Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 314
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 314
File number(s): SYG 1480 of 2022 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 27 April 2023 Catchwords: MIGRATION LAW – application for extension of time – decision of Administrative Appeals Tribunal – Skilled (Provisional) (Temporary Graduate) (subclass 485) visa – where application for judicial review was filed some 34 days out of time – consideration of whether it is in the interests of the administration of justice to extend time – where no identified prejudice to Minister in granting the extension of time – balanced against inadequate explanation for delay and finding that proposed grounds of review are largely misconceived – consideration of section 375A non-disclosure certificate – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 116, 375A, 430, 368, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 2.05, 29.05
Migration Regulations 1994 (Cth), Schedule 2, cl 100.221
Cases cited: Re Minister for Immigration and Multicultural affairs; Ex Parte Duraisrajasingham (2000) 58 ALD 609
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
Division: Division 2 General Federal Law Number of paragraphs: 102 Date of last submission/s: 25 January 2023 Date of hearing: 25 January 2023 Place: Melbourne Solicitor for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr M Sheedy of Sparke Helmore Lawyers ORDERS
SYG 1480 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURPREET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
27 April 2023
THE COURT ORDERS THAT:
1.The applicant’s application for an extension of time filed on 12 October 2022 be dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $3,930.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for an extension of time to apply for judicial review of a decision to cancel the applicant’s Temporary Graduate (Class VC) (Subclass 485) visa (‘subclass 485 visa’) granted on 29 June 2018.
BACKGROUND
On 29 June 2018, the applicant was granted a subclass 485 visa, as a member of the family unit of the primary visa holder, the applicant’s wife (at the time). The subclass 485 visa was granted for a period of two years.[1]
[1] See Court book at page 30.
Notice of Intention to Consider Cancellation of subclass 485 visa issued 2 August 2019
By letter dated 2 August 2019, sent to the prison at which he was remanded, the applicant was issued with a Notice of Intention to Consider Cancellation (‘NOICC’) of his visa. The covering letter requested that arrangements be made for the applicant to sign an acknowledgment of receipt before a witness.[2]
[2] Court book at page 1.
The NOICC was issued on the basis that the Department of Home Affairs (‘the Department’) was advised by Western Australia Police that the applicant had been charged with various offences involving his wife and 14-month old daughter.[3]
[3] Court book at page 2.
The NOICC included details of the material facts relied upon by the police, which led to the charges being laid, as well as information provided by the Department of Communities, responsible for child protection in Western Australia.[4]
[4] Court book at page 3 and following.
The applicant was invited to comment on the information provided and provide information and any supporting evidence as to why his visa ought not be cancelled.[5]
[5] Court book at page 4.
On 15 August 2019, the NOICC was reissued by registered post to the applicant’s last known residential address.[6] This letter contained the same relevant information, and was received by the applicant.[7]
[6] Court book at page 7 and following.
[7] Court book at page 12.
By email dated 22 August 2019, the applicant provided a written response to the NOICC in which he provided an explanation and context for his behaviour which led to the charges being laid against him. Relevantly, the applicant stated that he had struggled to find employment, that he was suffering from severe depression and anxiety, and that on the day of the incident, his ‘brain went numb and I really don’t know how the situation got escalated’.[8]
[8] Court book at page 15.
In his response to the NOICC, the applicant went on to say that his visa ought not be cancelled as he wanted to have his family back and that he is taking steps to deal with his mental ill health and to avoid a similar incident occurring in future.[9]
[9] Court book at pages 15 to 16.
The applicant also provided various documents in support of his response to the NOICC, including a letter from his wife sent to the magistrate dealing with his criminal charges,[10] as well as a medical report from his GP.[11]
[10] Court book at pages 17 to 18.
[11] Court book at page 19.
Cancellation of subclass 485 visa on 18 September 2019
By email dated 18 September 2019, the applicant was notified of the cancellation of his visa.[12] The delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) was satisfied that the applicant’s continued presence in Australia might pose a potential risk to the safety of his ex-wife and their daughter.[13] The delegate ultimately found that the reasons for cancellation outweighed the reasons against.[14]
[12] Court book at pages 26 to 42.
[13] Court book at page 36.
[14] Court book at page 42.
Due to a technical deficiency in the original notification, the applicant was re-notified of the cancellation of his visa under section 116 of the Migration Act 1958 (Cth) (‘the Act’) on 8 March 2022.[15] In that letter, the delegate stated:
A notification of cancellation letter dated 18 September 2019 was sent to you by email.
The Department has assessed your case and found that you were not correctly notified of this decision. Because of this, I am now re-notifying you that your secondary Skilled (Provisional (subclass 485) visa has been cancelled.
[15] Court book at page 46 and following.
Application for review in the Administrative Appeals Tribunal on 17 March 2022
On 17 March 2022, the applicant filed an application in the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of the cancellation decision.[16]
[16] Court book at page 51 and following.
On 29 March 2022, the delegate issued a non-disclosure certificate under section 375A of the Act which stated that the disclosure of various documents identified in the certificate would be contrary to the public interest on the basis that the information would ‘disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods’.[17]
[17] Court book at page 65.
On 20 June 2022, the applicant was invited to attend a hearing before the Tribunal in relation to his review application.[18] The applicant provided the Tribunal with various letters of support attesting to his good character and the fact that the incidents, which led to the charges being laid against him, were out of character.[19]
[18] Court book at page 67 and following.
[19] Court book at pages 77 to 79.
By letter dated 25 July 2022, the applicant was advised the Tribunal that it had been notified by the Department of Home Affairs of the non-disclosure certificate under section 375A of the Act in regard to material on the applicant’s file.[20] The applicant was invited to comment on the validity of the certificate at the upcoming hearing scheduled for 26 July 2022.
[20] Court book at pages 65 and 84.
The applicant appeared before the Tribunal on 26 July 2022.[21]
[21] Court book at page 87 and following.
Later on 26 July 2022, the applicant provided, at the Tribunal’s request, a copy of the transcript of the sentencing hearing before the Judge in relation to the criminal charges that he was convicted of.[22] Relevantly, that transcript records that in proceedings in the District Court of Western Australia on 19 July 2021, the judge made a lifetime family violence restraining order against the applicant, for the protection of his former wife.[23]
[22] Court book at page 91 and following.
[23] Court book at page 95.
The transcript of the proceedings before the District Court also notes that following a trial, the applicant was convicted of two charges, namely:
(a)intent to injure or annoy, administered unlawfully a noxious thing, namely petrol, to [his ex-wife] … in circumstances of aggravation, namely that a child … was present … [a]nd that [the applicant was] in a family relationship with [the victim]; and
(b)unlawfully doing an act, the result of which the health and safety of [the child] was or was likely to be endangered.[24]
[24] Court book at page 96.
The presiding judge then went on to recite certain factual findings in relation to those matters for the purpose of determining an appropriate sentence.[25]
[25] Court book at page 96 and following.
Ultimately, on 2 August 2022, the Tribunal decided to affirm the decision to cancel the applicant’s subclass 485 visa.[26]
[26] Court book at page 114.
TRIBUNAL REASONS
The Tribunal’s decision of 2 August 2022 is set out at pages 116 to 128 of the court book.
At paragraphs [2] to [11], the Tribunal set out the background to this matter.
The Tribunal noted that it was of the view that the certificate issued pursuant to section 375A of the Act provided valid public interest reasons for non-disclosure of the stated documents. The Tribunal went on to note that it was ‘satisfied that the information relevant to the issues in the review … have been disclosed to the applicant, and to which the applicant has had an opportunity to respond’.[27]
[27] Tribunal decision record dated 2 August 2022 at paragraph [12].
At paragraph [13], the Tribunal records its conclusion that it ought to affirm the decision to cancel the applicant’s visa.
At paragraphs [14] to [46], the Tribunal considered the requirements of section 116 of the Act and the evidence before it, including further evidence submitted by the applicant.
The Tribunal then went on to consider whether, and if so, how, to exercise its discretion at paragraphs [47] to [76]. Ultimately, it concluded at paragraph [77] that overall, the circumstances favoured the cancellation of the visa.
EXTENSION OF TIME APPLICATION
As stated, by his application filed 12 October 2022, the applicant seeks an extension of time within which to file his judicial review application. The Tribunal’s decision was made on 2 August 2022.[28]
[28] Court book at page 116.
It is submitted for the Minister that by application of rule 2.05(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (‘the Rules’), the applicant’s application is taken to have been filed on 10 October 2022, some 34 days after the expiry of the 35-day time limit for the filing of such applications.[29]
[29] Minister’s Outline of Submissions filed on 11 January 2023 at paragraph [31].
The Minister opposes the granting of the extension of time and seeks his costs on this application.[30]
[30] Response filed 17 October 2022.
Section 477 of the Act relevantly provides:
(1)An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court's original jurisdiction under section 476 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 Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) 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 Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
It is well-settled that in considering whether the interests of justice are served by the granting of an extension of time, the court should have regard to a range of factors including, but not limited to:
(a)the extent of the delay;
(b)whether there is a reasonable explanation for the delay;
(c)whether there is any prejudice to the respondent in granting the extension sought; and
(d)the applicant’s ultimate prospects of success and the utility of allowing the matter to proceed to a final hearing.[31]
[31] SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [46]-[48].
Length and explanation for the delay
In his application, by way of explanation for the delay, the applicant relevantly stated, ‘… there was [sic] no welfare workers to help me fill out application papers, since I am not computer literate’.[32]
[32] Initiating Application filed on 10 October 2022.
Notwithstanding procedural orders having been made permitting him to do so,[33] the applicant did not file an amended initiating application or further evidence addressing this explanation, or indeed, any other issue.
[33] Orders of Registrar Carney dated 9 November 2022.
In the course of the hearing before me, the applicant stated that it took him some time to collect the relevant documents and that he did not know how to make the application. I understand this to be an explanation for the delay in the filing of his application.
It is submitted for the Minister that the explanation given, such as it is by the applicant, is inadequate.[34] As noted by the Minister, the applicant has not filed any affidavit explaining the reason for the delay or why an extension ought be granted as required by rule 29.05 of the Rules.
[34] Minister’s Outline of Submissions filed on 11 January 2023 at paragraph [33].
Moreover, whilst it was conceded for the Minister that being in immigration detention might make it more difficult for the applicant to comply with time frames for the filing of his application for review to this court, there is no explanation offered by the applicant for the extent of the delay, and importantly, there is no evidence as to the steps that he did take to bring this application. There is much force to this submission.
Prejudice to the Minister
The Minister concedes that there is no prejudice to him of granting an extension of time, although it is submitted for the Minister that the absence of prejudice alone does not justify the granting of an extension, and in any event, the Minister has a legitimate interest in the timely disposal of applications for visas.[35]
[35] Minister’s Outline of Submissions filed on 11 January 2023 at paragraph [34]; WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [40], [42] and cases referred to therein.
Merits to the substantive grounds of review
In any event and leaving aside the length and explanation for the delay, in this case, the merit of the substantive proposed grounds of review is a particularly important factor in determining whether to exercise the court’s discretion and allow an extension of time. In considering the grounds of review, the court is not confined to an impressionistic assessment of the applicant’s substantive application, with the court able to consider a broader assessment of the merits of the application as required by the circumstances of the case and in the interests of the administration of justice.[36]
[36] Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604, 610-611 [18]-[19].
I will address each ground in turn. Before doing so, I note that in addition to not filing any written submission addressing the proposed grounds of review, the applicant did not make any oral submissions of any substance in support of the proposed grounds of review.
In saying this, I make no criticism of the applicant, who appeared on his own behalf in the proceeding before me, but note that when invited to address the proposed grounds of review, the applicant in oral submissions simply said that he requested that a decision be made in his favour so that so that he could be given a chance, and further, that he had nothing to say in relation to the proposed grounds of review, but rather, wanted the court’s determination on the extension of time issue. In those circumstances, I then invited the Minister’s representative to make submissions and then provided the applicant with an opportunity to respond to those oral submissions.
For the following reasons, I agree with the submissions made on behalf of the Minister that these proposed grounds are largely misconceived and/or do not give rise to any jurisdictional error. Consequently, the applicant has no prospect of success if an extension of time were to be granted, and as such, it is not in the interests of the administration of justice to grant the extension sought.
In his application, the applicant raises the following proposed grounds of review.
Ground 1
By proposed ground 1, the applicant asserts that the Tribunal:
(a)failed to consider an integer of the applicant’s claims;
(b)did not sufficiently put him on notice that the genuineness of his spousal relationship was an issue in the review;
(c)failed to disclose the existence of ‘some of the certificates’; and
(d)did not give him a sufficient opportunity to give evidence or make submissions ‘about what turned out to be an important issue in the disposition of the review application’.
I will consider each of these issues in turn.
Failure to consider integer of applicant’s claims
Whilst a failure to consider an integer of an applicant’s claims would amount to jurisdictional error, whether expressly made or squarely arising on the material, there has been no such failure in this case.
It is submitted for the Minister that the applicant:
37.… has not particularised what integer of his claims the Tribunal failed to consider, nor is the failure to consider any integer of the applicant’s claims apparent. The Tribunal’s decision is otherwise detailed and evidences that it carefully considered the applicant’s claims as relevant to whether the ground for cancellation under s 116(1)(e) of the Act existed … and whether the Tribunal should exercise the discretion to cancel …[37]
[37] Minster’s Outline of Submissions filed on 11 January 2023 at paragraph [37].
It is clear from a fair reading of the Tribunal’s reasons that it considered each of the applicant’s claims relevant to the Tribunal’s decision as to whether grounds for cancellation existed and whether the Tribunal ought exercise its discretion to cancel.[38]
[38] See Tribunal decision record dated 22 August 2022 at paragraphs [15] to [46]; [48] to [76].
A fair reading of the Tribunal’s reasons makes it clear that the Tribunal gave comprehensive consideration to whether grounds for cancellation existed. In doing so, not only did the Tribunal consider information provided by the authorities in Western Australia, but it also considered the applicant’s response to the NOICC and further evidence, including documentary evidence, provided by the applicant.
This evidence is set out in detail at paragraphs [24] to [33] of the Tribunal’s decision record. In addition, the Tribunal’s decision record also details the further information provided by the applicant in the course of the hearing itself at paragraphs [34] to [38].
The Tribunal then sets out its consideration of each of these matters at paragraphs [39] to [45]. A fair reading of the Tribunal’s reasons discloses the careful consideration given to the matters before it, including, relevantly, the applicant’s own evidence and supporting material provided by the applicant.
In addition, the applicant has not identified any integer which he says squarely arises from the material before the Tribunal and which was not considered. In those circumstances, this aspect of proposed ground 1 has no merit.
Failure to put applicant sufficiently on notice of issue of spousal relationship
Similarly, to the extent that the applicant claims that the Tribunal did not sufficiently put him on notice that his relationship with his former wife was an issue, this aspect of ground 1 is also misconceived.
It was submitted for the Minister on this point that:
37.… the genuineness of the applicant’s spousal relationship was plainly not relevant, nor an issue on review, to the Tribunal. The applicant’s evidence at the hearing to the Tribunal was also that he had separated from his ex-wife and so there was no error in the Tribunal proceeding to consider matters on the basis that his spousal relationship was not ongoing.[39]
[39] Minister’s Outline of Submissions filed on 11 January 2023 at paragraph [37].
I agree with the Minister’s contention that the applicant’s spousal relationship, per se, was not relevant to the Tribunal’s consideration of the cancellation of the applicant’s visa. The evidence before the Tribunal was that the applicant had separated from his former wife and indeed, that a lifetime restraining order had been made preventing the applicant from having any contact with his wife.
For completeness, I note that the central issue both before the delegate and before the Tribunal was whether there were grounds to cancel the applicant’s visa, and if so, whether cancellation ought occur. In considering these matters, the fact that the applicant had been charged with criminal offences against his former wife and his child were relevant. These matters were squarely raised in the NOICC and the applicant was clearly on notice of these matters.
This aspect of proposed ground 1, therefore, is also misconceived.
Failure to disclose existence of certificates
Whilst this ground refers to ‘certificates’ it is common ground that the delegate issued only one certificate under section 375A, the existence of which was disclosed to the applicant as stated above. Moreover, the applicant was provided with a copy of the said certificate on 23 March 2022,[40] and was invited to make submissions on its validity at the hearing conducted by the Tribunal on 26 July 2022.[41]
[40] Court book at pages 64 to 65.
[41] Court book at page 84.
This aspect of proposed ground 1 therefore also lacks merit and/or is misconceived.
Failure to provide sufficient opportunity to give evidence or make submissions
Finally, to the extent that the applicant says that he was not provided with an opportunity to make submissions or give evidence in respect of matters which he says ultimately turned out to be important issues, the applicant has not particularised the issue or matter to which this aspect of proposed ground 1 relates.
One reading of this aspect of the applicant’s proposed ground 1 is that the failure to provide an opportunity to give evidence and make submissions relates to the section 375A certificate issue. To the extent that that is the intent of this aspect of proposed ground 1, it is not supported by the evidence. As stated above, the applicant was given a copy of the section 375A certificate by email on 23 March 2022, and he was invited to comment on the validity of the certificate.
Moreover, the Tribunal decision record indicates that both the validity of the certificate and the relevance of the information covered by the certificate, were raised with the applicant at the hearing. Relevantly, at paragraph [11] of its decision record, the Tribunal goes on to say:
11.… The Tribunal noted that some [of] the information in the documents covered by the certificate was relevant to the issues in the review, but noted that the information, to the extent that it was relevant, was disclosed to the applicant in the NOICC, an extract of which was also included in the delegate’s decision record, and that the applicant had an opportunity to respond to that information. After some discussion about the nature of the information covered by the certificate, no issue was taken with the validity of the certificate.
At paragraph [12], the Tribunal then said:
12.The Tribunal is satisfied that the certificate, which was properly signed and dated by a delegate of the Minister, provides valid public interest reasons for the non-disclosure of the stated documents. The Tribunal is also satisfied that the information relevant to the issues in the review … have been disclosed to the applicant, and to which the applicant has had an opportunity to respond.
Having regard to these matters, there is no proper basis on which it could be said that the applicant was denied an opportunity to put forward his evidence and make submissions in relation to the matters before the Tribunal.
For each of these reasons, proposed ground 1 lacks merit.
Ground 2
By proposed ground 2, the applicant asserts that the Tribunal failed to:
(a)give adequate reasons under section 430 of the Act;
(b)consider clause 100.221(4) of schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’);
(c)exercise its duty to review; and
(d)provide the applicant any particulars of the documents covered by the non-disclosure certificate.
It is submitted for the Minister that this proposed ground too is misconceived.[42]
[42] Minister’s Outline of Submissions filed on 11 January 2023 at paragraph [39].
I will turn again to consider each issue in turn.
Failure to provide adequate reasons as required by section 430 of the Act
By the first aspect of proposed ground, the applicant asserts that the Tribunal has failed to give adequate reasons as required by section 430 of the Act.
However, this aspect of ground 2 is misconceived insofar as section 430 does not apply to this type of matter. Section 368 of the Act is an equivalent provision which applies to Part-5 Reviewable Decisions, such as the decision in this case.
Assuming that the applicant incorrectly referred to section 430 in circumstances when he ought to have referred to section 368 of the Act, that section requires that the Tribunal, when making a decision on review, make a written statement setting out the decision, the reasons for the decision and the findings of any material questions of fact. The Tribunal is also required to refer to any evidence or other material on which the findings of fact were based.
As submitted on behalf of the Minister regarding this aspect of ground 2, the Tribunal’s reasons are ‘detailed and compli[ant] with … [section] 368’, and in any case, the requirements under section 368 ‘do not go to the Tribunal’s authority to determine issues, and … any breach of the provision will not itself amount to jurisdictional error’.[43]
[43] Minister’s Outline of Submissions filed on 11 January 2023 at paragraph [39].
It is apparent from the comprehensive statement of reasons that the Tribunal has complied with its obligations under section 368 of the Act.
In any event, it is not clear from the applicant’s case how a breach of section 368, if there were one, would give rise to a jurisdictional error.
As noted by Justice McHugh in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 (‘Durairajasingham’) at paragraphs [68] to [70], his Honour considered a similar argument in relation to section 430:
68. … Even if, contrary to my view, there was a breach of s 430(1) by the Tribunal, it would not amount to a jurisdictional error. In Minister for Immigration and Ethnic Affairs v Eshetu, Gummow J referred to the requirement that, before granting a protection visa, the Minister and, on review, the Tribunal be “satisfied” that the prosecutor was a refugee. That requirement arose from ss 36 and 65 of the Act. His Honour said:
“A determination that the decision-maker is not ‘satisfied’ that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution.”
The prosecutor argued at the hearing that s 430(1)(c)“feeds into the ascertainment of the Minister's satisfaction” and that it is “an integral part of ascertaining the jurisdictional fact”.
69.In Public Service Association (SA) v Federated Clerks’ Union, Deane J said:
“‘jurisdiction’ is not used in the wide and almost meaningless sense to which Lord Reid disapprovingly referred in Anisminic Ltd v Foreign Compensation Commission. It is used in its ordinary sense to refer to the authority of a tribunal to entertain the proceedings, to determine the issues involved in them and to make orders disposing of them.”
70.The language of s 430(1) indicates that the requirement that the Tribunal give reasons for its decision is not a requirement which goes to jurisdiction. The opening words of s 430(1) presuppose that the Tribunal has made a decision: “[w]here the Tribunal makes its decision”, and the sub-section then goes on to impose requirements to be fulfilled subsequent to that decision being made. This construction of s 430(1) was favoured in the recent decision of the Full Court of the Federal Court in Xu v Minister for Immigration and Multicultural Affairs. The requirements of s 430(1) cannot be said to be “some fact or event a condition upon which the existence of which the jurisdiction of a tribunal … shall depend.” The requirements in s 430(1) do not go to the Tribunal's authority to “determine the issues”. Section 430(1) presupposes that the determination has already been made. It requires the Tribunal to give a written, but not a lengthy, explanation of the decision already made. The ultimate issue which the Tribunal has determined is whether it (as opposed to the Minister) has been “satisfied” that the prosecutor was a refugee. Section 430 gives the Tribunal no authority to decide the issue of satisfaction. It assumes that the authority has been exercised and that a decision concerning the issue of satisfaction has already been reached. That being so, the prosecutor's argument that s 430(1) is an “integral part”, or “feeds into” the ascertainment of the Minister's satisfaction such that it is a jurisdictional fact must be rejected. (footnotes excluded)
This reasoning, with respect, equally applies to the present matter. The language of section 368 is similar to that of section 430. For reasons set out earlier, the comprehensive reasons given by the Tribunal demonstrate that it has complied with its obligations in section 368.
However, even if I am wrong about that and there was some breach of the requirements of section 368 of the Act, that would not for reasons articulated in Durairajasingham above, constitute a jurisdictional error.
For each of these reasons, this aspect of proposed ground 2 has no merit.
Failure to consider clause 100.221(4) of schedule 2 to the Regulations
To the extent that proposed ground 2 refers to clause 100.221(4) of Schedule 2 to the Regulations, that provision has no application to the present matter. Clause 100.221(4) relates to the granting of a Partner (Class BC) (Subclass 100) visa.
The applicant was not the holder of such a visa and therefore it is not relevant to the matter before the Tribunal or this court. Leaving aside the lack of particulars about the relevance of clause 100.221(4) to the applicant’s application, this aspect of proposed ground 2 is therefore also misconceived and lacks merit.
Failure of Tribunal to exercise of its duty to review
The applicant further makes a broad assertion as part of proposed ground 2 that the Tribunal failed to exercise its ‘review jurisdiction’. No particulars of how it is said that the Tribunal failed to exercise its review jurisdiction are provided by the applicant, either in his application or at the hearing before me.
It is apparent on the face of the Tribunal’s reasons that the Tribunal understood the issues before it, namely whether grounds for the cancellation of a visa existed and if so, whether it ought exercise its discretion to cancel. As discussed above, it has provided comprehensive reasons in support of its view that there were grounds for cancellation and that the discretion to cancel ought be exercised.
For completeness, to the extent that this aspect of proposed ground 2 relates to a suggestion that the Tribunal did not consider the delegate’s decision and ‘review’ it, that argument would also be misconceived in circumstances where the Tribunal is to consider the substantive applicant afresh on the merits.
For each of these reasons this aspect of proposed ground 2 lacks merit.
Failure to provide particulars of documents covered by non-disclosure certificate
Finally, the applicant asserts that the Tribunal erred by not providing him with particulars of the information covered by the certificate issued under section 375A of the Act. This aspect of ground 2 also lacks merit.
First of all, section 375A relevantly provides:
(1) This section applies to a document or information if the Minister:
(a)has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and
(b)has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.
(2) If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:
(a)the Secretary must notify the Tribunal in writing that this section applies to the document or information; and
(b)the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.
This provision prohibits the Tribunal therefore from disclosing documents covered by the certificate to the applicant. As stated earlier, the applicant was advised that a certificate was issued and was invited to make submissions as to the validity of the said certificate. The Tribunal’s decision record also makes reference to the fact that the certificate and its validity were discussed with the applicant during the hearing as was the relevance of the information covered by the certificate.
Relevantly, the Tribunal noted that some of the information covered by the certificate was relevant to the matter under review and went on to note that the information:
11.… to the extent that it was relevant, was disclosed to the applicant in the NOICC, an extract of which was also included in the delegate’s decision record, and that the applicant had an opportunity to respond to that information.[44]
[44] Tribunal decision record dated 2 August 2022 at paragraph [11].
The Tribunal further noted that ultimately, the applicant took no issue with the validity of the certificate.[45] It is therefore clear that the Tribunal’s dealing with the material covered by the certificate issued under section 375A of the Act does not disclose any jurisdictional error.
[45] Tribunal decision record dated 2 August 2022 at paragraph [11].
For this reason, this aspect of ground 2 also lacks merit.
OTHER RELEVANT MATTERS
For completeness, and as noted, after the Minister’s representative concluded their oral submissions, the applicant was invited to make any submissions in reply that he wished to make.
In response, the applicant submitted that it was said that he posed a risk to his child and former wife. He questioned what risk he actually posed in circumstances where he has the support of his community around him.
Moreover, he suggested that if he did pose a risk, he would be prepared to move to another state or territory within Australia and that this would address any perceived risk. He also suggested that there appeared to be an inconsistent approach taken by the authorities in circumstances where there were people who had been in detention and who had extensive criminal histories but had been released into the community.
The applicant also referred to the character references provided in his support by members of his community and suggested that if he were allowed to stay then he could immediately be deported if he, in fact, re-offended.
Finally, the applicant said that if he were returned to India, he would not be able to see his daughter ever again.
Taken at their highest, these submissions express a disagreement with the conclusions reached by the Tribunal, and in effect, seek impermissible merits review. They do not, with respect, identify any jurisdictional error in the Tribunal’s reasoning.
In these circumstances, having found that none of the grounds raised by the applicant evidence jurisdictional error and none otherwise being apparent on the face of the decision record, and having regard to the delay and absence of any reasonable explanation for that delay, I find that it is not in the interests of the administration of justice for an extension of time to be granted.
I therefore dismiss the applicant’s application for an extension of time.
CONCLUSION
For each of the reasons, I make the orders set out at the commencement of these written reasons.
In the Minister’s written submissions filed in this matter, the Minister also seeks costs fixed in the sum of $3,930.[46] As stated, the applicant did not file any written submission nor did he address this issue in his oral submissions.
[46] Minister’s Outline of Submissions filed on 11 January 2023 at paragraph [40].
In circumstances where the applicant has been unsuccessful, the usual order for costs should be made. In this case, the amount sought is consistent with the costs for such a proceeding in Schedule 2 of the Rules.
I therefore order that the applicant pay the first respondent’s costs fixed in the sum of $3,930.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 27 April 2023
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