Nuon v Minister for Home Affairs & Anor

[2023] HCATrans 176

[2023] HCATrans 176

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M72 of 2022

B e t w e e n -

SOMBEAU NUON

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

JUDGE OF THE FEDERAL COURT OF AUSTRALIA

Second Defendant

GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON WEDNESDAY, 22 NOVEMBER 2023, AT 10.59 AM

Copyright in the High Court of Australia

HER HONOUR:   By an application for constitutional or other writ filed on 26 October 2022, the plaintiff seeks orders in the nature of certiorari and mandamus against the first and second defendants.  For the reasons that I now publish, I make the following orders:

1.        The application be dismissed.

2.        The plaintiff pay the first defendant’s costs.

I publish those orders and I direct that the reasons as published be incorporated into the transcript.

Introduction

On 26 October 2022, the plaintiff filed an Application for Constitutional or Other Writ (“Application”), seeking relief in relation to a decision of a judge of the Federal Court of Australia, in June 2022, refusing the plaintiff’s application for an extension of time to bring proceedings for judicial review of a decision to cancel the plaintiff's visa (“cancellation decision”) under s 501(3) of the Migration Act 1958 (Cth) (“the Act”).[1] The cancellation decision was made by the then Minister for Home Affairs (“the Minister”) in March 2021. By virtue of s 477A(2) of the Act, the plaintiff required an extension of 108 days to seek judicial review of the cancellation decision.

[1]    Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653.

In his Application, the plaintiff relies on two grounds, namely that the primary judge: (1) misconceived the nature of the power to extend time under s 477A(2) of the Act and/or failed to consider whether his Honour was satisfied that it was “in the interests of the administration of justice” to extend time, that being a mandatory relevant consideration in exercising the power to extend time; and (2) failed to provide adequate reasons.

The parties agree that the Application cannot[2] or, alternatively, should not, be remitted to the Federal Court.

[2]    Judiciary Act 1903 (Cth), ss 39B, 44. See Re Jarman; Ex parte Cook (1997) 188 CLR 595 at 608-609.

In February 2023, the Application was deferred, at the parties’ request, pending the outcome of the plaintiff’s application for special leave to appeal from a judgment of a full court of the Federal Court of Australia delivered in December 2022.[3]  That judgment concerned the primary judge’s decision, also in June 2022, dismissing the plaintiff’s application for judicial review of a decision of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the cancellation decision (“non-revocation decision”).

[3]    Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 197.

On 11 August 2023, Kiefel CJ and I dismissed the plaintiff’s application for special leave to appeal.[4]  On 13 October 2023, the plaintiff’s lawyers wrote to the High Court Registry to confirm that, given the refusal of special leave, the plaintiff no longer sought to have the Application held in abeyance and requested that the matter proceed.  On 26 October 2023, the parties agreed that the application be determined on the papers, without an oral hearing.

[4] [2023] HCATrans 106.

Background to the primary judge’s refusal to extend time

The plaintiff is an intellectually disabled citizen of Cambodia who previously held a Class WA Subclass 010 Bridging visa.  The plaintiff arrived in Australia at 14 years of age.  Since then, he has committed numerous crimes.  Most relevantly, in 2018, he was convicted of various offences and sentenced by the Melbourne Children’s Court to be detained in a Youth Justice Centre for 18 months.[5]  The primary judge recorded that, on that occasion, the plaintiff was convicted of two charges of assault by kicking, possession of a controlled weapon without excuse, two charges of intentionally causing injury, two charges of robbery, affray, attempted robbery, committing an indictable offence while on bail, and unlawful assault.  The offences related to unprovoked attacks and robberies on tourists who had attended the Australian Open tennis championship.  One of the victims was put in an induced coma and ultimately required six plates to be inserted to connect the right side of his face to his skull, as well as two titanium plates in the left side.

[5]    Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653 at [5]-[7].

The Minister made the cancellation decision on the stated basis that the Minister “reasonably suspect[ed]” that the plaintiff did not pass the “character test” by the operation of s 501(6)(a) of the Act owing to his “substantial criminal record” and was satisfied that the cancellation was in the “national interest”.

Following the cancellation decision, the plaintiff made unsuccessful representations seeking revocation of that decision.  The non-revocation decision was made in July 2021.

The plaintiff then applied to the Federal Court for judicial review of the non-revocation decision and, in separate proceedings, for an extension of time to seek judicial review of the cancellation decision.  In February 2022, the primary judge heard the plaintiff’s two applications together.

Primary judge’s reasons

The primary judge recorded that[6] the Minister opposed the extension of time on two grounds.  As to the first, the plaintiff’s inadequate explanation for his delay, the primary judge was mistaken.  The Minister had withdrawn that ground of opposition.  Accordingly, the second ground, being the lack of merit of the proposed grounds of review, was the Minister’s sole ground of opposition.  The primary judge accepted that ground, stating that his Honour had come to the “clear view that the proposed grounds of review lack merit”,[7] and dismissed the extension of time application accordingly.[8]  His Honour gave detailed reasons for finding that each proposed ground of review had “no merit”.  The plaintiff does not contend that the primary judge erred in making any of those findings.

[6]    Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653 at [16].

[7]Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653 at [16].

[8]    Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653 at [159].

Extending time under s 477A(2) of the Act

Section 477A of the Act provides relevantly that:

“(1) An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(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.”

Section 477A(2) “entrusts to the Federal Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application”.[9]  In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, four members of this Court relevantly explained:[10]

[9]Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819 at 826 [19]; 403 ALR 604 at 610.

[10] (2022) 96 ALJR 819 at 824 [12]; 403 ALR 604 at 607-608.

“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.”

Ground 1: The primary judge misconceived the nature of the s 477A(2) power and/or failed to consider a mandatory relevant consideration in deciding not to extend time

The plaintiff contends that the primary judge failed to reach the required state of satisfaction about whether it was necessary in the interests of the administration of justice to extend time.  Instead, according to the plaintiff, his Honour was satisfied only that the proposed grounds lacked merit.  The plaintiff does not suggest that the primary judge’s findings that each of the proposed grounds of review had “no merit” could not have justified a refusal to extend time.[11]  Nor does the plaintiff explain how the primary judge might have reasoned to a conclusion that it was necessary (let alone appropriate) in the interests of the administration of justice to extend time to make an application for a remedy that, in the primary judge’s opinion, had no merit or was, in other words, hopeless.

[11]    cf WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]; Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14].

The plaintiff pointed to seven matters in support of his contention that the primary judge misconceived the nature of the power to extend time under s 477A(2) due to his failure to recognise that the power is concerned with what is necessary in the interests of the administration of justice and not merely prospects of success. In the alternative, the plaintiff argued that the primary judge’s failure in this respect was a failure to consider the sole mandatory consideration in exercising the s 477A(2) power, namely, whether the primary judge was satisfied that an extension of time was necessary in the interests of the administration of justice. For the following reasons, none of these matters, either separately or cumulatively, reveal either the claimed misconception or a failure to have regard to the mandatory relevant consideration. To the contrary, on examination, the primary judge’s reasons engage faithfully with the case presented by the plaintiff as to why an extension of time should be granted. In essence, that case was that the application had sufficient merit to satisfy the primary judge that it was necessary in the interests of the administration of justice to make the order extending time.

First, the plaintiff submitted that, at the hearing, the primary judge indicated a preference to hear submissions as to the merits.  That indication must be understood in its context which included that: (1) the plaintiff’s written submissions identified merit as “the most powerful matter weighing in favour of an extension of time”; (2) the plaintiff’s written submissions did not argue that an extension of time should be granted if the Court found that the proposed application had no merit; and (3) before the primary judge had indicated his intention to hear the parties solely on the merits, the plaintiff’s counsel accepted the proposal of the Minister’s counsel that the primary judge could “simply [hear] us on the merits of the proposed application”.  The primary judge’s indication therefore reflected the way that the plaintiff had put his case to that point.  That case reflected the short, if not inevitable, step in logic which leads from a conclusion as to lack of merit or, in other words, a finding that the application had no apparent prospect of success, to a failure to be satisfied that it was necessary in the interests of the administration of justice to extend time.

Secondly, the plaintiff notes that the primary judge’s reasons do not refer to the mandatory “interests of the administration of justice” criterion, nor to any authority providing guidance on that criterion.  Ordinarily, an omission to identify a relevant consideration may suggest a failure to consider that criterion.  However, nor did the plaintiff’s written submissions before his Honour refer to this criterion, except to refer to Federal Court authority that “it is likely to be in the interests of justice to ensure that an administrative decision affected by jurisdictional error and capable of depriving a person of liberty is not carried into effect”.[12]  The plaintiff’s case was that the merits of the case were determinative of whether an extension of time should be granted, with the implicit and logical acceptance that, if the plaintiff could not demonstrate any merit in his proposed application, then the extension of time should be refused.  The absence of a reference to the “interests of justice” criterion in the primary judge’s reasons is consistent with the case presented by the plaintiff and, accordingly, does not reveal a failure by the primary judge to consider that criterion, without more.

[12]    DYI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 612 at [37].

Thirdly, the plaintiff complains that the primary judge’s reasons do not refer to the plaintiff’s submissions other than on the merits.  However, as explained above, those submissions did not argue that, in the absence of merit, other matters would be sufficient for an extension of time.  The other matters pointed to by the plaintiff were:  (1) that an extension of time would not prejudice the Minister; and (2) the submission set out above concerning the interests of justice where a decision is affected by jurisdictional error.  Again, once the plaintiff’s case is understood, there is no reason to infer any misconception on the part of the primary judge from these omissions.

Fourthly, the plaintiff argues that the primary judge’s reasons do not refer to the evidence in support of the extension of time application.  The plaintiff notes that two of the three affidavits relied on by the plaintiff included evidence bearing upon matters other than the merits, namely the fact that the plaintiff was in detention and the explanation for his delay in seeking judicial review of the cancellation decision.  Neither of these omissions is significant in the face of the plaintiff’s case which focused on the merits of his proposed case.

Fifthly, the plaintiff relies upon the primary judge’s error in stating that the Minister opposed the extension of time on the basis that the plaintiff had not adequately explained his delay, whereas the Minister no longer sought to rely on this ground at the hearing. This error does not reveal any misconception on the primary judge’s part about the nature of the s 477A(2) power.

Sixthly, the plaintiff relies upon the primary judge’s omission to consider the adequacy of the plaintiff’s explanation for his delay. Accepting the possibility that an omission to consider an explanation for delay may, in some circumstances, reveal a misconception of the s 477A(2) power, the omission here is explained by the way that the plaintiff put his case, that is, on the basis that the merits would be determinative of his application. On that case, the adequacy of the explanation was only material if the proposed application was shown to have some prospect of success.

Finally, the plaintiff submits that the language of the primary judge’s assessment of the merits is suggestive of an assessment of the merits on a final basis rather than on the “cautious basis” suggested in the authorities as appropriate to the s 477A(2) task. I do not agree. The plaintiff did not identify any aspect of the primary judge’s reasons that was inconsistent with an analysis of whether the proposed grounds had any merit, such as a choice between competing arguments concerning any proposed ground of review.

Ground 2: Failure to provide adequate reasons

The plaintiff’s complaint is that the primary judge failed to expose the path of reasoning by which his assessment of the merits of the proposed grounds bore upon the ultimate question of whether his Honour was satisfied that it was “necessary in the interests of the administration of justice” to extend time pursuant to s 477A(2).

As the Minister submitted in this Court, it is uncontroversial that a requirement to provide reasons is an inherent aspect of the exercise of judicial power.[13]  The content of the judicial duty to give adequate reasons will depend upon the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision.[14]  It should not be assumed that reasons must be lengthy or elaborate in order to be adequate.[15]  In particular, it may be appropriate to provide relatively brief reasons for rejecting a party’s case depending on the circumstances of the case, including the detail and complexity of the submissions made.  What is “adequate” will depend on the facts and complexity of the particular case.[16]  A conclusion about inadequacy of reasons involves the balancing of number of factors, and close consideration of the specific circumstances.[17]

[13]    Wainohu v New South Wales (2011) 243 CLR 181 at 213-215 [54]-[58]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAMI7 (2021) 272 CLR 329 at 342 [22].

[14]    Wainohu v New South Wales (2011) 243 CLR 181 at 214-215 [56]; Thorne v Kennedy (2017) 263 CLR 85 at 111 [61].

[15]    Thorne v Kennedy (2017) 263 CLR 85 at 111 [61], citing Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443.

[16]    CIT17 v Minister for Immigration and Border Protection (2018) 265 FCR 572 at 583 [39], citing DL v The Queen (2018) 266 CLR 1 at 12-13 [33].

[17]    Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464 at 515 [191].

The primary judge’s path of reasoning to the decision to refuse to extend the time limit is clearly exposed in his written reasons.  His Honour made separate findings that each of the four proposed grounds of review and three sub-grounds of a fifth ground of review had no merit.  That is, his Honour did not find that those proposed grounds failed:  he found that they were doomed to fail.  Those were the reasons for his decision to refuse to extend time.  From those findings and the order made, it is obvious that his Honour applied a principle that the Court would not be satisfied that it was necessary in the interests of the administration of justice to extend time to file an application for judicial review where that application has no merit.  Absence of merit was a perfectly intelligible and sufficient explanation for rejecting the plaintiff's case for an extension of time.

Conclusion

The Application will be dismissed.  The plaintiff should pay the Minister’s costs of the Application.

Adjourn the Court, please.

AT 11.00 AM THE MATTER WAS CONCLUDED