Virapornsawun v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] HCATrans 29

[2023] HCATrans 029

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S156 of 2022

B e t w e e n -

MAROOT VIRAPORNSAWUN

Plaintiff

and

MINISTER FOR IMMIGRATIONS, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 16 MARCH 2023, AT 9.10 AM

Copyright in the High Court of Australia

HER HONOUR:   Matter S156/2022 is an application for a constitutional or other writ in the original jurisdiction of this Court under section 75(v) of The Constitution seeking relief, including the issuing of writs of certiorari and mandamus, directed to the defendant in respect of a decision of a delegate of the defendant not to revoke the cancellation of the plaintiff’s visa under section 501CA(4) of the Migration Act 1958 (Cth).

I have determined that the application should be dismissed, pursuant to Rule 25.09.1 of the High Court Rules 2004 (Cth) without listing it for hearing because it does not disclose an arguable basis for the relief sought.

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

In matter S156/2022, the order of the Court is:

Pursuant to Rule 25.09.1 of the High Court Rules 2004 (Cth), the application for a constitutional or other writ filed on 9 December 2022 be dismissed with costs.

I publish that order.

The plaintiff is a citizen of Thailand.  He first entered Australia in 1998 as the holder of a Tourist visa.  The plaintiff was granted a number of other substantive visas, the last of which was a Resident Return visa (Subclass BN 155) granted in 2017[1]. On 2 April 2019, the plaintiff’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the mandatory cancellation decision”). That decision was made on the basis that the plaintiff was sentenced to an aggregate term of imprisonment for four years and three months. The plaintiff sought revocation of the mandatory cancellation decision.

[1]CII21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 300 at [2].

On 4 June 2020, a delegate of the defendant decided not to revoke the mandatory cancellation decision under s 501CA(4) of the Migration Act, concluding that they were not satisfied that the plaintiff passed the character test, nor that there was another reason why the mandatory cancellation decision should be revoked (“the impugned decision”).  On 14 August 2020, the plaintiff applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the impugned decision.  On 24 August 2020, the Tribunal dismissed the plaintiff’s application pursuant to s 42A(4) of the Administrative Appeal Tribunal Act 1975 (Cth) on the basis that the application was brought outside the time prescribed by s 500(6B) of the Migration Act.  On 28 September 2020, the plaintiff applied to the Federal Court of Australia for judicial review of the Tribunal’s decision[2].  On 27 November 2020, that application was dismissed.

[2]Virapornsawun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1699 at [5]-[6].

On 9 December 2022, the plaintiff filed an application for a constitutional or other writ in this Court seeking relief in relation to the impugned decision.  It is common ground that the application cannot be remitted.

The plaintiff’s application in the original jurisdiction of this Court was filed outside of the period fixed by s 486A(1) of the Migration Act, as well as the periods fixed by rr 25.02.1 and 25.02.2 of the High Court Rules 2004 (Cth). The plaintiff did not apply for an extension of time under s 486A(1) of the Migration Act or under r 25.02.1 of the High Court Rules to prosecute his application for relief but did apply for an extension of time under r 25.02.2 of the High Court Rules. That application, as well as the substantive relief, was opposed by the defendant.

Each party has filed extensive written submissions in this matter and for that reason, and because of the nature of the application, I have concluded that it is appropriate to be dealt with on the papers. Accordingly, I direct pursuant to r 25.09.1 of the High Court Rules that the application be dismissed without listing it for hearing because the application does not disclose an arguable basis for the relief sought. Although the plaintiff was entitled to file a reply, and was reminded of that fact, the plaintiff did not do so.

As these reasons will explain, the plaintiff’s application should be dismissed on three separate but related bases.

No application for an order extending time specified in s 486A(1) of the Migration Act

Section 486A of the Migration Act relevantly provides:

(1)An application to the High Court for a remedy to be granted in exercise of the court’s original jurisdiction in relation to a migration decision must be made the court within 35 days of the date of the migration decision.

(2)The High Court may, by order, extend that 35 day period as the High Court considers appropriate if:

(a)an application for that order has been made in writing to the High 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 High Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”

Section 486A(2) confers a broad discretion to extend the 35‑day time limit imposed by s 486A(1) for the filing of an application in this Court for review of the impugned decision. Section 486A(2) provides that this Court “may” by order extend the 35-day period as it “considers appropriate” if two conditions are met[3]:  first, that “an application for that order has been made in writing to the High Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order”[4]; and second, that the Court “is satisfied that it is necessary in the interests of the administration of justice to make the order”[5].

[3]See Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819 at 824 [12], 828 [32]; 403 ALR 604 at 607, 613.

[4]Migration Act, s 476A(2)(a).

[5]Migration Act, s 476A(2)(b).

As has been stated, the plaintiff did not comply with the first condition. Given that s 486A(2)(a) is a precondition, the fact that no written application was made by the plaintiff is a sufficient basis to dismiss the application[6].  At first blush that might seem harsh.  However, the plaintiff is legally represented and the defendant’s filed written response to the application – to which the plaintiff did not file a reply – raised, as their first reason why the Court should dismiss the application, the plaintiff’s failure to make such an application.

[6]See Tu’uta Katoa (2022) 96 ALJR 819 at 824 [12], 828 [32], [35]; 403 ALR 604 at 607, 613, 614.

Even if such an application had been made, the Court cannot be satisfied that it is necessary in the interests of the administration of justice to make that order (or an order enlarging time for filing an application under rr 25.02.1 and 25.02.2 of the High Court Rules). That is because the plaintiff’s delay in filing the application in this Court is inordinate and without satisfactory explanation and, no less significant, the plaintiff’s proposed grounds of review do not disclose an arguable basis for the relief sought. It is necessary to address each matter in turn.

Delay

The impugned decision was made on 4 June 2020.  This application was filed on 9 December 2022 – almost two and a half years out of time.  The plaintiff’s solicitor filed an affidavit identifying five reasons for the delay:  (i) the plaintiff was “occupied with considerable other legal proceedings since the [impugned] decision was made”; (ii) the plaintiff was in immigration detention and had limited access to lawyers; (iii) the plaintiff’s detention largely occurred during the COVID pandemic; (iv) the plaintiff’s mental health was adversely affected by his serious, long‑standing drug addiction problem; and (v) the plaintiff is impecunious.

As the defendant submitted, whether taken individually or cumulatively, the plaintiff’s reasons for the delay in seeking relief in this Court are without merit.  The length of the delay is inordinate and the explanation is inadequate[7].  The first reason – that the plaintiff was “occupied with considerable other legal proceedings since the [impugned] decision was made” – strongly suggests that the plaintiff could have sought judicial review in this Court of the impugned decision, at least after the Tribunal completed its review of that decision on 24 August 2020.  And none of the remaining reasons address, or explain, how the plaintiff was prevented from filing this application in this Court but was otherwise able to institute proceedings in the Tribunal, the Federal Circuit and Family Court, and the Federal Court despite being in immigration detention, during the COVID‑19 pandemic, whilst suffering mental health issues related to his drug addiction and being impecunious.  And, in any event, no particulars of the plaintiff’s mental health condition or financial position were provided[8].

[7]See, eg, Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 at 473-474 [13]; 177 ALR 491 at 495; Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89 at 90 [3]; 326 ALR 391 at 392; Tu’uta Katoa (2022) 96 ALJR 819 at 825 [18], 835 [60]; 403 ALR 604 at 609-610, 622.

[8]See Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279 at 30 ll1289-1294.

No arguable basis for relief

The plaintiff identified three proposed grounds of review:  (1) the defendant made the impugned decision with no evidence; (2) the defendant denied the plaintiff procedural fairness; and (3) the impugned decision was legally unreasonable, illogical and/or irrational.  None of those proposed grounds of review discloses an arguable basis for the relief sought.

Ground 1 – no evidence

The plaintiff contended that there was no evidence before the delegate for the following finding:

“I further note that [the plaintiff] states he has been prescribed methadone for his drug addiction and is undertaking ongoing professional counselling.  I consider that similar treatment and counselling would be available to him in Thailand, which also has a serious drug addiction problem”.

The defendant does not dispute that there was no objective evidentiary material before the delegate capable of supporting the finding.  However, the defendant submits that it is not correct for the plaintiff to suggest that the delegate possessed no personal or specialised knowledge in respect of the subject matter of the finding or to contend that it cannot be said that the social and medical conditions in Thailand are matters of common knowledge.

It is not necessary to deal with the plaintiff’s contention regarding common knowledge. That is because, in exercising the power conferred by s 501CA(4) of the Migration Act, “the Minister is free to adopt the accumulated knowledge of the Minister’s Department”[9].  That principle applies to a delegate of the defendant[10].  Put in different terms, given the “store of knowledge” that the defendant or their Department has “built up over many years, from dealing with individuals from so many countries and territories, the source of such specific observations”[11] about the availability of healthcare and counselling in Thailand, particularly for persons suffering from substance abuse problems, could only have been from the delegate’s accumulated knowledge.  The defendant, through the delegate, was entitled to apply that knowledge.

[9]Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13 at 19 [19]; see also 18-19 [17]-[20], 20 [27], 21 [31]; 395 ALR 403 at 408; see also 409, 410, 411.

[10]Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at 969 [7]; see also 970 [12], 988 [116], 1010 [263], 1016-1017 [300]; 190 ALR 601 at 604; see also 605, 630, 661, 669-670. See Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 89 at [48]-[54].

[11]Viane (2021) 96 ALJR 13 at 20 [27]; 395 ALR 403 at 410.

Ground 2 – denial of procedural fairness

This ground is related to ground 1. The plaintiff contends that the defendant was required to advise him of the proposed finding. That contention suffers from at least two difficulties. First, the duty to afford the plaintiff procedural fairness in exercising the power conferred by s 501CA(4) of the Migration Act did not require the delegate to identify the source, or general nature, of the material that led to their accumulation of knowledge as to the availability of medical counselling services in Thailand[12].  Second, and no less significant, as in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane[13], it was the plaintiff who made a claim about the concerns or fears that he had about what would happen to him if he were removed from Australia to Thailand. The plaintiff was provided with an opportunity to make submissions and provide evidence in relation to these matters but he did not do so. Instead, in his representations addressed to the defendant in response to the invitation that was given to him pursuant to s 501CA(3)(b) of the Migration Act, the plaintiff merely stated that he had been prescribed methadone for his drug addiction, “wouldn’t have anyone to help [him] in Thailand as [he] ha[d]n’t been back in 16 years”, “ha[s] nothing [in Thailand]”, and “ha[s] family [in Australia] and the support network here that [he] need[s] — the counsellor here will support [him] at all times”.

[12]See, eg, Muin (2002) 76 ALJR 966 at [263]-[264].

[13](2021) 96 ALJR 13 at 21 [32]; 395 ALR 403 at 411.

Ground 3 – impugned decision illogical and/or irrational

The plaintiff contended that the impugned decision was legally unreasonable, illogical and/or irrational because of alleged inconsistent factual findings.  The first set of findings, namely that the plaintiff “remains at significant risk of further drug offending” and that the delegate was not persuaded that the plaintiff had overcome his drug addition, were made by the delegate in the context of considering the primary consideration of the protection of the Australian community.  That set of findings was said to be inconsistent with a later finding – that the plaintiff “would be capable of resettling in Thailand without undue difficulty” – which was made in the context of the delegate considering the extent of impediments if the plaintiff was removed to Thailand.  These complaints are not arguable.  The findings were made in relation to different issues and it cannot be said that the plaintiff’s drug addiction was not considered and addressed by the delegate.  Indeed, the delegate did so, as well as other facts and matters including his parents’ separation and financial predicament in Thailand and the impact of that on the plaintiff, his familiarity with Thai language and culture, his English skills and employment history in Australia, and the emotional hardship he would experience by being separated from his daughter and friends in Australia.

Separately, the plaintiff contended that when considering the plaintiff’s employment prospects in Thailand, the delegate ignored the plaintiff’s serious drug addiction issues, and then referred to the delegate’s later finding that Thailand itself has a serious drug addiction problem.  That argument is dismissed for the same reasons.  Moreover, in his representations to the Minister, the plaintiff claimed that he had no employment opportunities in Thailand, not that he could not secure employment in Thailand because he was addicted to drugs.

Conclusion and orders

For those reasons, pursuant to r 25.09.1 of the High Court Rules, the application for a constitutional or other writ filed on 9 December 2022 is dismissed with costs.

Adjourn the Court.

AT 9.11 AM THE MATTER WAS CONCLUDED