Wekerle v Department of Home Affairs

[2020] FCA 1300

FEDERAL COURT OF AUSTRALIA

Wekerle v Department of Home Affairs [2020] FCA 1300

Appeal from:

Application for extension of time:  Wekerle and Minister for Home Affairs [2019] AATA 630

File number:

WAD 326 of 2019

Judgment of:

BANKS-SMITH J

Date of judgment:

9 September 2020

Catchwords:

MIGRATION - application for extension of time to file application for judicial review - applicant's visa cancelled under s 501(3A) of Migration Act 1958 (Cth) - applicant filed review application 20 days out of time - no real prejudice to Minister - application discloses reasonably arguable ground of denial of procedural fairness at impressionistic level - where it cannot be said that applicant has no real prospect of success on review application - application granted

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 39

Migration Act 1958 (Cth) ss 500, 501

Cases cited:

De Simone v Commissioner of Taxation [2009] FCAFC 181

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; (2014) 225 FCR 482

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585

Sullivan v Department of Transport (1978) 20 ALR 323

SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; (2018) 266 FCR 105

SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86

Division:

General Division

Registry:

Western Australia

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

23

Date of hearing:

9 September 2020

Counsel for the Applicant:

The Applicant appeared in person

Counsel for the First Respondent:

Ms SJ Oliver

Solicitor for the First Respondent:

Sparke Helmore Lawyers

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

WAD 326 of 2019

BETWEEN:

KOLI WEKERLE

Applicant

AND:

DEPARTMENT OF HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	BANKS-SMITH J
DATE OF ORDER:	9 SEPTEMBER 2020

THE COURT ORDERS THAT:

1.The time for filing an application for judicial review be extended to 29 May 2019.

2.The application be adjourned to a case management hearing on a date to be fixed.

3.Costs reserved.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1. The applicant was born in Samoa and is a citizen of New Zealand.  At the age of 15 the applicant moved to Australia in 2012 with his adoptive parents.  The applicant held a Class TY Subclass 444 Special Category (Temporary Visa) which permitted him to remain in Australia while a New Zealand citizen.

2. The applicant has a history of violent offending. On 7 June 2017 and at a time when he was serving a term of imprisonment, the applicant's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). On 9 January 2019 a delegate of the Minister decided not to revoke the cancellation of the applicant's visa.

3. On 16 January 2019 the applicant applied to the Administrative Appeals Tribunal for review of the non‑revocation decision.  On 3 April 2019 the Tribunal affirmed the delegate's decision not to revoke the cancellation of the applicant's visa.  Since the Tribunal's decision, the applicant has returned to New Zealand but pursues his application.

4. The applicant seeks an extension of time in this Court to seek judicial review of the Tribunal's decision of 3 April 2019.  He is unrepresented.

5. The applicant's application for an extension of time reveals three proposed grounds of review:

   (1)the Tribunal's decision to affirm the cancellation of the applicant's visa failed to consider the length of time the applicant has spent in Australia, the ties the applicant has to Australia and the young age of the applicant;

   (2)the Tribunal denied the applicant procedural fairness; and

   (3)the Minister's decision to cancel the applicant's visa based on his criminal history relied on material, namely the applicant's criminal record and national police check, obtained without the applicant's consent and involved jurisdictional error.

   Principles governing extension of time

6. Relevant considerations in assessing whether an extension of time for the filing of an application should be granted include the length of the delay, any explanation for the delay, any prejudice to the respondent and whether the application for review would have any prospect of success if the extension were granted:  Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348‑349; and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].

7. Ordinarily, caution is required in assessing the merits of an application at an interlocutory stage of the proceeding, and in determining what significance or weight to give to the resulting conclusion:  Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [7]‑[9] (Brennan CJ and McHugh J), [66] (Kirby J); and MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]‑[63] (Mortimer J). The applicant's proposed grounds should be considered on their face and examined at a 'reasonably impressionistic level'. If it appears from such an examination that the proposed review application has no realistic prospect of success, it would not ordinarily be in the interests of justice to grant an extension of time.

   Consideration

8. In respect of the length of the delay, the applicant was 20 days out of time in filing his application in this Court.

9. The applicant filed an affidavit accompanying his application for an extension of time which provided the following explanation for the filing day (unedited):

   1.I am currently held in immigration centre

   2.I have an originating application for migration review

   3.I am passed my due date for application for the migration review in the Federal Court Of Australia as I had the application filed in the wrong court namely the Federal circuit court

   4.I originally filed the application in the Federal circuit court

   5.I am hereby applying for an extension of time and with all my forms attached

   6.I do not have any legal representatives which is another reason of why I am filing past the due date.

   7.I would like the court to give me a referral for a solicitor.

10. I accept that matters such as lack of legal representation do not of themselves found a basis for an extension of time.  However, the Minister accepts that a 20 day delay is modest and that there is no real prejudice in the grant of an extension, other than the public interest in the finality of administrative decision-making.

11. Therefore, as the Minister accepts, whether or not an extension should be granted turns on whether the application would have any prospects of success if the extension were granted.  It is sufficient for the purpose of this application to address only the second proposed ground of review:  the Tribunal denied the applicant procedural fairness.

12. Although the applicant has not particularised his complaint as to the alleged denial of procedural fairness, in accordance with its obligations as a model litigant, the Minister's submissions properly disclosed to the Court information to the following effect:

    (1)the supplementary G documents that were provided to the Tribunal and the applicant ahead of the hearing contained a bundle of police records that had been obtained in response to the issue of subpoenas;

    (2)within those documents was a particular collection of documents that related to, relevantly, offences said to have been committed by the applicant on 23 April 2016 that included causing injury and what was described in the statement of alleged facts as trafficking and possessing cannabis.  Those documents included reference to a DVD recorded interview.  In response to a subpoena, the Tribunal also received a copy of the DVD;

    (3)the DVD was not provided to the applicant; and

    (4)the Tribunal admitted into evidence, after the hearing and without the prior knowledge of the parties, a further set of the documents referred to at (2) together with the DVD and marked them as Exhibit T1.

13. In the Tribunal hearing of 27 March 2019 the Tribunal put to the applicant that the applicant had admitted to the police that some cannabis in question was his and that he had sold one of ten bags of cannabis.  The Tribunal expressly referred to the DVD recording of the police interview.  As far as the Court is aware, the applicant was not played a recording of the interview; provided with a transcript; nor provided with a copy of the recording.

14. The Tribunal went on to make findings that the applicant's evidence was inconsistent, in part relying on the police interview.  The following extracts from the Tribunal's reasons are important:

    [45]On a number of occasions, Mr Wekerle's oral evidence was at odds with the findings of the court or diametrically opposed to the weight of influential evidence before the Tribunal.  For example, he claimed that nine deal bags of cannabis found in his possession were not his and that he was holding them for a friend.  Mr Wekerle denied telling police his reason for possessing cannabis was 'Having fun,' despite evidence to the contrary in police record and the DVD recording of his police interview.  When it was pointed out to Mr Wekerle that he had admitted to police that the cannabis was his, he had sold one of the ten bags prior to his arrest, and had subsequently pleaded guilty to and was convicted of trafficking, he inexplicably continued to deny ownership of the drugs.

    …

    [68]On a number of occasions during the current hearing, Mr Wekerle's evidence did not ring true.  He left the impression that he was seeking to minimise his involvement or shift blame in relation to his violent conduct.  His explanations about incidents raised with him were often self-serving and unpersuasive, highlighting Mr Wekerle's tendency to reconstruct events to his perceived advantage.  The Tribunal does not accept Mr Wekerle's claims that his offending was substantially attributable to mixing with the 'wrong crowd.'  The evidence shows he was the instigator in much of the offending he was convicted of.  The Tribunal is particularly concerned that some of Mr Wekerle's submissions were at odds with the findings of the court.

    (citations omitted)

15. A question arises as to the source and scope of the Tribunal's obligation to afford procedural fairness in a review hearing relating to a non-revocation decision under s 501 (noting that the Minister submits that even if there were any denial of procedural fairness, it was not material).

16. Section 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that:

    Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents. 

    (emphasis added)

17. The obligation imposed on the Tribunal by s 39(1) is a 'statutory recognition of an obligation the common law would in any event imply': Sullivan v Department of Transport (1978) 20 ALR 323 at 342; and De Simone v Commissioner of Taxation [2009] FCAFC 181 at [15].

18. Part of the obligation imposed on the Tribunal, at common law and under statute, is that an applicant be provided an opportunity to respond to materials adverse to the applicant.  The Full Court in SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; (2018) 266 FCR 105 explained as follows:

    [38]Procedural fairness does not require the decision maker to disclose what he or she is minded to decide so that the parties may have a further opportunity of criticising his or her mental processes before reaching a final decision, and generally does not require a decision maker to invite comment on the evaluation of the subject's case:  Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 ('Alphaone') at 590-591. However, the subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity to deal with them, and the subject is entitled to respond to any adverse conclusion drawn on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Alphaone at 591.

19. Considering these matters at an impressionistic level, it seems to me that it is arguable that the applicant should have been provided with the DVD recording of the police interview, or a transcript of the police interview or been played a recording of the police interview, being evidence on which the Tribunal relied in its reasons:  see Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; (2014) 225 FCR 482 at [107]‑[108]. I would not be persuaded at this point, having regard to the paragraphs of the reasons that I have quoted above, that any denial of procedural fairness was clearly not material. In saying this I also note that I do not have a copy of the transcript of the proceedings before the Tribunal. I also note that, as counsel for the Minister has observed, it may be that there is further relevant evidence about the issues to hand.

20. On its face, nothing in s 500 of the Migration Act appears to exclude the requirement under s 39(1) of the AAT Act that the applicant be given an opportunity to inspect any documents to which the Tribunal proposes to have regard in reaching a decision.

21. The Minister has not this morning been able to point to a certain or clear provision or authority that qualifies the Tribunal's obligation of procedural fairness and it is accepted that this question requires further and careful consideration before any final view is expressed.  In the circumstances, this is not a case where it can fairly be said that the applicant has no real prospect of success on his review application.  He should have the opportunity to pursue his application in circumstances that allow for full argument on the relevant issues.

22. It is therefore in the interests of justice that the applicant be granted an extension of time to file an application for judicial review.

23. There will be orders accordingly.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.

Associate:

Dated:       9 September 2020