NIMO v Minister for Immigration

[2020] FCCA 2734

FEDERAL CIRCUIT COURT OF AUSTRALIA

NIMO v MINISTER FOR IMMIGRATION [2020] FCCA 2734

Catchwords:
MIGRATION – Application for interlocutory injunction to restrain the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs from deporting the applicant – substantive application being an extension of time application seeking a declaration that the Minister has not considered the applicant’s request to revoke the cancellation of his Class TY Special Category (subclass 444) visa and seeking mandamus requiring the Minister to consider the revocation request – the Minister alleging that the applicant was given notice of cancellation on 4 March 2020 – the applicant denying that he received the notice on that date – the applicant subsequently seeking revocation of the cancellation – the Minister alleging request for revocation was out of time and the Minister was unable to consider it – the ground of cancellation being that the applicant was imprisoned for 12 months – sentence subsequently reduced on appeal to eight months.

Legislation:
Migration Act 1958, ss.477, 500(1)(b), 500(4A)(c), 501(3A), (6), (7), (10), 501CA (1), (3), (4), (7)
Migration Regulations 1994, reg.2.52

Applicant: NIMO NIMO

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File number: MLG 3286 of 2020

Judgment of: Judge Riley

Hearing date: 28 September 2020

Date of last submission: 28 September 2020

Delivered at: Melbourne

Delivered on: 5 October 2020

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the respondent: David Brown

Solicitors for the respondent: Australian Government Solicitor

ORDERS

1. The respondent be restrained from removing the applicant from the Commonwealth of Australia pending the final determination of the application filed on 10 September 2020.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3286 of 2020

NIMO NIMO

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an interlocutory application for an injunction to restrain the Minister from removing the applicant from Australia pending the final determination of the substantive application. The substantive application is an application for an extension of time in which to bring an application for a declaration that the Minister has not considered the applicant’s request to revoke the cancellation of the applicant’s visa and for mandamus requiring the Minister to perform his duties under s.501CA(4) of the Migration Act 1958 (“the Act”) according to law. 

2. Basically, the Minister cancelled the applicant’s class TY special category subclass 444 visa on the grounds that the applicant had been convicted of certain offences and sentenced to imprisonment for 12 months. The applicant had 28 days from notification of the cancellation decision to make submissions seeking revocation of the cancellation. The parties are in dispute about whether the applicant was given notice of the cancellation decision on 4 March 2020.  Subsequently, the applicant’s sentence was reduced on appeal to eight months. The applicant then requested revocation of the cancellation decision. A delegate of the Minister said the revocation request was out of time and he was unable to consider it. The Minister then gave the applicant a notice of intention to remove him to New Zealand.

3. The Minister accepted that this court has jurisdiction in this matter.

Legislation

1. Section 501 of the Act relevantly provides that:

   …

   (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

   … 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.

   …

   (6)For the purposes of this section, a person does not pass the character test if:

   (a)the person has a substantial criminal record (as defined by subsection (7)); or

   …

   (7)For the purposes of the character test, a person has a substantial criminal record if:

   …

   (c)the person has been sentenced to a term of imprisonment of 12 months or more; or

   …

   …

   (10)For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:

   (a)the conviction concerned has been quashed or otherwise nullified; or

   (b)both:

   (i)     the person has been pardoned in relation to the conviction concerned; and

   (ii)    the effect of that pardon is that the person is taken never to have been convicted of the offence.

   …

2. Section 501CA of the Act relevantly provides that:

   (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

   …

   (3)As soon as practicable after making the original decision, the Minister must:

   (a)give the person, in the way that the  Minister considers appropriate in the circumstances:

   (i)     a written notice that sets out the original decision; and

   (ii)    particulars of the relevant information; and

   (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

   (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.

   …

   (7)A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 of 7.

3. Regulation 2.52 of the Migration Regulations 1994 (“the Regulations”) relevantly provides that:

   (1)This regulation applies to representations made to the Minister under paragraphs 501C(3)(b) and 501CA(3)(b) of the Act.

   (2)The representations must be made:

   ...

   (b)for a representation under paragraph 501CA(3)(b) of the Act – within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(b) of the Act.

4. From these provisions, it can be seen that, if the applicant had originally been sentenced to eight months imprisonment, as the appeal court found he should have been, the Minister could not have cancelled the applicant’s visa on the ground that the applicant had been sentenced to 12 months or more in prison, and the question of revocation would never have arisen.

Chronology

1. The applicant is a national of New Zealand. He arrived in Australia on 21 April 2012 as the holder of a Class TY Subclass 444 Special Category (Temporary) visa.

2. On 3 December 2019 (on the applicant’s material) or 14 January 2020 (on the Minister’s material), the applicant was sentenced at Sunshine Magistrates’ Court to 12 months imprisonment for various offences.

3. The Minister claimed that, on 4 March 2020, he gave the applicant notice under that his visa had been cancelled under s.501(3A) of the Act and told him that he had 28 days to seek revocation of the cancellation decision.

4. The Minister claimed that the notification documents were provided to the applicant in prison. The Minister produced an acknowledgement of receipt of the documents which purports to have been signed by the applicant in the presence of a prison officer: see the last page of annexure MAJ-2 to the affidavit of Melinda Anne Jackson dated 10 September 2020.

5. However, the applicant told this court that it was not his signature that appeared on that document, and that he did not sign it.  The implication was that someone had forged his signature.  The applicant said that he did not receive the documents on 4 March 2020, and that is why he did not seek revocation of the cancellation decision within the stipulated 28 days.

6. On 6 April 2020, the County Court of Victoria, on appeal, reduced the applicant’s sentence to eight months.

7. According to an internal departmental email dated 11 May 2020, the applicant asked a departmental officer for the cancellation paperwork to be reissued, saying that he had lost the documents in prison, and saying that his sentence had been reduced to eight months: see annexure MAJ-3 to the affidavit of Melinda Anne Jackson dated 10 September 2020.

8. Later on 11 May 2020, a copy of the cancellation documents were given to the applicant: see annexure MAJ-4 to the affidavit of Melinda Anne Jackson dated 10 September 2020. The applicant acknowledged to this court that he received those documents. He made a revocation request dated 23 June 2020, which seems not to have been forwarded by the prison to the department until 29 June 2020: see annexure MAJ-6 to the affidavit of Melinda Anne Jackson dated 10 September 2020. The revocation request included evidence that the applicant’s sentence had been reduced to eight months imprisonment. 

9. On 1 July 2020, a departmental officer decided that the revocation request was made out of time. The Minister did not consider it.

10. On 5 July 2020, the applicant was taken into immigration detention. On 4 September 2020, he was given notice of intention to remove him from Australia.

11. The application to this court was filed on 10 September 2020. On that day, orders were made restraining the Minister from deporting the applicant until further order of the court, and for the Minister to file material. 

12. The matter returned to court on 11 September 2020, at which time it emerged that the applicant’s sentence had been reduced to eight months.  The Minister was given time to file written submissions on the consequences of the sentence reduction, in circumstances where the original visa cancellation was on the ground that the applicant had been sentenced to imprisonment for 12 months or more.

13. The matter returned to court on 28 September 2020, at which time argument was heard on the interlocutory application. On that date, the matter was listed for hearing of the application for an extension of time and, if granted, the substantive application, on 26 October 2020, and judgment on the interlocutory application was reserved. The previous restraint on the Minister deporting the applicant continued.

Consideration

1. This is an application for an interlocutory injunction. As such, the questions are whether the applicant has a reasonably arguable case and the balance of convenience.

2. The balance of convenience strongly favors the applicant. It is difficult to see how he could return to Australia, particularly in times of the COVID-19 pandemic, if he were ultimately successful in his substantive application. The Minister did not point to any balance of convenience issues affecting him.

3. The applicant has sought an extension of time in which to seek review of the cancellation decision made on 4 March 2020. Under s.477 of the Act, the applicant had 35 days to bring that application. That time expired on or about 8 April 2020. The applicant filed his application in this court on 10 September 2020, so he was about five months out of time.

4. The applicant explained his delay on the basis that he was in immigration detention and unable to access legal assistance. The Minister, so far, has not directly addressed the extension of time issue. It seems to me to be reasonably arguable that the applicant would get an extension of time when the matter is determined on 26 October 2020, subject to the merits of the substantive issues.

5. The Minister’s argument was essentially that the Minister’s satisfaction that the applicant was sentenced to 12 months imprisonment was factually correct when it was decided to cancel the applicant’s visa, and it was harsh but made no difference that the critical fact on which the cancellation decision was founded, namely, that the applicant was sentenced to imprisonment for 12 months, was later set aside on appeal.

6. The Minister also argued that there may have been other reasons as well that supported the cancellation decision. This argument is speculative and unsupported by evidence. I cannot take it into account.

7. The applicant faces a number of legal impediments. Unlike most cancellation decisions, a cancellation under s.501(3A) of the Act, such as this one, is not reviewable by the Administrative Appeals Tribunal: s.500(1)(b) and s.500(4A)(c) of the Act.

8. The Minister must cancel a visa if the holder is sentenced to 12 months or more in prison: s.501(3A)(a)(i) and s.501(3A)(7)(c) of the Act.

9. Under s.501(10) of the Act, the Minister is to disregard a sentence or conviction if the conviction has been quashed or otherwise nullified. In the present case, the sentence was reduced, but the conviction itself was not nullified.

10. Under s.501CA(4) of the Act, the Minister must consider a revocation request that is made in accordance with the invitation to make representations, and that invitation must be in accordance with the regulations. They require that the representations be made within 28 days of the notification of the cancellation.

11. At this stage, it appears to me that there are two points that provide a reasonably arguable basis for the applicant’s substantive claim.

12. The first is that there is a factual dispute about whether the applicant received the notification on 4 March 2020. In general, the court is unable to resolve a factual dispute at an interlocutory hearing. I do not consider that the claim that the applicant did not receive the notification on 4 March 2020 can be rejected out of hand. That claim requires the court to see the relevant people give evidence in the witness box.

13. The second point is that the factual substratum on which the cancellation decision was based, being a sentence of imprisonment of 12 months, no longer exists, as the sentence was reduced on appeal. It is difficult to see how the Parliament could have intended that a person’s visa could be cancelled, and the person could be deported, where the critical fact on which the cancellation was based ceased to exist prior to the proposed deportation.

14. Subsection 501(10) of the Act shows that the Parliament was cognisant that convictions are sometimes overturned on appeal. However, the scheme of the Act and the Regulations reveals no recognition that it is moderately common for sentences to be reduced on appeal. Obviously, if the Minister cancels a visa before the appeal process has concluded, it is possible for a gross injustice to be perpetrated.

15. While the Act requires that the revocation request be made within the period specified in the Regulations, it is reasonably arguable that reg.2.52(2) of the Regulations is unreasonable, and is susceptible to be being struck down. A more reasonable regulation would have provided something like:

    The representations must be made:

    …

    (b)for a representation under paragraph 501CA(3)(b) of the Act:

    (i)within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act; or

    (ii)within 60 days after the person’s sentence of imprisonment has been reduced on appeal to a period of less than 12 months.

16. These are matters for final hearing. However, at present, there seems to me to be enough to continue the injunction until then. There will be an order accordingly.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date: 5 October 2020