Tuberi v Federal Court of Australia & Anor

[2022] HCATrans 141

[2022] HCATrans 141

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M6 of 2021

B e t w e e n -

SOLOMONE TUBERI

Plaintiff

and

FEDERAL COURT OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 25 AUGUST 2022, AT 10.15 AM

Copyright in the High Court of Australia

HIS HONOUR:   By application filed on 22 January 2021, the plaintiff seeks constitutional or other writs.  For the reasons that I now publish, I would dismiss the application.  The order is:

1.The application for constitutional or other writs, filed on 22 January 2021, be dismissed.

I publish that order.  I direct that the reasons as published be incorporated into the transcript.

The plaintiff, Mr Tuberi, is a Fijian citizen. As a consequence of his criminal convictions, on 22 June 2017 Mr Tuberi’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth). At that time he had lived in Australia for 17 years. Mr Tuberi made representations in support of revocation of the mandatory cancellation decision. But, on 19 November 2019, the Minister decided not to revoke the mandatory cancellation decision pursuant to s 501CA of the Migration Act.

On 22 January 2020, Mr Tuberi filed an application in the Federal Court of Australia under s 477A(2) of the Migration Act for an extension of the 35‑day period within which to seek judicial review of the Minister’s decision.  The application was subsequently amended with the assistance of pro bono counsel.  On 23 July 2020, Steward J refused the amended application on the basis that it lacked sufficient merit to warrant an extension of time and had no reasonable prospect of success[1].  There was no right of appeal to the Full Court of the Federal Court from the decision of Steward J[2].  There is no right of appeal to this Court[3].

[1]Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1029.

[2]Federal Court of Australia Act 1976 (Cth), ss 20(3)(b), 24(1AA)(a).

[3]Federal Court of Australia Act 1976 (Cth), s 33(2); Migration Act 1958 (Cth), s 476A(4).

Mr Tuberi therefore seeks relief in the original jurisdiction of this Court. He seeks a writ of certiorari to quash the decision of Steward J and a writ of mandamus directing that his application for an extension of time be determined by the Federal Court in accordance with law. The basis for Mr Tuberi’s application in this Court is his claim that the decision of Steward J “failed to lawfully apply the ‘interests of the administration of justice’ test in s 477A(2) of the [Migration Act], by applying too high a threshold for whether the proposed application had sufficient merit for granting the extension of time”.

Mr Tuberi’s application for a writ of mandamus in this Court is approximately four months out of time[4].  He has provided no explanation for the delay.  By itself, this is a significant discretionary factor in considering whether relief should issue[5].  Even if I had reached the view that there might be some slight merit to Mr Tuberi’s application that slight merit might still be insufficient to overcome the unexplained, lengthy delay.  But, for reasons explained below, Mr Tuberi’s application in this Court has no merit and no prospects of success.

[4]    High Court Rules 2004 (Cth), r 25.02.1.

[5]    See Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470 at 474 [15]‑[16]; 177 ALR 491 at 495‑496.

Section 477A(2) of the Migration Act provides a broad power for the Federal Court to extend the 35‑day period for an extension of time within which to seek a remedy in the original jurisdiction of the Federal Court.  Where the application has been made in writing specifying the reasons why it is necessary in the interests of the administration of justice to make the order, the Federal Court’s power depends only on its satisfaction that it is “necessary in the interests of the administration of justice to make the order”.  That leaves a broad area for the exercise of discretion[6].

[6]    Australia, Senate, Migration Legislation Amendment Bill (No 2) 2008, Explanatory Memorandum at 15‑16 [87].  See also Renzullo v Assistant Minister for Immigration and Border Protection (2016) 152 ALD 497 at 504 [23], quoting AZF15 v Minister for Immigration and Border Protection [2016] FCA 373 at [7].

In Kentwell v The Queen[7], a joint judgment of four members of this Court held that, in the context of the factors to consider in an application to extend time, “[t]he interests of justice will often pull in different directions”.  In his Honour’s reasons for decision on Mr Tuberi’s application, Steward J correctly identified relevant factors to be considered which included:  the extent of the delay, any prejudice that a respondent might suffer because of the delay, the explanation for the delay, and the merits of the proposed application[8].

[7] (2014) 252 CLR 601 at 614 [32].

[8]    Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1029 at [4].

As to those matters, Steward J accepted Mr Tuberi’s explanation for the delay and held that it “supplies a more than sufficient explanation for the delay which had taken place”[9].  His Honour also held that the extent of the delay was “minor”, and the Minister was not prejudiced[10].  But, after considering the proposed grounds of review in what might be described as “a threshold assessment of merit”[11], his Honour concluded that the grounds had no real prospect of success[12] and that the application for review was “bound to fail”[13].

[9]    Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1029 at [6].

[10]    Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1029 at [7]‑[8].

[11]    EBT16 v Minister for Home Affairs (2019) 94 ALJR 6 at 8 [7]; 374 ALR 443 at 446.

[12]    Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1029 at [31].

[13]    Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1029 at [37].

Mr Tuberi does not suggest that there was any error in Steward J’s conclusion as to the lack of merit of his application.  There was not.  As his Honour explained[14], each of the proposed grounds of appeal involved a narrow reading of the Minister’s reasons for decision which did not read the reasons in context and in their totality.

[14]    Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1029 at [32]‑[33], [36].

In concluding that the proposed application had no prospects of success, Steward J did not apply too high a threshold for whether the proposed application had sufficient merit for granting the extension of time. It is unnecessary, therefore, to consider whether, or when, legal error in the approach taken to the threshold for the discretionary decision-making process under s 477A(2) of the Migration Act could be jurisdictional error[15] or non-jurisdictional error on the face of the record[16] to empower the issue of a writ of certiorari or mandamus.  In this case, there was no error at all.

[15]    R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 389.

[16]    But see Craig v South Australia (1995) 184 CLR 163 at 180‑183.

On the material before me, Mr Tuberi’s application for a constitutional or other writ has no prospects of success and should be dismissed under r 25.09.1 of the High Court Rules 2004 (Cth) without listing it for hearing on the ground that it does not disclose an arguable basis for the relief sought.

The only basis upon which a hearing might have been required would have been if I had concerns about whether Mr Tuberi had not had the opportunity to put his case in writing.  Mr Tuberi filed his application for a constitutional or other writ in Form 12, which included his statement of the factual background and his argument in support of the application.  And he supported that application with an affidavit.  But he did not file a reply.

Rule 9.04A of the High Court Rules has the effect that Mr Tuberi was taken to have been served with the second defendant’s response when he was sent an email to the email address he provided for service relating to that response by the Registry of this Court on 28 May 2021.  Mr Tuberi had 7 days from 28 May 2021 to file and serve a reply[17].  On two occasions, an officer of the Registry wrote to Mr Tuberi at the email address which he provided for service explaining, respectively, that he had 7 days to file a reply, and that if he did not do so he would be taken not to have filed a reply.  On 30 July 2021, Mr Tuberi replied, from the email address to which the Registry of this Court had sent the response, saying that he had not received any emails from the Court and had not received the second defendant’s response.  On 2 August 2021, an officer of the Registry emailed Mr Tuberi at the same email address advising him again of the second defendant’s response, explaining that it could be viewed by logging onto the Digital Lodgment System, and extending the time to 9 August 2021 within which to file any reply.  That same day, Mr Tuberi telephoned the Registry and spoke to the officer.  At Mr Tuberi’s request, the Registry emailed to him an electronic copy of the second defendant’s response to the application.  On 30 August 2021, the officer emailed Mr Tuberi asking for confirmation that he did not propose to file any reply.  On 21 October 2021, the officer emailed Mr Tuberi stating that, as he had not filed a reply, it would be assumed that he did not wish to do so, and the matter would be considered by a Justice.

[17]High Court Rules 2004 (Cth), r 25.08.1.

Mr Tuberi had every opportunity to file a reply if he wished to do so. His application should be dismissed with costs under r 25.09.1 of the High Court Rules 2004 (Cth).

These reasons were prepared shortly after allocation of this matter to me in March 2022.  The delivery of these reasons was delayed as a consequence of the prospective hearing of related issues by this Court on 10 May 2022 in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[18].  In circumstances in which Mr Tuberi is unrepresented, it was appropriate to await the hearing and decision in Tu’uta Katoa in the event that anything said in the reasons for decision in that case might have assisted Mr Tuberi.  That decision was delivered on 17 August 2022.  There is nothing in either of the joint judgments in that case that could assist Mr Tuberi’s argument that the primary judge applied too high a threshold for whether Mr Tuberi’s proposed application had sufficient merit for granting the extension of time.

[18][2022] HCA 28.

Please adjourn the Court.

AT 10.16 AM THE MATTER WAS CONCLUDED