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

1. The application be dismissed.
2. The applicant do pay the first respondent's costs to be fixed by way of a lump sum if not agreed.
3. If it is necessary to fix costs then: (a) the first respondent may file and serve an affidavit constituting a Costs Summary in accordance with the Court's Cost Practice Note (GPN-COSTS); (b) within 14 days of service of the Costs Summary the applicant do file and serve any costs proposal in accordance with GPN-COSTS; and (c) if either party thereafter requests a determination of an appropriate lump sum figure then the matter shall be referred to a Registrar for determination of the lump sum on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 Mr Bernard came to Australia from Mauritius in 2009 with his wife and young daughter who was then almost 3 years old. He obtained a permanent work visa and lived here with his wife and daughter. Other members of his extended family live in Australia. Mr Bernard developed problems with gambling and drug addiction. He used credit card details of other people to purchase goods online and then sold them for cash. Between 2011 and 2015 he was convicted on a number of separate occasions of obtaining property by deception and other related charges. 2 Mr Bernard's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) when the Minister was satisfied that he had a substantial criminal record and for that reason did not pass the character test. He made representations to the Minister seeking to have his visa cancellation revoked in the exercise of the power conferred by s 501CA of the Act. A delegate of the Minister decided not to revoke the cancellation. In May 2017, the Administrative Appeals Tribunal affirmed the decision of the delegate (First Tribunal Decision). 3 In December 2017, Mr Bernard applied for a protection visa. His application was refused and the refusal was affirmed by the Tribunal on review (Second Tribunal Decision). 4 Then in November 2018, Mr Bernard made application in the Federal Circuit Court to review the Second Tribunal Decision. At the time of hearing of that application in June 2019 he was in immigration detention. He refused to attend and his application was refused due to his failure to appear at the hearing. 5 On 4 December 2019, Mr Bernard applied in this Court for an extension of time in which to seek review of the First Tribunal Decision for jurisdictional error. In accordance with the requirements of the Federal Court Rules 2011 (Cth), a draft originating application was also filed. The draft sets out general grounds which, to the extent that they describe alleged jurisdictional error, are expressed in the most general of terms. I mean no criticism of Mr Bernard because it appears that the draft originating application was prepared without legal assistance and required grounds to be stated on the basis of an area of the law that is not without its complexities. 6 Shortly thereafter, Mr Bernard made application with pro bono legal assistance for an injunction to restrain his removal from Australia pending the determination of his application for an extension of time. At the time of that application, the lawyers then acting on his behalf prepared draft grounds of review raising seven grounds. The application for injunctive relief was argued by reference to those seven grounds. 7 Mr Bernard's application for injunctive relief was dismissed: Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2187. McKerracher J expressed the view that given the length of the delay, the merits of the application would have to be particularly obvious: at [28]. His Honour was not satisfied that the grounds as raised constituted a sufficiently persuasive case on the merits to warrant the grant of injunctive relief: at [39]. 8 On 7 February 2020, Mr Bernard made a further application for an injunction. It was dismissed by Jackson J as an abuse of process: Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 109. 9 Thereafter, Mr Bernard was removed to Mauritius but seeks to proceed with his application for an extension of time in which to bring a review application in respect of the First Tribunal Decision. At his request, he appeared by telephone to make submissions in support of his application. 10 Mr Bernard has sworn two affidavits in support of his application. They depose to the following matters in support of an extension of time: (1) about a month prior to the First Tribunal Decision being delivered, Mr Bernard's wife served him with divorce papers and that caused him significant distress and anxiety; (2) he wanted to appeal the First Tribunal Decision, but was advised by his lawyers that there was no ground of appeal; (3) he did not have any legal representation (a statement made prior to his first application for an injunction where he was represented by pro bono counsel); (4) he has a 13 year old daughter and his removal from Australia 'will affect her and her study, her mental health and consequently will destroy her life'; (5) he was prohibited from using the internet until June 2019 as part of his sentence for past offending; (6) he has been in poor health due to, amongst other things complications from hepatitis C infection, type 2 diabetes and a congenital heart defect and after the First Tribunal Decision his main focus was on his health and not on any appeal; (7) he made the application for a protection visa based on advice he received from a Legal Centre; and (8) prior to December 2019, he did not know he could apply to extend time to appeal the First Tribunal Decision. 11 The statutory time limit for seeking a review of the First Tribunal Decision was 35 days of the date of the decision: s 477A(1). There is a statutory jurisdiction under s 477A(2) to extend time 'as the Federal Court considers appropriate' if two requirements are satisfied, namely: (a) an application [for an extension of time] has been made in writing to the Federal 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 Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order. 12 On an application for an extension of time, the Court considers amongst other things the applicant's reasons for delay and whether the application, if an extension were granted, would have any prospects of success: Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [26]. The Court will also consider the length of delay and whether there is prejudice to the respondent: see the cases collected recently by Steward J in CLS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 237 at [5]. Prejudice to the respondent will count against an extension, but the absence of prejudice does not itself justify an extension: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-349. The Minister did not claim to be prejudiced if the extension of time were granted. 13 When considering an application to extend time, it has been said that the merits of proposed grounds should be evaluated at a reasonably impressionistic level or in a fairly rough and ready way: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]; Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [21]; and Guo at [27]. 14 A number of cases have approved the following statement by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] (when considering the approach to be applied by the Federal Circuit Court in considering an application for an extension of time under s 477(2) of the Act): … it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless ... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level … into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2). 15 The same reasoning applies under s 477A which, for present purposes, adopts the same language as s 477.