VPKY v Minister for Home Affairs & Ors

[2021] HCATrans 58

[2021] HCATrans 058

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M105 of 2020

B e t w e e n -

VPKY

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

Second Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Third Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 APRIL 2021, AT 9.34 AM

Copyright in the High Court of Australia

HIS HONOUR:   On 14 October 2020, the plaintiff filed an application for constitutional writs and other relief.  The application was heard in Brisbane via video connection to Melbourne on 31 March 2021.  For the reasons I now publish, I would dismiss the application.

The orders are:

1.        The application be dismissed.

2.        The plaintiff pay the first defendant’s costs.

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

The plaintiff is a citizen of the United Kingdom.  With the exception of some brief periods, the plaintiff has resided in Australia since 1969.  She has a substantial criminal history predominately comprising drug offences, including trafficking of drugs, which date from 1977 when she was 16 years old.

The plaintiff’s drug offences were a consequence of her addiction to drugs which, in turn, was a coping mechanism for long periods of sexual abuse as a child, domestic violence in her relationships, and grief over the death of a close friend whom she had nursed.  She had no criminal history from 2002 until 2015 but relapsed around 2015 and 2016 to deal with severe emotional stress.  She committed further offences in 2015 and 2017, including trafficking in dangerous drugs in 2017.

On 7 September 2017, the Minister, acting under s 501(3A) of the Migration Act 1958 (Cth), cancelled the plaintiff’s Class BB Subclass 155 (Five Year Resident Return) visa. Following the plaintiff’s representations under s 501CA(4)(a), a delegate of the Minister refused to revoke the decision.

The refusal decision by the delegate was affirmed by the Administrative Appeals Tribunal.  When considering the expectations of the Australian community, the Tribunal referred “particularly” to “the health concerns of the applicant’s ageing parents”.  The Tribunal also described the evidence from the applicant’s parents to the Tribunal including their declining health, the important role of their daughter in caring for them, and how her mother would be “heartbroken” if the applicant were removed from Australia.  The Tribunal considered that the impact on the applicant’s family and her long‑standing ties to Australia weighed “heavily in favour of revoking the mandatory cancellation of the visa”.  But the Tribunal also recognised the “serious nature of the applicant’s prior offending” and considered that “the risk of reoffending remains real with a potential for further harm to the community should that occur”.  The Tribunal concluded that the “overall balance” weighed “slightly in favour of a decision to not revoke the mandatory cancellation of the applicant’s visa”. 

In considering whether the original decision should be revoked under s 501CA(4) of the Migration Act, the Tribunal applied Direction No 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA given under s 499(1) of the Migration Act.  The Direction contained principles including “Primary considerations” of:  (i) protection of the Australian community (cl 13.1); and (ii) expectations of the Australian community (cl 13.3).  In connection with the latter consideration, the Direction provided:

“The Australian community expects non‑citizens to obey Australian laws while in Australia.  Where a non‑citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non‑citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person.  Non‑revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa.  Decision‑makers should have due regard to the Government’s views in this respect.”

The plaintiff sought judicial review of the Tribunal’s decision before O’Callaghan J in the Federal Court of Australia.  The two grounds upon which judicial review was sought asserted jurisdictional errors:  (i) by alleging a failure of the Tribunal to take into account relevant considerations, including that she would never again see her elderly and ill parents (who reside in Australia) and that her parents would die without her being able to be present; and (ii) by asserting that the decision of the Tribunal was legally unreasonable.  O’Callaghan J dismissed both grounds of the application for judicial review.

As to the first ground, his Honour quoted from the Tribunal’s reasoning that the “impact on the [plaintiff’s] family” was one reason that weighed “heavily in favour of revoking the mandatory cancellation of the visa”.  His Honour observed that the Tribunal did not expressly mention the plaintiff’s representation that the plaintiff would not see her parents again because they would pass away before she could do so.  But he concluded that it was not necessary for the Tribunal expressly to refer to having considered that matter because such consideration was “the self‑evident consequence” of the Tribunal’s express acceptance of the following facts[1]:  the plaintiff’s parents are elderly and in declining health; the plaintiff’s mother is legally blind and has survived three bouts of cancer; the plaintiff could play an important role in caring for her mother and her father as they got older; the mother would be “heartbroken” if her daughter were removed from Australia; and deportation would mean that the plaintiff would be prevented from caring for her parents as their health continued to decline.

[1]VPKY v Minister for Home Affairs [2019] FCA 1767 at [21].

As to the second ground, his Honour said that there was no substance to it because there was no error in the process of reasoning nor in weighing matters in the balance, albeit that the balance was a fine one[2].  In particular, he reiterated the findings of the Tribunal:  (i) that the protection of the Australian community, which is a primary consideration, should weigh very heavily in favour of not revoking the cancellation decision, a finding that, in itself, would be sufficient to base a conclusion that the cancellation decision should not be revoked; and (ii) that expectations of the community, another primary consideration, also weighed in favour of not revoking the cancellation decision.

[2]VPKY v Minister for Home Affairs [2019] FCA 1767 at [31]‑[33].

The application for judicial review of the decision of the Tribunal was dismissed by O’Callaghan J on 6 November 2019[3]. The plaintiff did not file an appeal to the Full Court of the Federal Court of Australia by 4 December 2019, the date of expiry of the 28‑day time limit for appealing[4]. On 3 February 2020, almost two months after the expiry of that time limit, the plaintiff sought an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) within which to appeal from the decision of O’Callaghan J.

[3]VPKY v Minister for Home Affairs [2019] FCA 1767.

[4]Federal Court Rules 2011 (Cth), r 36.03.

The plaintiff relied upon two proposed grounds of appeal in her application for an extension of time.  First, that O’Callaghan J should have found that the Tribunal had failed to consider a representation by the plaintiff that non‑revocation would mean that she would never see her parents again, and that they would die without her being able to be present.  Secondly, that O’Callaghan J should have found that it was legally unreasonable for the Tribunal to determine that the balance of all relevant considerations weighed in favour of cancellation.

In considering the application for an extension of time, Middleton J referred to the matters relied upon by the plaintiff as reasons in favour of granting an extension of time[5]:  the need to do justice between the parties and the history of the matter; the conduct of both parties, the nature of the litigation; and the consequences for the parties of a grant or refusal of the extension.  Although the Minister’s submissions, which were before this Court, oscillated between describing the Minister’s position as being whether the “proposed grounds of appeal have any merit” to saying that the proposed grounds of appeal are “not sufficiently arguable”, Middleton J described the Minister’s response as being that the plaintiff’s “proposed grounds of appeal do not reveal any arguable error” in the reasoning of the primary judge[6].  In the result, the plaintiff’s application for an extension of time was dismissed by Middleton J[7].

[5]VPKY v Minister for Home Affairs [2020] FCA 1209 at [14].

[6]VPKY v Minister for Home Affairs [2020] FCA 1209 at [15].

[7]VPKY v Minister for Home Affairs [2020] FCA 1209.

A decision of a single judge of the Federal Court of Australia to refuse to extend time to appeal cannot be the subject of an application for special leave to appeal to this Court[8].  The plaintiff applies instead for constitutional writs and associated relief to quash the decision of Middleton J.  Among the orders that she seeks are the following:  (i) the grant of an extension of time within which to appeal to the Full Court of the Federal Court of Australia; (ii) the remittal of the matter to the Federal Court of Australia; and (iii) orders that the Full Court be required to hear and determine the appeal.  If jurisdictional error were found to exist, issues may arise with the proposed order that this Court grant an extension of time rather than quash the decision of the Federal Court of Australia and remit the matter for redetermination.  Those issues can be put to one side.

[8]Federal Court of Australia Act 1976 (Cth), s 33(4B)(d)(iv) read with s 25(2)(b).

The three grounds of the plaintiff’s application in this Court allege that Middleton J made three jurisdictional errors or errors of law on the face of the record.  In oral submissions, the plaintiff abandoned reliance upon any errors of law on the face of the record.

The first alleged jurisdictional error was said to be Middleton J’s failure to take into account relevant considerations by:  (i) failing to consider a threshold question of whether, in all of the circumstances of the case, the plaintiff had an arguable case and instead proceeding finally to determine whether the proposed grounds of appeal were made out; (ii) failing to consider and to determine whether there was a sufficient explanation for the plaintiff’s delay in seeking to institute her appeal; and (iii) failing to consider and to determine the question of prejudice to the plaintiff if she were not granted the extension of time to institute her appeal.  The second alleged jurisdictional error was that his Honour erred in “interpreting or applying the law” and that he should have concluded that the plaintiff had a sufficiently arguable case, that there was a sufficient explanation for the plaintiff’s delay, and that there was grave prejudice to the plaintiff in the absence of an extension of time.  The third alleged jurisdictional error was that his Honour’s decision was legally unreasonable.

The submissions of the Minister on this application focused primarily upon the absence of any of the alleged legal errors by Middleton J.  If there were no such errors by Middleton J then, as the Minister correctly submitted, there would be no jurisdictional errors by the Federal Court (as a superior court).  The Minister’s submission that Middleton J did not err should be accepted.

I do not accept the plaintiff’s submission that Middleton J effectively decided the case on a final basis rather than applying an evaluative approach to all relevant considerations in his Honour’s assessment of whether an extension of time should be granted.  In effect, Middleton J was assuming, in favour of the plaintiff, that she had a good explanation for her delay and that there would be serious prejudice to the plaintiff if leave were not granted.  His Honour recognised that the delay was caused by “the situation of distress” that the plaintiff had described in her affidavit[9].  His Honour also recognised the “serious impediments” that the plaintiff would face if she were returned to the United Kingdom, including “physical and psychological illness, isolation, overwhelming difficulty in finding employment, no support networks and desperation at the thought of never being able to be with her family again, and at the consequences for her parents”[10].  In light of these matters, the threshold for arguability required for an extension of time would have been low.  But, Mr Krohn, as counsel for the plaintiff, quite properly accepted in oral submissions that the weight of these matters would not be sufficient for an extension of time if there was no arguable error.

[9]VPKY v Minister for Home Affairs [2020] FCA 1209 at [13].

[10]VPKY v Minister for Home Affairs [2020] FCA 1209 at [7].

Middleton J had understood the submission of the Minister to be that the “proposed grounds of appeal do not reveal any arguable error”[11].  Middleton J was, in effect, addressing this submission when he commenced his consideration of the grounds of the proposed appeal with this statement:  “[i]t is appropriate in this application to consider directly the merits of the proposed appeal in deciding whether to grant the extension of time requested by the [plaintiff]”[12].

[11]VPKY v Minister for Home Affairs [2020] FCA 1209 at [15] (emphasis added).

[12]VPKY v Minister for Home Affairs [2020] FCA 1209 at [31].

Before Middleton J, the plaintiff had relied upon the two proposed grounds of appeal described earlier in these reasons.  To reiterate, the first was that O’Callaghan J had erred by failing to find that the Tribunal had “failed to consider a representation by the [plaintiff] that non‑revocation would mean that she would never see her parents again, and they would die without her being about to be present”[13].  The second was that O’Callaghan J had erred by not finding that the Tribunal’s decision that the balance of all relevant considerations weighed in favour of cancellation was legally unreasonable[14].

[13]VPKY v Minister for Home Affairs [2020] FCA 1209 at [32].

[14]VPKY v Minister for Home Affairs [2020] FCA 1209 at [43].

As to the first proposed ground of appeal, Middleton J assumed that this representation was a mandatory consideration[15] but effectively concluded that the plaintiff had no arguable case that O’Callaghan J had erred because it was self‑evident that the Tribunal had considered the representation – that the plaintiff would not see her parents again and that they would die would her being present – and thus the representation did not need to be stated “in terms”[16].

[15]Referring to Migration Act, s 499. Compare Minister for Home Affairs v Omar (2019) 272 FCR 589 at 603 [34(e)].

[16]VPKY v Minister for Home Affairs [2020] FCA 1209 at [40]‑[41].

The reasoning of Middleton J was correct.  A court can draw an inference from a decision‑maker’s reasoning, or from other circumstances such as the manner of conduct of the hearing, that matters were considered by the decision‑maker even if there is no express mention of those matters in the reasons for decision.  This is especially so in circumstances in which, as Middleton J observed of the Tribunal’s decision, the Tribunal’s finding was implicit in other findings made by it[17] or, at the least, the other findings necessarily indicated the consideration of the representation.  It was plainly the case that the Tribunal must have considered the representation. Even though the Tribunal did not make precise reference to the representation, it was implicit, or assumed, in the Tribunal’s express reference to all the matters referred to by Middleton J.  For instance:  (i) one reason for the reference to the plaintiff’s parents being elderly and in declining health, and the plaintiff’s mother being legally blind and having survived three bouts of cancer, was the inability of the plaintiff to see her parents again if her visa were revoked; (ii) a reason for referring to the plaintiff’s ability to play an important role in caring for her mother and father as they got older was the inability of the plaintiff to do this if her visa were revoked; (iii) a reason to mention that the plaintiff’s mother would be “heartbroken” if her daughter were removed from Australia was because she would not see her daughter again; and (iv) a reason for saying that deportation would mean that the plaintiff would be prevented from caring for her parents as their health continued to decline was because the plaintiff would not see her parents again.

[17]See also Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at 332 [46]; Guclukol v Minister for Home Affairs [2020] FCAFC 148 at [48].

To conclude that the Tribunal had failed to take a relevant consideration into account because it did not make express its underlying assumption would be erroneously to subject the Tribunal’s reasons to a microscope of strict literalism, interpreting them “minutely and finely with an eye keenly attuned to the perception of error”[18].  Middleton J was correct to conclude that the first proposed ground of appeal did not reveal any arguable basis for error so as to warrant the grant of an extension of time.

[18]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

As to the second proposed ground of appeal, Middleton J effectively concluded that the plaintiff had no arguable case that O’Callaghan J erred in his conclusion that the decision of the Tribunal was not legally unreasonable.  Again, this conclusion was correct.  As both judges held, there was a clear, intelligible justification for the Tribunal’s decision[19].  The process of weighing the different factors for and against revocation was an evaluative exercise for the Tribunal to undertake[20].  The decision was plainly within the scope of legal reasonableness.  There is a high threshold for legal unreasonableness in this context[21], particularly in light of the broad, evaluative nature of the factors involved in the decision‑making by the Minister, including the public interest.

[19]VPKY v Minister for Home Affairs [2019] FCA 1767 at [33]; VPKY v Minister for Home Affairs [2020] FCA 1209 at [48].

[20]See, for example, Nguyen v Minister for Home Affairs (2019) 270 FCR 555 at 565‑566 [33]; BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420 at 491-492 [347].

[21]See also Minister for Home Affairs v DUA16 (2020) 95 ALJR 54 at 61 [26]; 385 ALR 212 at 220.

The absence of any of the errors alleged by the plaintiff in the decision of Middleton J means that it is unnecessary to consider whether any error could be jurisdictional.  Such a conclusion would have raised further hurdles for the plaintiff.  The grounds alleging erroneous application by Middleton J of the test for an extension of time would have required the Court to be satisfied that such alleged errors invalidated his authority to decide the matter.  The ground concerning the alleged unreasonableness of the outcome of Middleton J’s decision (there being no other duty, function, or power that was said to have been exercised unreasonably[22]) would have required the Court to accept that the decision was not merely erroneous but was invalid as being arbitrary or capricious or devoid of common sense[23].

[22]See ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928 at 958 [124]-[125]; 383 ALR 407 at 443.

[23]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 351 [28].

The plaintiff’s application for constitutional writs and other relief must be dismissed. The plaintiff opposed an order for costs in the event that her application was dismissed. She relied upon her impecuniosity and inability to earn money because she has been in immigration detention since completing her sentence of imprisonment. She also submitted that the Minister has power under ss 195A and 197AB of the Migration Act to release her from immigration detention in order to allow her to “earn her keep, and indeed to allow her to nurse and care for her elderly, frail and ill parents”.  The plaintiff’s lack of financial resources is not a sufficient reason to refuse a costs order that would otherwise be appropriate[24].  It was not otherwise submitted that the power of the Minister to detain the plaintiff in immigration detention had been exercised improperly or with legal unreasonableness, independently of the matters said to support the grounds for relief.

[24]Northern Territory v Sangare (2019) 265 CLR 164 at 173‑174 [26], 176‑177 [35].

In these circumstances, the application must be dismissed with costs.

The Court will now adjourn until 10.00 am.

AT 9.34 AM THE MATTER WAS CONCLUDED