Okoh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 209
Federal Circuit and Family Court of Australia
(DIVISION 2)
Okoh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 209
File number(s): DNG 5 of 2022 Judgment of: JUDGE YOUNG Date of judgment: 21 March 2023 Catchwords: MIGRATION- application for judicial review of a decision of the AAT to refuse a visa to the applicant and secondary applicants –– where the Tribunal refused an adjournment of the secondary applicant’s application while the primary applicant’s application was pending - where the primary applicant’s mandatory visa cancellation was revoked – where it is asserted that the decision to refuse an adjournment was unreasonable – where the Tribunal has mischaracterised what it was being asked to do – the application is granted – certiorari and mandamus to issue Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 2A(b)
Migration Act 1958 (Cth) s 501
Cases cited: Li v The Minister for Immigration and Citizenship (2013) 240 CLR 332
Tohi v The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of hearing: 20 February 2023 Place: Darwin Counsel for the Applicant: Mr McComber Solicitor for the Applicant: Sentry Law Counsel for the Respondent: Mr Kay Hoyle Solicitor for the Respondent: Clayton Utz ORDERS
DNG 5 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMENAGHAWON BLOSSOM OKOH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
21 March 2023
THE COURT ORDERS THAT:
1.The name of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs be amended to the Minister for Immigration, Citizenship, and Multicultural Affairs.
2.A writ of certiorari issue directed to the second respondent quashing its decision dated 18 January 2022.
3.A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicant’s application for review made on 21 February 2022 according to law.
4.The first respondent pay the applicant’s costs in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Ex TemporeJudge Young
This is an application for review of a decision of the Administrative Appeals Tribunal made on 18 January 2022 to affirm a decision of the Minister’s delegate made on 10 January 2020 to refuse a visa to the applicant and her children as secondary applicants to Ms Okoh’s husband’s application for a Skilled Nominated (Permanent) Subclass 190 Visa. It appears to be common ground that Ms Okoh’s husband, Mr Okoh, was convicted of a criminal offence at some point and his bridging visa, which apparently was in position while his substantive visa application was being considered, was revoked pursuant to section 501 of the Migration Act.
Under the provisions of the Migration Act, while Mr Okoh’s visa was revoked the visa application of Mrs Okoh and her children could not succeed, such were the provisions of the Act. Mr Okoh applied to the Minister to cancel the revocation. The grounds put forward to the Minister are not before me. The Minister’s delegate refused the application to cancel the revocation and an application was made by Mr Okoh to the AAT for merits review of that decision and as at 18 January 2022 the application by Mr Okoh was pending.
The visa applications of Mrs Okoh and the children were refused by the delegate as was required by the Act. There was an application for merits review before the Tribunal, differently constituted I assume but I do not know, for merits review of that decision. The Tribunal on 18 January refused an application for adjournment by Mrs Okoh and the children even though, at that stage, the application by Mr Okoh for cancellation of his revocation was still pending. Given that the Tribunal refused the adjournment, the Tribunal was obliged by virtue of the operation of the Act to affirm the decision of the delegate to refuse Ms Okoh’s visa application.
Mr Okoh’s application for revocation of the cancellation was successful on 29 August 2022. The revocation decision made on that date meant that the application of Mr Okoh was revived as if it had never been cancelled. It followed, by virtue of the operation of the Act, that it was not a necessary requirement that the application of Mrs Okoh and the children must be refused.
The application to this court by Ms Okoh, the first applicant, and the other applicants, her children, essentially asserts that the decision of the Tribunal on 18 January 2022 to refuse an adjournment was unreasonable in circumstances where an adjournment until sometime after a decision was made in relation to Mr Okoh’s application to revoke the cancellation of his visa could have a determinative effect on her application. If the cancellation was revoked, then it would potentially mean that her application and the applications of her children might be successful.
The Tribunal took the view, and I am summarising, that there had been a failure to comply with practice directions as to filing material. That does not seem to be in dispute, though what material could be filed is a little unclear. Mr Kay Hoyle for the Minister said that the material that ought to have been put before the Tribunal on 18 January was some material that might have some bearing on the Tribunal’s ability to make an assessment about whether the application for an adjournment was one of substance or not. In other words, to provide some material that might give some indication, however slight, about the likely decision or potential range of decisions in relation to the application for revocation of the cancellation.
If I have understood Mr Kay Hoyle’s submission correctly, I consider that it is unlikely that the applicant on 18 January would have been able to put very much information to the Tribunal about the prospects of revocation of the cancellation decision. I know nothing about the incidence of revocation of cancellation decisions but I think it is agreed that the cancellation of Mr Okoh’s visa followed a conviction for a criminal offence and that criminal offence must, by virtue of the Act, have been a serious one involving a significant period of imprisonment- at least 12 months is my understanding of the Act, but I do not know what period of imprisonment was imposed.
In those circumstances, I think it is perhaps a counsel of perfection to suggest that the applicants ought to have been able to provide some information to the Tribunal to let the Tribunal assess the prospects of a favourable decision. I do not think that is ever likely to have been possible. The applicants made two applications in writing for adjournment to the Tribunal. The hearing before the Tribunal was first set down on 14 October 2021. On 1 September 2021 the applicant’s legal representative, Mr McComber, wrote to the Tribunal seeking an adjournment. The basis of the adjournment was set out, that is, that there was an application for revocation of Mr Okoh’s visa underway and the effect of that, if favourable, would remove the condition that made it mandatory to refuse the visas of Ms Okoh and the children.
It is not in question that the explanation offered by Mr McComber was legally accurate. At that point, Mr McComber said that he expected to receive a decision on the application of Mr Okoh “in the near future” and he went on to say that he hoped that would be before the end of the year, that is, before the end of 2021. The Tribunal acceded to that request apparently and the matter was set down for a new hearing on 16 November 2021. That is an adjournment of a little more than 28 days. On 15 November Mr McComber wrote again, obviously aware that no decision had been made on the revocation application and sought a further adjournment, again setting out the legal framework which made it evident that the decision on Mr Okoh’s application was likely to be of the utmost significance for the application before the Tribunal. In other words, without a revocation, the Tribunal’s decision was a foregone conclusion.
If there was a revocation, there would appear to be a proper basis and, indeed, probably an expectation that the application of Ms Okoh and the children would be successful. The matter was then set down for hearing on 18 January 2022. It appears that there was a further request for adjournment at that stage, though it is unclear to me whether that was made in writing or orally but the Tribunal certainly refers to one. The Tribunal sets out its reasoning in relation to its decision to refuse the adjournment which meant, of course, that the application of Mrs Okoh and the children must also be refused because the cancellation of Mr Okoh’s visa stood at that time.
After referring to Tohi v The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at 167 the Tribunal characterised the adjournment application as follows:
“The applicant relies on this case to, in effect, seek limitless adjournments of this matter in the Tribunal until Mr Okoh’s visa status is finalised.”
The Tribunal went on to say that it was “sympathetic to aspects of this submission where further relevant information may have become available to it in a reasonable timeframe, as evidenced by the adjournments already granted”. The Tribunal went on to say, however, that it had to consider its objectives as described under the Administrative Appeals Tribunal Act and, in particular, that it provided a mechanism review “that is to be fair, just, economical, informal and quick” and that was “proportionate to the importance and complexity of the matter”.
The Tribunal noted that it had granted several adjournments. There appear to have been two relatively short adjournments granted and there was a further delay apparently because the Tribunal was not available on a particular date. The applicant says, in circumstances where there was a proper basis for seeking an adjournment, that is, that some other event was likely to be determinative or at least highly significant in relation to the application before the Tribunal, that it was unreasonable not to grant an adjournment for a reasonable period.
The applicant’s counsel said that it ought to be assumed that the application before the Minister by Mr Okoh would be finalised within a reasonable time. Obviously, there was no definite timeframe for that decision, as the Act did not require a timeframe, but Mr McComber said that, as a matter of law, a decision must be made within a reasonable time and he implied that were it not made within a reasonable time then relief in the nature of mandamus would be available. I generally agree with that submission. Mr Kay Hoyle, for the Minister, said in submissions that the concerns of the Tribunal and the analysis of the Tribunal was open to it and, therefore, was reasonable.
Mr Kay Hoyle said in submissions that the timeframe for a decision by the Minister or the Minister’s delegate, in relation to the application for revocation of Mr Okoh’s visa, was “uncertain” and, in language he himself acknowledged was somewhat colourful he said that the applicants were simply seeking to put the matter in the “deep freeze”. While I think it is possible to characterise the application of the applicants before the Tribunal as wanting to put the matter in the deep freeze it was not in the deep freeze forever. Any adjournment might be considered as deep freeze, particularly an adjournment that waits on some other event.
Mr Kay Hoyle said that the timeframe was “uncertain”. I acknowledge that word is probably accurate as well. However, whether or not the event would occur was not uncertain. That is, it was certain there would be a decision of some kind by the Minister. In my view, it could be, and ought to have been, accepted by the Tribunal that that decision would be made within a reasonable time, having regard to the nature of the application and the complexities involved. The Tribunal, in my view, in characterising the applicant’s application for adjournment as to “seek limitless adjournments” of this matter was not accurate.
The limit, of course, was that there would be a decision at some time in the future. It could be expected that the decision would be made within a reasonable time having regard to the nature of the application. It might be that a further adjournment would be necessary, or further adjournments, but they were not limitless. The timeframe, of course, for the resolution of Mr Okoh’s application was limited. It was uncertain but it was limited. A decision would be made at some point. The Tribunal was quite right to point to section 2A(b) of the AAT Act which required it to make decisions that were fair, just, economical, informal and quick.
However, the Tribunal was not required to make a quick decision that might be unfair. Naturally, there is a balancing to be undertaken according to the circumstances of any case as to which of those matters is to be given preponderance but each of them must be taken into account. Mr Kay Hoyle, in submissions, relied on the High Court decision in Li v The Minister for Immigration and Citizenship (2013) 240 CLR 332. Mr Kay Hoyle referred to the following paragraph:
82It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course, it may decide, in an appropriate case, that “enough is enough”, but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.
In that case, in the decision of French CJ at paragraphs [23] to [25], his Honour discusses the exercise of a statutory discretion such as a discretion to grant or refuse an adjournment. It is said that the discretion is confined by the subject matter, scope and purpose of the legislation and where the discretion is conferred on a judicial or administrative officer without definition of the grounds upon which it is to be exercised then “the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.” That view, however, must be reached by a process of reason.
In this case, I am satisfied that the Tribunal has mischaracterised what it was being asked to do. It was not being asked to adjourn the matter for a “limitless” period. It was not being asked to do what was described in paragraph [82] in Li, providing endless opportunities for an applicant to bring forward new evidence. The relevant factor was defined, that is, the decision of the Minister. It could be assumed to be likely to be made within a reasonable time and it was likely to be determinative of the application before the Tribunal. I consider that the reasonable response of the Tribunal in those circumstances was to accede to the application for adjournment.
Mr Kay Hoyle submitted that the fact that we know as a result of the unfolding of time – that is, that the revocation application was granted on 29 August 2022 – has no bearing on the reasonableness of the Tribunal’s decision which must be assessed according to the circumstances before the Tribunal and the matters that were known to the Tribunal at that time. I accept that submission. However, the fact that the decision to revoke Mr Okoh’s cancellation was made a little more than seven months later, in my view, emphasises that the period was not limitless, the adjournments were not limitless, and while the period in which the decision would be likely to be made was uncertain, it was made within a reasonable period as was required by law.
The application will be granted and writs in the nature of certiorari and mandamus will issue.
The respondent is to pay the applicant’s costs in the amount of $8,371.30
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 21 March 2023
0
1
0