KVRK v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FCA 698
•26 June 2024
FEDERAL COURT OF AUSTRALIA
KVRK v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 698
Application for extension of time: Administrative Appeals Tribunal decision delivered on 30 November 2023 by Deputy President A Younes File number: NSD 88 of 2024 Judgment of: NICHOLAS J Date of judgment: 26 June 2024 Catchwords: MIGRATION – whether applicant should be granted an extension of time pursuant to s 477A(2) of the Migration Act 1958 (Cth) – where Minister does not point to specific prejudice – where delay explained – where proposed grounds of review not reasonably arguable
Held: application for extension of time dismissed
Legislation: Migration Act 1958 (Cth) ss 189, 196, 198, 477A, 499(1), 501(3A), 501(6)(a), 501(7), 501CA(3A) 501CA(4)
Federal Court Rules 2011 (Cth) r 31.23
Cases cited: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 35 Date of hearing: 26 June 2024 Counsel for the Applicant: The applicant did not appear Counsel for the First Respondent: Ms Z Heger with Mr J Birrell Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
NSD 88 of 2024 BETWEEN: KVRK
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
NICHOLAS J
DATE OF ORDER:
26 JUNE 2024
THE COURT ORDERS THAT:
1.The Application for an Extension of Time dated 29 January 2024 be dismissed.
2.The applicant pay the first 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
(Revised from Transcript)NICHOLAS J:
BACKGROUND
Before the Court is an application for an extension of time under r 31.23 of the Federal Court Rules 2011 (Cth) (“FCR”) to file an application for review of a decision of the Administrative Appeals Tribunal (“Tribunal”) dated 30 November 2023. By its decision, the Tribunal affirmed the decision of a delegate of the first respondent (“the Minister”) made on 6 September 2023 not to revoke the cancellation of the applicant’s Class XB Subclass 202 Global Special Humanitarian visa (“the Humanitarian Visa”) under s 501CA(4) of the Migration Act1958 (Cth) (“the Act”). An application for an extension of time was required because no application for review of the Tribunal’s decision was made within 35 days of the date of the Tribunal’s decision as required by s 477A(1) of the Act.
The Court has power to grant to the applicant an extension of time pursuant to s 477A(2) of the Act if the requirements of that provision are met. Section 477A (2) provides:
(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.
The operation of s 477A was considered by the High Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579. Referring to s 477A(2)(b), Kiefel CJ, Gageler, Keane and Gleeson JJ said at [12]:
On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
(Footnotes omitted). See also Gordon, Edelman and Steward JJ at [40].
The Minister accepts that the requirements of s 477A(2)(a) are satisfied. The focus of the Minister's submission was on s 477A(2)(b), which requires that the Court be satisfied that it is necessary in the interests of the administration of justice to make an order extending the 35 day time period.
Before turning to consider the application for an extension of time, the applicant’s explanation for the delay, his proposed grounds of review, and other matters relevant to the question arising under s 477A(2)(b), it is necessary to say more concerning the background of the present application.
The application for an extension of time is dated 29 January 2024 at which time the applicant was represented by a solicitor. His application was supported by an affidavit made by his solicitor on 29 January 2024 annexing a copy of the Tribunal’s decision and indicating that the applicant’s application for review of the Tribunal’s decision was drafted by counsel.
The affidavit included an explanation as to why the application was not filed within 35 days of the Tribunal’s decision. Among other things, there was a difficulty in obtaining counsel’s advice in relation to the proposed application which, according to the applicant’s solicitor, raised complex issues. The solicitor also referred to the fact that the applicant was in immigration detention and impecunious, and that he had difficulty finding counsel willing to act for him during the Christmas and New Year period.
The proceeding was fixed for hearing on 26 June 2024. On 13 June 2024 the proceeding was listed for a case management hearing at the Minister’s request after he became aware that the applicant’s solicitors were proposing to cease to act. That was confirmed at the case management hearing held on that date. Arrangements were made for the applicant to attend the case management hearing via video link, which he did. Counsel for the applicant who appeared at the case management hearing indicated that his client intended to proceed with his application but requested that the Court refer him to pro bono counsel under the Pro Bono Referral Scheme. I declined that request. A notice of ceasing to act was lodged by the applicant’s solicitor on 24 June 2024 in accordance with the FCR.
The matter came on for hearing today. Communications received from the immigration detention facility indicated that the applicant declined to appear at the today’s hearing via video link, or, as best I can tell, at all. The matter was adjourned for a short time to enable the Minister's legal representatives to communicate directly with the applicant to advise him that the hearing may proceed in his absence and to allow him an opportunity to reconsider his decision not to appear. There was no response to those communications. I decided to proceed with the hearing of the application for an extension of time.
The applicant was born in Iraq in January 1994. In March 2015, at the age of 21, he arrived in Australia as a holder of the Humanitarian Visa. He was convicted in the Liverpool Local Court on 17 January 2022 of having supplied a prohibited drug in a commercial quantity and sentenced to a term of imprisonment of 14 months, with a non-parole period of seven months.
On 9 February 2022, acting pursuant to s 501CA(3A) of the Act, a delegate for the Minister cancelled the Humanitarian Visa. On 23 February 2023, the applicant made representations to the Minister requesting revocation of the cancellation decision. On 6 September 2023, a delegate of the Minister decided not to revoke the cancellation decision. On 11 September 2023, the applicant applied to the Tribunal for a review of that decision.
THE TRIBUNAL’S DECISION
The Tribunal referred to s 501(3A) of the Act which relevantly provides:
(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.
The Tribunal noted that, under s 501(6)(a) of the Act, a person does not pass the “character test” if that person has a “substantial criminal record”. For the purpose of the character test, a “substantial criminal record” is defined in s 501(7) of the Act. A person has a substantial criminal record if (inter alia) that person has been sentenced to a term of imprisonment of 12 months or more. In the present case it is not in dispute that the applicant has, by reason of the sentence imposed on him on 17 January 2022, a substantial criminal record.
The Tribunal also referred to s 501CA(4) which provides:
(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.
The Tribunal also referred to Ministerial Direction No. 99 given pursuant to s 499(1) of the Act (“the Direction”). The Tribunal referred to the Direction in detail including the considerations identified in paras 8 and 9 which relevant decision-makers must take into account.
The Tribunal gave consideration to the applicant’s criminal history and the seriousness of his conduct. The Tribunal referred to various convictions recorded against the applicant in the period 18 March 2019 to 17 January 2022. These included the conviction recorded on 17 January 2022 to which I have referred, and three other convictions recorded on that date, including for assault and for stalking/intimidation, for which he received an aggregate 18 month community correction order. They also included a conviction recorded on 9 June 2020 at the Liverpool Local Court for assault occasioning actual bodily harm for which the applicant was sentenced to a 12 month community correction order.
The circumstances resulting in the various convictions recorded against the applicant were considered by the Tribunal in detail. The Tribunal found that there has been repeated violence committed by the applicant against women with whom he had intimate personal relationships. It noted that he had threatened to kill the sister of one such woman after she reported him to police, in a telephone conversation overhead by police.
The Tribunal also considered explanations proffered by the applicant at the hearing for his criminal conduct including the fact that he suffered from a drug addiction. The Tribunal expressed the opinion that the applicant’s evidence reflected a lack of insight about violence and appropriate social conduct towards others in the community. It noted that the applicant had been involved in violent behaviour, including assault occasioning actual bodily harm, and that there was a trend of increasing seriousness in the applicant’s offending, as well as the frequency of his offending. The Tribunal also noted that the drug offence for which he was imprisoned was committed at a time when the applicant was on bail for domestic violence charges. The Tribunal found that the nature and seriousness of the applicant’s criminal offending weighed heavily against revocation of the cancellation decision.
The Tribunal then considered the risk to the Australian community should the applicant commit further offences or engage in other serious conduct. It considered the evidence of the applicant and also evidence given by a clinical psychologist who had provided the applicant treatment and counselling to address his mental health, including his PTSD. After a detailed consideration of the psychologist’s evidence, the Tribunal stated that it was satisfied that the applicant’s recovery was ongoing but there was still a considerable way for it to go, and that he therefore presented an unacceptable risk to the community. The Tribunal found the protection of the Australian community consideration weighed heavily against revocation of the cancellation decision.
The Tribunal also considered whether the conduct engaged in by the applicant constituted family violence. It concluded that at least some of his conduct constituted family violence. The Tribunal stated that it viewed the applicant’s family violence very seriously, and found that this was a consideration that weighed heavily against revocation.
The Tribunal also considered the strength, nature and duration of the applicant’s ties to Australia. It referred to the applicant’s family in Australia including a son born in March 2019. The Tribunal accepted that the applicant’s main family and other ties are in Australia, and that non-revocation would have an adverse impact on his family including his mother. However, it also noted that the applicant had not spent his formative years in Australia, and that he commenced offending about four years after his arrival in Australia. It found that the applicant’s ties to Australia should be given some weight in favour of revocation.
The Tribunal also took into account the best interests of the applicant’s children. In this context it referred to his son but also various nieces and nephews. The Tribunal concluded that it was satisfied it was in the best interests of the minor children for the applicant to remain in Australia and that this was a consideration that weighed in favour of revocation. However, it also expressed reservations concerning his relationship, or potential relationship, with the minor children based on his drug and behavioural problems and, with respect to his son, it questioned the applicant’s ability to play a positive parental role.
The Tribunal then turned to consider the expectations of the Australian community. The Tribunal noted that it was satisfied the applicant had committed serious offences involving family violence, and that he had been involved in the supply of illicit drugs. It was satisfied the Australian community expects that the Australian Government should not revoke the cancellation of the Humanitarian Visa because his conduct was serious, and he did not spend his formative years in Australia. The Tribunal gave significant weight to the expectations of the Australian community which it was satisfied weighed against revocation.
The Tribunal gave consideration to other matters, including the legal consequence of the decision. It considered the possibility of the applicant applying for a protection visa, which he said he intended to do if the non-revocation decision was not set aside. The Tribunal said that it had decided to defer the assessment of whether the applicant is owed protection obligations on the basis it was open to the applicant to lodge an application for a protection visa, in which event non-refoulment obligations would need to be considered. The Tribunal also considered submissions made by the parties in relation to the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005. The Tribunal did not consider the case relevant in circumstances where the removal obligation under s 198 of the Act could not apply whilst any application for a protection visa was under consideration, and that the applicant would lawfully remain in immigration detention under ss 189 and 196 of the Act until determination of any such application.
The Tribunal noted that, regardless of whether the applicant applied for a protection visa, he would face a period of detention which would have an adverse impact on his mental health including his PTSD. The Tribunal found that this was a consideration that weighed in favour of revocation.
The Tribunal then turned to consider the extent of any impediments that the applicant may face if removed from Australia to Iraq in establishing himself and maintaining basic living standards, taking into account the applicant’s age and health, whether there was a substantial language or cultural barrier, and any social, medical and economic support available to him in Iraq. The Tribunal stated at [115]:
The Applicant is 29 years old and he speaks Arabic. He has employment skills. He lived in Iraq until he was about 19 years old. There are no linguistic or social barriers if the Applicant is returned to Iraq.
The Tribunal referred to submissions made by the applicant that, as a Sabean-Mandean, the applicant would face substantial impediments in Iraq. In support of those submissions the applicant relied on a Department of Foreign Affairs and Trade (“DFAT”) country report for Iraq dated 16 January 2023 which, according to the Tribunal at [116], stated:
… Sabean-Mandeans experience discrimination, slurs and negative stereotypes, as well as being targeted for attacks and kidnappings due to their perceived wealth and vulnerability. The submissions noted that DFAT’s report states that like other minorities, Sabean-Mandeans face a moderate risk of societal discrimination and violence in areas where they are a minority, including as targets of violent crime, kidnapping and extortion.
The Tribunal referred to the DFAT report in some detail. It then said at [118]-[121]:
118.The Tribunal accepts that if returned to Iraq, the Applicant could face discrimination, violence, slurs, negative stereotyping, target for being perceived to be wealthy, all of which could impact on his ability in establishing himself, including finding employment, housing, and social support. The Applicant has no family support in Iraq.
119.The Tribunal accepts that the Applicant has health issues, including injures from the bombing, PTSD and drug dependency. The Applicant could face difficulties in obtaining treatment and possibly discrimination due to his mental health.
120.The Tribunal has considered the Applicant’s circumstances very carefully and is satisfied that there are notable impediments, which are difficult to overcome.
121.On balance, the Tribunal gives this consideration significant weight in favour of revocation.
The Tribunal’s conclusion at [129] was as follows:
The process of a visa cancellation is complex and is not intended to be a formulaic, or a simple aggregation of the relevant considerations. On balance, although there are aspects in favour of revocation, the aspects against revocation outweigh those in favour. The protection of the Australian community, which encompasses the seriousness and nature of the Applicant’s offending conduct and the risk of reoffending, the conduct engaged in constituted family violence, as well as the expectations of the Australian community, weigh heavily against revocation. The strength, nature and duration of the Applicant’s ties, the best interests of minor children, the legal consequence of the decision, and the extent of impediments if removed, are each in the Applicant’s favour. However, the cumulative weight of these considerations does not outweigh the significant cumulative weight of the considerations weighing against revocation.
THE PROPOSED GROUNDS OF REVIEW
The applicant’s proposed grounds of review are directed at what are said to be inconsistences in the Tribunal’s consideration of impediments that the applicant would face if he was returned to Iraq. In particular, the grounds point to inconsistency between the statement at [115] that there are no social barriers in the way of the applicant’s return to Iraq, and the statements in [118] which accept that the applicant could face discrimination, violence, slurs and negative stereotyping, and that he could be targeted based on a perception that he was wealthy. The grounds assert that these findings involve a logical contradiction and that the Tribunal’s decision is illogical or irrational.
CONSIDERATION
On a fair reading of the Tribunal’s reasons as a whole, there is no contradiction. The statement in [115] must be read in the context of the preceding sentences in that paragraph which refer to the applicant’s age, language spoken, and employment skills. The reference to social barriers is to be understood as referring to potential impediments associated with those matters. The Tribunal went on to consider the significance of the applicant’s Sabean-Mandean faith which, as it acknowledged at [118], could impact him. Although [115] could have been worded more clearly to indicate the specific considerations leading to the relevant statement, it does not provide any basis for concluding that the Tribunal’s decision was legally unreasonable.
In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Allsop CJ, Griffiths and Wigney JJ), Allsop CJ explained at [11] that when reviewing a decision for legal unreasonableness:
… [T]he decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power…
To the extent it might be considered that there is an apparent inconsistency between the finding in [115] and what appears in [118], it is not an inconsistency which is capable of justifying a finding that the Tribunal’s decision was legally unreasonable. When the Tribunal’s reasons are read as a whole it is clear that the decision is entirely logical and one that a rational decision-maker could have made on the same material.
In circumstances where the Minister has not pointed to any specific prejudice arising from the applicant’s delay, and where the solicitor’s affidavit contains what I would regard as a reasonable explanation for the delay, I would be minded to grant the extension of time sought if satisfied that the proposed grounds of review were reasonably arguable. However, in my opinion, they are not reasonably arguable. In the circumstances, I am not satisfied that it is necessary in the interests of the administration of justice to grant the extension of time sought.
DISPOSITION
The application for an extension of time must be dismissed. The applicant must pay the first respondent’s costs of and incidental to the application.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas. Associate:
Dated: 2 July 2024
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