Kambo v Minister for Home Affairs

[2019] FCCA 2841

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAMBO v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2841

Catchwords:
MIGRATION – Whether the Tribunal failed to exercise jurisdiction to consider an application – whether the Delegate’s decision is reviewable – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(e)(ii), 347 and 348

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5(1)(e)

Cases cited:

SZJDS v Minister for Immigration and Citizenship (2012) 210 FCR 1

Applicant: PAUL KAMBO

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 89 of 2018

Judgment of: Judge McNab

Hearing date: 19 September 2019

Date of Last Submission: 19 September 2019

Delivered at: Melbourne

Delivered on: 19 September 2019

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondent: Mr Cunynghame

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the applicant be granted leave to amend the application to:

   (a)join the Administrative Appeals Tribunal as a party; and then

   (b)the grounds of the application be amended to include a ground that “the tribunal was in error in failing to exercise jurisdiction to consider the application,” and

   (c)to include an application to extend time pursuant to section 477.

2. That the application for an extension of time be dismissed.

3. That the applicant pay the first respondent’s costs fixed in the sum of $3,737.

4. That these orders become operative upon the publication of reasons, and the time for filing any appeal be extended to 14 days after the date of publication of these reasons.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 89 of 2018

PAUL KAMBO

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

Introduction

1. This matter came before the Federal Circuit Court of Australia with the applicant appearing by telephone from detention in Western Australia.

2. The applicant filed an application on 15 January 2018 seeking an extension of time to seek judicial review of a decision of a delegate (‘Delegate’) of the first respondent (‘Minister’).

3. The Delegate’s decision, dated 14 January 2016, cancelled the applicant’s subclass 487 Skilled Visa pursuant to s 116 of the Migration Act 1958 (Cth) (‘the Act’).

4. There is an element of confusion in the way that the applicant has applied to the Court. The grounds of his application seek review pursuant to s 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) of a decision of the Delegate of the Minister.

5. The Minister has submitted that the Court has no jurisdiction to review the Delegate’s decision.

6. In the course of the hearing today, the applicant asked the Court to make orders requiring the Administrative Appeals Tribunal (‘Tribunal’) to reconsider its decision to dismiss his application on jurisdictional grounds, and to reconsider his case.

7. The Minister consented to the applicant amending the application to join the Tribunal as a party to the proceeding. The Minister has also consented to the applicant including a ground of review that the Tribunal failed to exercise jurisdiction to consider his application. By that application, the applicant applied to have the Minister revoke the mandatory visa cancellation.

8. I grant leave to amend the application in those terms.

Background

1. The background of this matter is, in a large part, accurately set out in the Minister’s written submissions, and I adopt that background provided as follows.

2. On 18 November 2013, the applicant was granted a visa as a dependent of his spouse.

3. On 6 January 2015, the Department of Immigration and Border Protection (‘Department’) issued the applicant with a Notice of Intention to Consider Cancellation (‘NOICC’).

4. The NOICC was issued on the basis there appeared to be grounds for cancellation under s 116(1)(e)(ii) of the Act. The Department considered that the applicant’s presence in Australia is or may be, would or might be, a risk to the safety of an individual or individuals. The Department said it was satisfied that the applicant’s presence may be a risk to an individual or individuals because he had been charged with 15 offences, including Contravening Family Violence Final Intervention Order. The NOICC informed the applicant that his ‘presence might be a risk to the individual or individuals who has a Family Violence Final Intervention Order against you’.

5. By that letter of 6 January 2016, the applicant was asked to respond to the application within five working days.

6. On 12 January 2016, lawyers appointed by the applicant wrote to the Officer dealing with the application in the following terms:

   We advise we act on behalf of Paul Kambo and have now read your letter to him of the 6 January 2016.

   Please note our client was remanded in Custody by Geelong Magistrates' Court on the 5 January 2016 and he is next before the Court for a plea of guilty to be given on matters of breaches of Intervention Order and other matters on the 10 February 2016.

   Given that he remains in custody at the present time, he is in no position to properly respond to the matters raised in your letter. He has indicated that he wishes to put forward matters to you against the proposal to cancel his Visa under the Migration Act 1958.

   We therefore ask that further consideration of any intention to cancel his Visa be deferred until a suggested date of the 18 March 2016.

   We await hearing from you on this point.

7. The Department did not respond to the solicitor, but instead responded to the applicant notifying him on 14 January 2016 that a decision had been made to cancel the visa.

8. The Court takes issue with the summary prepared by the Minister in some respects. The Minister’s submission provided that:

   The applicant was invited to respond within five working days. Despite acknowledging receipt of the NOICC, the applicant did not respond to the NOICC within five working days or at all.

   The Court does not accept that the Applicant made no response at all to the letter of 6 January 2016.

9. The decision record which addresses the guidelines that are required to be addressed before cancelling the visa, make comment throughout to the effect that there was no information before the Department as to why the grounds should be engaged. For instance, under the heading ‘The degree of hardship that may be caused to the visa holder and any family members’, the response is:

   There is no information before me of any degree of hardship that may be caused to the visa holder and any family members.

10. There is no reference in the Delegate’s decision to the applicant’s express requests made by his legal representatives to have an opportunity to put material before the decision-maker.

11. The applicant was in prison at the time of the Delegate’s decision, and on 20 January 2016, he lodged an application to the Tribunal. The letter was addressed from the Department of Justice Victoria, Corrections Victoria, and included reference to a request for revocation of a mandatory visa cancellation.

12. The application includes, in handwriting, the following reasons for revoking the decision:

    I have lived in Australia for eight years. I have two sons. I believe my wife wishes to continue our relationship.

    The police have taken out an intervention order against me. I do not believe the marriage is over.

    The allegations against me are unfounded. I am next in court on 10 February 2016.

13. On 11 February 2016, the Tribunal wrote to the applicant acknowledging receipt of the application.

14. On 17 February 2016, the Tribunal again wrote to the applicant at HM Melbourne Assessment Prison advising (omitting irrelevant parts) that:

    I am writing in relation to the application for review made by you in respect of a decision to cancel your Subclass 487 (Skilled - Regional Sponsored) visa.

    I am of the view that your application is not a valid application as the application fee has not been paid. In addition, I am of the view that your application is not a valid application as it was not made in the approved form. The approved form in this case Form M1 - Application Form Migration (Design date 07/15) However, this is a matter which must be determined by a Member.

    If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 2 March 2016. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.

15. On 22 March 2016, the Tribunal found that there had not been a valid application as the approved form had not been used. The Tribunal referred to the Full Federal Court’s decision of SZJDS v Minister for Immigration and Citizenship (2012) 210 FCR 1 at [34] and [63] (‘SZJDS’). The Tribunal stated that SZJDS held that sections 347 and 348 of the Act require an application for review of a Part 5-reviewable decision be made in approved form, and that there is no scope for partial or substantial compliance with the requirement to use the approved form. The Tribunal stated that if the approved form is not used, there will not be a valid application.

16. The Tribunal noted that the Tribunal officer wrote to the applicant on 17 February 2016 inviting comment. At [9] of the decision record, the Tribunal notes that the applicant did not respond to the Tribunal’s invitation to comment by 2 March 2016 or at all.

17. The Tribunal’s case notes have been provided in the Court Book. These case notes indicate that the applicant’s address changed from Melbourne to West Melbourne in response to a data integrity report and in accordance with Australia Post records. Another part of the case notes – dated 22 March 2016 – states as follows:

    Contacted HM Melbourne Assessment Prison to confirm RA's contact address. I spoke to Mr Watts prison officer who stated that the RA was no longer in HM Melbourne Assessment Prison, however was located at another facility. I noted that with Tribunal procedures that correspondence is to be sent to the last know address of the RA this being 317 Spencer street West Melbourne fax number […] phone: […] and the correspondence be provided to the RA. Mr Watts stated that they were unable to assist with this matter and I would need call back tomorrow between 8:30am and 9:00am to speak to the senior prison officer who would be able to assist with this matter.

18. A case note dated 23 March 2016 states:

    As per discussions with the [Team Leader], it has been decided that the tribunal will not pursue the RA for a new address as the tribunal has met the notification requirements as it stands. The tribunal has notified the RA at the last known address provided to the tribunal for the purpose of the review.

Consideration

1. The Minister’s submissions filed in Court put that:

   a)there is no error in the decision of the Tribunal and that the decision of the Delegate is non-reviewable; and

   b)any application for an extension of time to review the decision of the Tribunal should be refused on the grounds that there is no error apparent in the decision of the Tribunal such that would justify an extension of time.

   This submission is made in the context that the application has been amended to seek review of the Tribunal’s decision.

2. The Minister submits that the Tribunal correctly understood and correctly applied the Full Court authority of SZJDS in finding that the application was invalid and that there was no basis to find that there was any error in that decision.

3. There are aspects of this case that the Court finds concerning, and this is not intended as any criticism of the Minister or the Minister’s representative before the Court.

4. It is troubling that the Delegate made a decision to cancel the visa in circumstances where a solicitor was on the record acting for the applicant and that solicitor had provided a clear and cogent basis for an extension of time in which to provide material to the Delegate. Further material would have allowed the Delegate to properly consider the grounds for cancellation and undertake an assessment against the guidelines in a meaningful way.

5. The submission that there was no information before the Delegate is only correct because the applicant was not allowed further time to put material before the Delegate. In a case where the applicant has been in Australia for 8 years and is married with two children presently aged 11 and 13, it would seem appropriate to undertake some inquiry as to the best interests of the children and the applicant’s relationship with them and the impact of the applicant’s removal on his family (particularly the children).

6. I am also concerned that the Tribunal proceeded to dismiss the application in circumstances where it knew that it was likely that the applicant had not received notice of the letter of 17 February 2016, notwithstanding that it may have satisfied the requirements of the Act in terms of notice.

7. I was told this day by the applicant that he cannot read or write in English. The applicant said that a prison officer assisted him to download and fill out the form that was lodged. The Tribunal may not have been aware of these matters and this may not affect the outcome of the matter, but it does lead to a feeling that the system may have operated harshly in this matter

8. I cannot discern that there is any legal error in the decision of the Tribunal such that would provide a basis for the Court to exercise its discretion to extend time, and accordingly, must dismiss the application. I accept the submissions that SZJDS is binding authority for the proposition that an application for review must be in the correct form. That the applicant could not read or write in English and relied on a prison officer to download a form and was unaware that the wrong form was lodged, apparently does not provide a proper basis for the Court to set aside the decision.

Conclusion

1. For the previous reasons, the application will be dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:  

Date:  8 October 2019