Nevili v Minister for Home Affairs

[2019] FCCA 33

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEVILI v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 33

Catchwords:
MIGRATION – Application for extension of time – substantive application seeking review of the decision of the Administrative Appeals Tribunal – no satisfactory explanation for the delay – lack of merit of the substantive application – not in the interests of the administration of justice to extend time – extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.476, 477

Cases cited:

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236

FCR 442

SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77;

(2016) 238 FCR 456

MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201;

(2016) 154 ALD 316

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110;

(2016) 152 ALD 478

Ahmed v Minister for Immigration and Border Protection [2016] FCA 751

SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR

344

Minister for Immigration and  Border Protection v SZVFW [2018] HCA 30;

(2018) 92 ALJR 713

Minister for Immigration and Citizenship v Li [2013] HCA 332; (2013) 249

CLR 332

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11;

(2016) 237 FCR 1

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240

CLR 611

Applicant: KETI JUNIOR NEVILI

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2356 of 2018

Judgment of: Judge Nicholls

Hearing date: 26 October 2018

Date of Last Submission: 14 November 2018

Delivered at: Sydney

Delivered on: 9 January 2019

REPRESENTATION

For the Applicant: In person

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 8 August 2018 seeking an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.

2. The applicant pay the first respondent’s costs set in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2356 of 2018

KETI JUNIOR NEVILI

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 8 August 2018 seeking an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) within which to make a competent application pursuant to s.476 of the Act, for judicial review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 2 July 2018. On this date, the Tribunal affirmed the decision of a delegate of the Minister made on 5 July 2017 to cancel the applicant’s Subclass 444 visa (“the visa”) pursuant to s.116 of the Act.

2. The evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court book” – “CB”, “RE1”).  I note that a document (“affidavit”) was sent by the applicant to the Court’s Registry on 16 August 2018 relating to the Tribunal decision made by member Michael Cooke which was quashed by order of the Court.  This does not appear to have been accepted for filing in these proceedings.  In any event it is not relevant to these proceedings.  I note also another affidavit made by the applicant on 8 August 2018 which accompanied the application to the Court.

Background

1. On or around 18 April 2017, the applicant, a New Zealand citizen born July 1999, was arrested for “Robbery armed with an offensive weapon” (CB 1). Subsequently, on 7 June 2017, a “Notice of Intention to Consider Cancellation Under Section 116 of the Migration Act1958” (“NOICC”) was issued by a delegate of the Minister (CB 20 to CB 23).

2. The visa was cancelled on 5 July 2017 pursuant to s.116(1)(e)(i) of the Act (CB 27 to CB 36).

3. The applicant sought review by the Tribunal of that decision to cancel the visa (CB 43 to CB 53 and CB 76 to CB 86).  The applicant gave evidence and presented argument before the Tribunal (as previously constituted) on 3 October 2017 (CB 105 to CB 107 and CB 128 to CB 130).  On 11 October 2017, the Tribunal affirmed the delegate’s decision (CB 146 to CB 152).  On 19 March 2018, by orders made by consent, the decision was set aside in this Court and the matter was returned to the Tribunal (CB 156 to CB 157).

4. On 2 July 2018, the applicant attended a further hearing before the Tribunal (differently constituted) (CB 168 to CB 170).  The Tribunal affirmed the delegate’s decision on 2 July 2018 (CB 190 to CB 197).  He was notified of the decision through a letter sent by email on 3 July 2018 (CB 185 to CB 197).  It is this decision that is the subject of the proposed substantive application to the Court.

Before the Court  

1. On 5 September 2018 the parties appeared before this Court.  The applicant appeared in person.  The Minister was represented by a solicitor.  On this day, the applicant was given leave to file an amended proposed substantive application and any additional evidence by way of affidavit.  The applicant did not file any documents pursuant to these orders.

2. Orders were also made that the parties file written submissions.  The Minister filed written submissions on 18 October 2018.  The applicant was urged to see if he could obtain legal advice.  The applicant did not file any written submissions in relation to that opportunity.

3. At the hearing of the extension of time on 26 October 2018, the applicant appeared in person.  The Minister was represented by counsel.

4. Although not entirely clear, it appeared that the applicant sought an adjournment of the hearing.  In essence, he appeared to say that he wanted more time to arrange and obtain legal advice.  The Minister opposed the adjournment request.

5. I refused the applicant’s request for an adjournment (if this is what the applicant sought).  None of the applicant’s assertions before the Court were presented in any appropriate evidentiary context.  But even accepting what the applicant said, the applicant has had ample time to apply for legal aid and failed to satisfactorily explain why he did not do so in the time available.  Even after the previous occasion (5 September 2018) when he appeared before the Court, the Court put the applicant specifically on notice that it would be of benefit to him to obtain legal advice, the applicant apparently has done nothing in this regard.  This occurred in circumstances where the applicant appeared in Court with a large group of what appeared to be family and supporters. 

6. I could not be satisfied in the circumstances that any further adjournment would result in the applicant taking action to seek legal advice.  In any event, as set out elsewhere in this judgment, it is not apparent that even with the benefit of legal advice, the applicant would be able to identify any proposed ground with sufficient merit such as to argue for the extension of time.

7. As set out above, on a previous occasion before the Court, I had urged the applicant to see if he could obtain legal advice, if only to explain to him the nature of these proceedings.

8. At the hearing it was clear that the applicant had not sought legal advice, and continued to press his claims to remain in Australia.  He was accompanied to the Court by what were clearly a large group of family and supporters.

9. Notwithstanding that I refused the adjournment, I gave the applicant the opportunity to file subsequent written submissions.  I told him if he wanted to seek legal advice he could do so in relation to the written submissions.

10. The applicant did file written submissions.  However it is clear he, again, did not, or was unable to, obtain legal advice.

11. The submissions refer to various parts of the Tribunal’s decision.  But they do not assert, let alone identify, any jurisdictional error.  The submissions merely repeat the approach taken by the applicant at the hearing.  That is, he seeks impermissible merits review from the Court (see further below).

The Application for an Extension of Time

1. Given the evidence before the Court, there is no dispute that the Tribunal’s decision was made on 2 July 2018. Section 477(1) of the Act requires that an application made to this Court pursuant to s.476 of the Act seeking review of a Tribunal decision, must be made within 35 days of the date of that Tribunal decision.

2. In the current circumstances, any such application to this Court must have been made on or before 6 August 2018. The applicant’s application to the Court appears to have been lodged on 8 August 2018. That is, it appears to have been made 2 days after the last date by which it could have been made so as to comply with s.477(1) of the Act.

3. In the circumstances, the purported application said to have been made pursuant to s.476 of the Act is not competent.

4. However, s.477(2) of the Act provides that, nonetheless, an applicant may apply to this Court, in writing, for an order from this Court to extend time for the filing of an application pursuant to s.476 of the Act, if it is in the interests of the administration of justice to do so. I am satisfied on what is before the Court, that the applicant has made such an application in writing.

5. The grounds of the application to extend time appear to be as follows:

   “1. Faxed application on the 8/8/2018/19/7/2018/serial no – A7AK041000062

   2. Federal Court stated that they received my application.”

6. In a document containing the applicant’s application for the extension of time, and the proposed substantive application, under the heading “Ground of application”, the applicant stated as follows:

   “I filed my application within 35 days but was told that it wasn’t received.”

7. The issue for the Court now is whether it is in the interests of the administration of justice to extend time.  The factors to be considered in relation to the question of the extension of time are not exhaustive. 

8. However, there are a large number of authorities which provide guidance to this Court, as to how to approach the consideration contemplated by s.477(2) of the Act (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442, SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456, MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201; (2016) 154 ALD 316, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478, Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 and SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 see also Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at [18] – [23]).

9. In the current case, the factors arising from the circumstances presented, in considering the exercise of the discretion, appear to be the length of the delay, whether any satisfactory or reasonable explanation has been given for the delay, whether the Minister would suffer any prejudice if time were extended.

10. Further, and primarily, whether the proposed substantive application for judicial review is sufficiently, or reasonably, arguable, or has reasonable prospects of success, or has such merit as to justify the extension of time, to allow the matter to proceed to a final hearing in the interests of the administration of justice.  In deciding whether to grant an application for anthe extension of time, the grounds of the proposed substantive application should have such prospects of success so as not to render the extension of time an exercise in futility.

11. On the evidence before the Court, the substantive application was received by the Court on 8 August 2018. The application was therefore two days out of the time set out at s.477(1) of the Act.

12. At the hearing the applicant read from a prepared statement.  In essence, his submissions were no more than a restatement of his claims before the Tribunal and reasons as to why he should be allowed to remain in Australia.  (See further below).

13. I note that in his application document the applicant states he faxed the application on 8 August 2018.  This is consistent with the Court’s record that that was the date when the application was lodged electronically and accepted for filing on the same date.

14. This would confirm, therefore, that the application was lodged two days late.  There is reference in the applicant’s application to a document faxed on 19 July 2018, but at best this appears to be linked to an earlier Tribunal decision.  (See also the applicant’s undated affidavit filed on 8 August 2018).

15. The period of delay is not long.  However it cannot be said that the applicant has provided a reasonable explanation for this delay in any evidentiary context.  In any event, and importantly, there is no legal merit in the grounds of the proposed substantive application, such as to warrant the extension of time.

The Proposed Substantive Application

1. The grounds of the proposed substantive application are in the following terms:

   “This application is made under section 476A of the Migration Act 1958.

   The Applicant was notified on 17/05/2017 of the decision that is the subject of this application.

   Details of relief sought

   1. Not to revoke my visa cancellation.

   2. I was a juvenile at the times of my charges and do not carry a adult charge due to me being detained in Villawood Detention Centre, even before I turned 18 yrs of age, which makes me a Juvenile and should not be in a Adult centre full of Murderers, Rapist and Paedophiles, to me this is a lacking duty of care, as I am a youth around violent adult criminals, who don't hesitate to tell you as it is, and wouldn't mind re-offending, due to the calibre of their history.

   Grounds of application

   1. I was in a Juvenile Justice Detention Centre when I had received my cancellation for my visa, I filed an application for the Administrative, Appeals and Tribunal, which I went to court on the 2nd of July 2018, as of which the minister of Immigration affirmed there decision not to revoke my visa. As the evidence reads my charges laid against me were committed as a Juvenile. I have no real family support, ever since my parents had broken their relationship, I was bought to another country which left me feeling stranded and lost, so I started going on downward spiral and was not coping well with my parents break up. This lead me into a Rebellious path and in feeling the darkest I've ever felt in life, as I did not have both parents, this made me not care about life as much as I should of,  So in my defence me being a teen or should I say a Juvenile, I should at least have the chance to have a second go in my future life in Australia, because in my opinion I believe I would have a great future and would be a good role model in the future for the next generation.”

2. Before the Court, the applicant stated essentially as follows.  One, he was not sure why he was at Court.  Two, his father received some unidentified letter which appeared to be related to financial issues that the applicant said had impacted on his capacity to obtain legal advice.  Although not entirely clear, it appeared that the applicant sought a further adjournment of the hearing for the extension of time (see above).  Three, the applicant stated that he was not seeking to justify his past behaviour.  Nonetheless he sought that the Court allow him to remain in Australia.  Four, the Tribunal made a “legal error” because it relied on information from the police.  As can be seen the applicant’s submissions before the Court “mirror” the grounds of the proposed substantive application.  These matters are addressed variously below.

3. The applicant’s proposed grounds of the proposed substantive application is, in essence, a restatement of his claims before the Tribunal.  In short it seeks impermissible merits review.  Importantly it does not assert any jurisdictional error on the part of the Tribunal.  This Court has no power to intervene to substitute its own findings of fact for those of the Tribunal.

4. In the circumstances time should not be extended.  It is not in the interests of the administration of justice to extend time to consider grounds which are hopeless and cannot succeed.

5. There is “nothing illogical or irrational” about the conclusion made by the Tribunal that the applicant’s residence in Australia is, or may be a risk, to the safety of Australian society, and hence warranted cancellation of the visa under s.116(1)(e)(i) of the Act.

6. Further, the basis of the Tribunal’s decision is plainly justified and within the scope of the power conferred: Minister for Immigration and  Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 at [10]-[14] (Kiefel CJ), [53]-[54] (Gageler J), [82] and [86] (Nettle and Gordon JJ) and at [135] (Edelman J); Minister for Immigration and Citizenship v Li [2013] HCA 332; (2013) 249 CLR 332 at [76].

7. The Minister referred to Allsop CJ in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21], to submit that the relevant question is “whether a decision-maker could reasonably come to the conclusion” reached. The Minister submitted that another Tribunal could reasonably have come to the decision reached in this case.

8. Before the Court the applicant made various assertions regarding the Tribunal’s decision.

9. One, that the Tribunal failed to deal with his claim that at the time he committed the offences he was a juvenile and that now (that is before the Tribunal) he had achieved a level of maturity.  Contrary to the applicant’s assertion the Tribunal did deal with this claim, at [13] (CB 193) the Tribunal made specific reference to the applicant’s oral evidence to it that “he was young when he committed the offences and he is now more mature.” 

10. The Tribunal did not accept that evidence and gave reasons for not doing so.  The Tribunal’s reasoning considered the applicant’s claims in this regard, but made findings probative of the evidence which were reasonably open to it, and which explained its findings.  There is no merit in this complaint.

11. Two, the Tribunal did not understand his family circumstances.  It is clear when regard is had to [19] – [20] and [22] – [26] (at CB 194 to CB 195) of its decision record, the Tribunal did consider the applicant’s claims regarding his parental and family situation.  In essence, the applicant’s complaint that the Tribunal did not “consider”, is, in the circumstances, a complaint that the Tribunal did not “accept”, that these were circumstances such that it should have determined that the applicant should be able to remain in Australia.  There is no merit in this complaint.

12. Three, the Tribunal disregarded certain evidence.  This appeared to be directed to his criminal record.  In particular, that the Tribunal did not take into account that some of the charges had been withdrawn.  The Tribunal set out the evidence before the delegate as to the number of charges made against the applicant and their disposition (see [8] at CB 192).  Contrary to the applicant’s assertion that the Tribunal did not have regard to this evidence, it specifically stated that it “notes that the applicant has been charged with several offences although many of the charges have been dismissed or withdrawn” ([14] at CB 193). 

13. In essence what is set out at [14] (at CB 193) of the Tribunal’s decision record is the Tribunal’s evaluation of the remainder of the charges for which he was convicted.  The Tribunal concluded in this regard: “…the Tribunal is concerned that even if the applicant has made a genuine commitment to reform and not to engage in criminal conduct in the future, he may find it difficult to do that if he is influenced by others to either behave in a particular way or to consume alcohol which may lead to such behaviour”.

14. Further at [15] – [16] (CB 193):

    15. The Tribunal places weight on the fact that the convictions representing criminal or antisocial behaviour occurred over a period of time. This was not a one off incident when the applicant realised he was doing wrong and changed his conduct. He had engaged in such conduct repeatedly without apparently making any attempt to reform. The Tribunal also notes that the most recent conviction is a very serious one when the applicant appears to have used a weapon to commit robbery. While the Tribunal acknowledges the applicant’s evidence to Ms Hopkins that he never used weapons before and is not a violent person, it appears that the applicant had diminished control over his actions when intoxicated.

    16. The Tribunal considers the conduct that lead to the convictions to be very serious. The fact that such conduct occurred over a number of years, the applicant repeatedly engaged in criminal behaviour and the nature of his conduct involved violence towards another person, all suggest to the Tribunal that the applicant’s presence in Australia is or may be a risk to the good order of the Australian community or a segment of the community.

1. Four, the Tribunal disregarded certain evidence or misunderstood information before it.  This appeared to be a reference to the circumstances concerning the applicant’s latest conviction for a criminal offence in 2017. 

2. On the evidence before the Court, the Tribunal considered the circumstances of that offence which involved the applicant threatening the manager of a brothel with a knife and demanding money.  The Tribunal’s account at [7] (at CB 191) of its decision record is consistent with the New South Wales Police “Facts Sheet” reproduced at CB 3 to CB 7.  In essence the applicant again seeks impermissible merits review.

3. Five, the applicant claimed before the Court that he should be allowed to remain in Australia so that he could assist his mother and siblings.  Further, that he had now rehabilitated himself and that his behaviour while in immigration detention had been “good”.  In all, again this could not be said to be anything more than a request for the Court to engage in impermissible merits review.

4. Six, that the Tribunal did not properly consider his circumstances in a “fair way”.  As the Minister submitted, the Tribunal properly addressed the matters arising for consideration of the exercise of its discretion.  In particular, it engaged in an appropriate weighing of the relevant factors before it.  These included factors in favour of setting aside the decision to cancel the applicant’s visa (in particular see [34] – [37] (CB 196 to CB 197) of the Tribunal’s decision record).  As the Minister submits, the weight to be given to evidence is a matter for the Tribunal.  The Tribunal’s reasoning cannot be said to indicate any lack of logic or reasonableness (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131] and [135]). The Tribunal’s finding, its conclusion, was reasonably open to it, and it gave an intelligible explanation for it. Again, the applicant’s complaint does not rise above a request for impermissible merits review.

Conclusion

1. In all, the applicant has not provided a satisfactory explanation for the delay in making his application to the Court. Although the period of delay is short, the lack of a reasonable explanation stands in favour of not exercising the discretion in s.477(2).

2. However, what is of far greater weight, is the lack of merit in the applicant’s proposed substantive application, and the applicant’s oral and written submissions.  It is appropriate therefore to refuse the extension of time.  I will make that order.  

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  9 January 2019