Maukau and Minister for Immigration and Border Protection (Migration)

[2017] AATA 2194

Maukau and Minister for Immigration and Border Protection (Migration) [2017] AATA 2194 (20 October 2017)

Division:GENERAL DIVISION

File Number:           2017/5850

Re:Makell Maukau

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe

Date:20 October 2017

Date of written reasons:        17 November 2017

Place:Sydney

The applicant’s application for an extension of time to lodge an application for review of the decision of the respondent dated 4 March 2016 is refused.

........................[sgd]................................................

Deputy President Bernard J McCabe

CATCHWORDS

PRACTICE AND PROCEDURE – Application for extension of time to lodge application for review of decision of the respondent dated – Consideration of the reasons for delay, prejudice to the parties and prospects of success – Lack of prospect of success in the substantive case – Application refused

LEGISLATION

Migration Act 1985 (Cth), s 501CA

Administrative Appeals Tribunal Act 1975 (Cth), s 29

CASES

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344

SECONDARY MATERIALS

Direction No. 65 –Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Deputy President Bernard J McCabe

17 November 2017

1. Oral reasons were given at the conclusion of the hearing in this matter. The written reasons that follow have been distilled from the transcript.

2. This is an application brought under s 501CA of the Migration Act 1985 (Cth) to revoke the mandatory cancellation of the applicant’s visa.  There is no question that the visa cancellation was effective and that the discretion to revoke has been enlivened. 

3. The decision declining to revoke the cancellation was made on 4 March 2016, although it may not have been communicated to the applicant until 11 March 2016.  The applicant was incarcerated in prison for his most recent offences at the time.

4. The applicant was moved to immigration detention on or about 18 August 2017.  He instructed his lawyers at that point to look into the possibility of revoking the decision that had been made.  An application for review together with an application for an extension of time was filed with the Tribunal on 29 September 2017. 

5. Section 29(2) of the Administrative Appeals Tribunal Act1975 (Cth) requires that the applicant lodge an application for review within 28 day from the date the applicant is notified of the decision. Both parties accept the Tribunal may grant an extension of time in a case such as this where – in the words of s 29(7) – “it is reasonable in all the circumstances to do so.”

6. In deciding whether to grant an extension of time, the Tribunal must consider certain factors.  Cases such as Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 set out the principles to be applied in exercising discretion to accept an application for review that is out of time. These typically include:

   ·the reason for the delay and the question of whether or not the applicant rested on his rights;

   ·whether there has been or will be prejudice to the respondent if the matter is allowed to proceed;

   ·the consequences for the applicant if he does not get to challenge the decision at a final hearing;

   ·the consequences for other people - which in this case would include the applicant's mother; and

   ·the merits of the case.

7. In considering the merits of the substantive application, the Tribunal does not conduct a mini-trial.  The Tribunal need merely be satisfied there is an arguable case – in other words, that the applicant has some chance of success at the final hearing.

8. I turn firstly to the explanation for the delay. The applicant has explained through his representative that while he was given notice of the visa cancellation and promptly sought revocation of that decision, he received notice of the decision declining to revoke and did not take any further steps for some time. The applicant says he was under the impression as a consequence of interactions with people in the prison, including prison officers, that it was unlikely he would be removed from Australia in the circumstances. As a result he did not think it necessary to take the matter any further.   The applicant says he had a wake-up call when he was moved into immigration detention on 18 August 2017. Only at that point did he realise the seriousness of these proceedings and set about taking steps to bring an application before the Tribunal.

9. The explanation proffered by the applicant is not especially compelling.  The applicant has, in effect, rested on his rights.  However, I do allow for the fact that he was incarcerated and did not have access to legal advice at the time.  He had no-one other than perhaps the people around him in prison to provide information about the process.  He had access only to limited means of communicating with decision-makers and obtaining generalised information about what has gone on.  I also accept the submissions that the applicant may have experienced a degree of institutionalisation that made him disinclined to question decisions.  So while the explanation is not especially compelling, I do not think this consideration should weigh against him.

10. When it comes to concerns about prejudice, the respondent concedes there is unlikely to be any serious prejudice to the respondent if the matter goes ahead.  The matter can still be, from the respondent’s point of view at least, conducted fairly albeit with some additional expense.

11. If an extension of time is not granted, the prejudice for the applicant is that he is liable to be removed from the country without the opportunity of testing the merits of that decision. If that occurs and he is removed to New Zealand, his life and perhaps his mother's life will change fundamentally and permanently.

12. Being removed from the only home that one knows is no small matter.  It would be quite an extraordinary change for the applicant.  I note while he has lived in Australia since he was eight months of age, the last ten years or so appear to have been spent in prison. During this period of incarceration the applicant has not been in the community establishing roots. However, I accept that being removed from one's home – and that is what Australia is – and being denied the opportunity to return, is a significant matter.

13. This case ultimately turns on an assessment of the merits of the substantive application.  I must consider whether the applicant is likely to have some reasonable prospects of success at a final hearing. 

14. The Ministerial Direction (Direction 65) dictates how I should go about making a decision.  In particular Part C and the preamble to Direction 65 are relevant. I note the principles outlined at cl 6.3 refer to the very serious attachment that Australians have to ensuring that people who are non-citizens obey the law.

15. Direction 65 sets out a number of considerations which are identified as primary considerations and other considerations which carry less weight.

    Primary Consideration

16. The primary consideration regarding the best interest of minor children in Australia does not apply in this case because the Applicant has no children and there are no minor children that are likely to be affected.  That means the two primary considerations that would be considered are the protection of the Australian community and the expectations of the Australian community. 

17. The protection of the community consideration is divided into two parts.  One must look to the nature and the seriousness of the conduct – which is largely backward-looking – and the likelihood of further offending or serious conduct in the future and what sort of risk that poses to the Australian community if the applicant is allowed to stay.

18. The conduct referred to in the police certificate is very serious.  While there are some minor offences there are also a number of very serious offences which have attracted terms of imprisonment and have been part of a pattern of behaviour that appears to be both longstanding and escalating in seriousness.  It is a problematic record. The applicant says his conduct was powered by mental illness which was never properly treated, and was a function of age and an early engagement with the criminal justice system.  I was also told there was a measure of substance abuse which appears to have been quite serious.

19. It is likely the nature and seriousness of the applicant’s conduct would weigh reasonably heavily against revocation.

20. In terms of the risk to the Australian community, given that these offences occurred over a long period of time, are of escalating seriousness and included disciplinary infractions in prison, it would be difficult to be confident there would be no further offending. 

21. I note what the applicant's mother has said – and she says it from a place of some expertise given her professional qualifications – that there is some prospect of his mental illness being properly addressed now that he is a little bit older and she has the opportunity to assist.  This might mitigate the risk.

22. It is difficult of course, to know, given that he has been incarcerated for so long how he would behave in the community.  Would, for example, the applicant’s drug misuse resume?  Would he fall into the company of unsavoury characters? Those things are all unknown. 

23. So one has to be very concerned about the first consideration – the protection of the Australian community.

24. The expectations of the Australian community is a more complicated question.  The Australian community is regarded as being reasonably intolerant of serious offending.  The fact that the applicant has already had one warning in 2013 counts against him. An appeal for a second chance is harder to credit when, in fact, what the applicant is asking for is a third chance.

25. Against that, the community might be more patient if they were accepting that there was untreated mental illness.  Additionally, the community would be impressed by the fact that the applicant has been here since he was eight months of age.  Indeed the community might well think that if the applicant is a problem he is a problem for the Australian community.  By contrast, the community may say in relation to a person with similar offending who has arrived recently, "we do not need to import crime, we've got enough of it here."

    Other Consideration

26. In terms of the other considerations – there are no non-refoulement obligations, the decision to cancel the applicant’s visa is unlikely to impact on Australian business interests and there is no evidence about the impact on victims.

27. However, the strength, nature and duration of the applicant’s ties are relevant.  The ties the applicant has with his mother appear to be very strong and she appears to be keen to have him stay.  I was told the applicant’s mother has an expectation that if he were to stay and to clean up his act that he might be able to provide aid and comfort to her as she becomes more advanced in years.

28. While those ties are strong and familiar in nature, I note there are not many other community ties of that strength and intensity.  I have already mentioned the fact there are no children.  The ties to the community, such as they are, are longstanding but have been limited by the applicant’s long period of incarceration.

29. There are likely to be limited impediments if the applicant is removed.  New Zealand is a first world country with good quality medical care.  The language and culture are not so different to Australia that it would pose an obstacle.  Nor is that country far away so as to impede contact.  I accept that because the applicant has spent almost his entire life in Australia he is not familiar with anyone in New Zealand.  Any family ties that might exist in New Zealand are likely to be more distant and he is not going to have the care and support of his mother which he would have if he were in Australia.

    Conclusion

30. While I acknowledge in particular the long duration of the applicant’s ties to Australia which would weigh heavily in his favour or, at least, ameliorate some of the concerns the Australian community have, the first primary consideration would likely weigh very heavily against him at a hearing.  The expectations of the Australian community would be perhaps less vigorously held than they might be in other circumstances but the Australian community, when one has regard to the values pointed out in Direction 65, would probably still look askance at a decision to allow the applicant to stay notwithstanding the very close nature of the relationship with his mother.  I expect the family and other ties are not such that they would outweigh those primary considerations.

31. The evidence before me suggests the applicant has very limited prospects of succeeding at a final hearing. I acknowledge he may yet adduce evidence that would allow him to flesh out any claims he might make, but it is difficult to see him adducing enough evidence that would balance out the negative considerations I have already identified.  On balance it would be unreasonable to put him through a process that is unlikely to be successful.  The best thing for the applicant may well be for him to take this opportunity to spend whatever time he can in contact with his mother and for these proceedings to be drawn to an end so that the applicant has some clarity and can start planning for the future.

32. Accordingly, the extension of time request is refused.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe.

..............................[sgd]..........................................

Associate

Dated: 17 November 2017

Date of hearing:	20 October 2017
Solicitors for the Applicant:	Ms W Schmid
Solicitors for the Respondent:	Minter Ellison