential impact of the cancellation on his nieces and nephews had not been considered. The representations were contained in the ‘personal circumstances form’ he provided to the Minister subsequent to receiving the notice. The representation was made in the part of the form entitled “Minor children (children under 18 years of age)”, more specifically, in a subsection entitled “family details”. In response to a question requesting the applicant to number “how many other relatives you have in Australia or overseas”, he wrote “40” next to the field “Number of nieces/nephews”. No particulars were given concerning the extent if any of his relationship with those people or their names or other details.
The Minister adequately considered the submissions made by the applicant concerning his family and community ties. The Minister considered the financial contributions made by the applicant to his daughter, and the evidence concerning any connections the applicant had to the community. Similarly, the Minister considered the effect of cancellation on the applicant’s extended family, which relevantly includes nieces and nephews. The Minister’s generalised findings in this regard were sufficient in light of the minimal detail in the representation, especially in light of the fact that the applicant was afforded the opportunity to provide evidence of his family support and ties to the Australian community but did not avail himself of this. Accordingly, such findings were open to him. Further and in any event, the Minister ultimately found the applicant’s ties to the Australian community weighed in favour of revocation (at [61]). This ground too discloses no error.
Ground 7 states that it is ‘unfair’ that the Minister decided to deport the applicant despite his having no family in New Zealand. The Minister expressly considered how the lack of family and social support would affect the applicant if resoled to New Zealand. He accepted that there would be emotional and practical hardships for him. However, he found that the cultural and linguistic similarities between the nations had the result that these impediments were not ‘insurmountable’. Further, he found that the applicant has good prospects of being able to find work given his experience as a forklift driver. The applicant’s challenge on this ground goes squarely to the merits of the Minister’s decision. As I explained to the applicant at the case management hearing of this matter, such a critique is beyond the scope of judicial review unless irrational, unreasonable or illogical. Here, the finding does not nearly go so far.
Disposition
For the reasons given above, the proposed application lacks sufficient merit to allow an extension of time despite the short delay and lack of prejudice.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anastassiou. Associate:
Dated: 6 April 2020
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