Truong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCA 344

FEDERAL COURT OF AUSTRALIA

Truong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 344

Appeal from:	Application for an extension of time for judicial review of the Administrative Appeals Tribunal decision, dated 17 September 2019 by Senior Member Theodore Tavoularis
File number(s):	NSD 170 of 2020
Judge(s):	THAWLEY J
Date of judgment:	12 March 2020
Legislation:	Migration Act 1958 (Cth) s 501(3A), 501(6)(a), 501(7)(c), 501CA, 500(4A)(c)
Date of hearing:	12 March 2020
Registry:	New South Wales
Division:	General Division
Category:	No Catchwords
Number of paragraphs:	18
Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondents:	Australian Government Solicitors
Counsel for the Respondents:	Ms H Dejean

ORDERS

NSD 170 of 2020

BETWEEN:

BACH CONG TRUONG

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	THAWLEY J
DATE OF ORDER:	12 MARCH 2020

THE COURT ORDERS THAT:

1.The application for an extension of time filed on 20 February 2020 is dismissed.

2.The applicant pay the respondents’ costs in the fixed amount of $700.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(revised from transcript)

THAWLEY J:

1. On 20 February 2020, the applicant filed an application for an extension of time to seek judicial review of a decision of the Administrative Appeals Tribunal made on 17 September 2019.  An extension of time was necessary because the time limit for such an application is 35 days.

2. The application was listed for a first case management hearing this morning.  The Minister applied for the proceedings to be summarily dismissed on the basis that they were bound to fail.

3. The background facts may be briefly stated.  The applicant was the holder of a Class BS Subclass 801 Partner (Residence) visa.  

4. The Minister, by his delegate, notified the applicant that his visa was being cancelled under s 501(3A) of the Migration Act 1958 (Cth) on 15 February 2019. Under that provision, the Minister must cancel a visa if the Minister or his delegate is satisfied that the visa holder does not pass the character test because of the operation of the paragraphs specified in that section.

5. The delegate was satisfied that the applicant had a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(c). Under s 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. The applicant had been convicted of assault occasion actual bodily harm by the Local Court of New South Wales, Campbelltown on 26 November 2018 and sentenced to a term of imprisonment of 20 months.

6. The delegate was also satisfied that, at the time of the decision, the applicant was 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 – see: s 501(3A)(b).

7. Section 501CA of the Act provides a statutory right to seek revocation of a cancellation decision made under s 501(3A). On 19 February 2019, the Department received a request for revocation under s 501CA from the applicant. That application is currently being considered by the Department and the applicant continues to discuss with the Department his application for revocation of the cancellation decision. His latest email was sent to the Minister on 16 January 2020.

8. At some time before September 2019 the applicant also made an application to the Administrative Appeals Tribunal for review of the cancellation decision.  On 17 September 2019, the Tribunal wrote to the applicant, indicating that it had dismissed his application for review.

9. On 17 February 2020, the Tribunal wrote to the applicant providing reasons for its decision.  Those reasons are dated 11 February 2020.

10. The basis for the Tribunal dismissing the application for review was that it had no jurisdiction to entertain the application.

11. Section 500(4A)(c) of the Act provides that a decision made by a delegate of the Minister under s 501(3A) to cancel a visa, is not reviewable under s 500, Part 5 or Part 7 of the Act. The Tribunal’s decision is plainly correct. It is not arguable that it is in any way incorrect. It follows that, if an extension of time were granted, the resulting application for judicial review would be bound to fail. There is no reason why an extension should be granted notwithstanding the lack of prospects of success. Accordingly, the application for an extension of time should be dismissed.

12. For the comfort of the applicant, however, I would make the following observations. The law provides for the applicant to seek revocation of the decision to cancel his visa: s 501CA. Such an application has been made by him and the Minister is in the process of considering it. At this point in time, it is obviously not known whether or not the Minister will revoke his decision to cancel the visa.

13. If the Minister or his delegate decides not to revoke the cancellation decision, then the law provides certain review rights.  That is the proper occasion for the applicant to pursue the various matters that he has carefully put forward today.

14. The application for an extension of time filed on 20 February 2020 is dismissed.

    COSTS

15. The Minister applied for costs in the amount of $700.

16. These proceedings were listed this morning at 9.30am and will end at approximately 11.15am.  The Minister had to digest the history of the matter, the application for an extension of time and the applicant’s affidavit.  The Minister prepared an affidavit which was filed in support of the application for summary dismissal.  Taking into account the hearing time, the affidavits and the time necessary to consider his position, the sum of $700 for costs is reasonable.

17. The applicant has pointed out that he does not have the capacity to pay costs.  The Court is sympathetic to his position.  Unfortunately, however, an inability to pay costs is not of itself a reason not to order costs.

18. In those circumstances the Court orders the applicant to pay the respondents’ costs in the fixed amount of $700.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.

Associate:

Dated:       12 March 2020