Bhullar v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 Mr Bhullar is a citizen of the Republic of India. He arrived in Australia in 1998 and since that time has held a succession of visas which have conferred upon him rights of residence. The most recent of these was a spousal visa granted following his marriage in 2000 to an Australian woman. This case concerns the cancellation of that visa. The Minister for Immigration and Citizenship has a power to cancel a visa if he "reasonably suspects that the person does not pass the character test" and the visa-holder does not satisfy the Minister subsequently that he does in fact pass the character test (s 501(2) Migration Act 1958 (Cth)) (the Act). A person may fail the character test in a number of ways but for the purposes of this case it is sufficient to note that being sentenced to a period of imprisonment of one or more years will do (see s 501(6) and (7)). On 5 May 2010 an officer within the Department of Immigration and Citizenship (acting as the Minister's delegate) cancelled Mr Bhullar's visa on the basis that he reasonably suspected that Mr Bhullar failed the character test by reason of his extensive criminal record and he had not been persuaded otherwise. Amongst his convictions are two which might reasonably be regarded as serious. The first of these concerned threats made to the attendant of the bottle shop at the Argyle Street Hotel in Parramatta (a western suburb of Sydney). On this occasion he was armed with a syringe full of blood. The attendant fled unharmed and Mr Bhullar stole a bottle of vodka. The second concerned his unsuccessful efforts to rob the National Australia Bank on Oxford Street, Surry Hills (an inner city suburb of Sydney) with his son's toy pistol. 2 For the events at the bank he was convicted in the District Court sitting at Sydney of the offence of "assault with intent to rob armed with offensive weapon" and sentenced to three years and six months imprisonment with a non-parole period of 18 months (he was sentenced concurrently for two shoplifting offences at the same time). For the events at the bottle shop he was convicted in the District Court sitting at Parramatta of the offences of "being armed with intent to commit an indictable offence", assault and two counts of larceny, for which he was sentenced to two years imprisonment. He also has a number of other convictions for shoplifting, larceny and minor drug offences. 3 It follows that Mr Bhullar failed the character test. It was, therefore, open to the Departmental official to cancel, as he did, Mr Bhullar's visa. As was his right, Mr Bhullar then applied to the Administrative Appeals Tribunal for a review of the official's decision. The Tribunal member heard that review on 6 July 2010 at which time Mr Bhullar represented himself. On 15 July 2010 the Tribunal affirmed the delegate's decision. 4 Mr Bhullar now applies to this Court for judicial review of the Tribunal's decision. This Court's jurisdiction to entertain such a claim is conferred through the combined effect of ss 476A(1)(b) and 476A(2) of the Act. The latter provision establishes that the jurisdiction thus conferred "is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution". That Court has jurisdiction under that provision to entertain any suit in which a writ of prohibition or mandamus is sought against an officer of the Commonwealth together with jurisdiction to hear claims in which injunctions are sought against such officers. The grant of the writs of mandamus or prohibition depends on the establishment of the existence of jurisdictional error (see Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at 675 [70] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ), but this is not so in the case of injunctions (Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 at 162 [47] per Gummow, Hayne, Heydon and Crennan JJ). Further, because s 75(v) is a source of jurisdiction rather than power its terms do not confine the relief which may be granted but, instead, merely identify a class of suits in which the High Court has a constitutionally entrenched jurisdiction. It follows that once that jurisdiction is attracted the Court may also grant any relief which is incidental to that grant of jurisdiction. For example, often enough a writ of certiorari will be granted together with a writ of mandamus - the latter to require the officer involved to do his or her legal duty; the former to undo what has already been done (see Plaintiff s157/2002 v Commonwealth (2003) 211 CLR 476 at 507 [80] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ (and the cases referred therein)). Because the vesting by s 75(v) is with respect to "matters" it also follows that where a claim for a constitutional writ forms part of a larger controversy the jurisdiction thus granted extends to the resolution of the whole matter and not just those parts with which s 75(v) is concerned. 5 However, despite the apparent breadth of the grant in s 476A(2), the jurisdiction of the Federal Court is in fact limited to instances of jurisdictional error. This counter-textual result arises because of the definition of "private clause decision" in s 474 and the conclusion reached by the High Court in Plaintiff s157/2002 v Commonwealth, that decisions afflicted by jurisdictional error are not decisions "to which s 474 applies" (211 CLR at 494 [38] per Gleeson CJ, 211 CLR at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ: "[o]nce it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically s 75, the expression "decision[s]… made under this Act" must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act."). Consequently, Mr Bhullar must point to jurisdictional error in the Tribunal's decision in order to succeed upon his application. 6 Mr Bhullar's claim under s 476A did not specify what relief he wished to have. However, since it is plain that he wishes to quash the decision of the Tribunal I propose to treat the application as one for writs of certiorari and mandamus. Mr Bhullar was required to make that application within 35 days of the Tribunal's decision: s 477A(1). That decision was given on 15 July 2010 and the 35th day after that was 19 August 2010. Mr Bhullar's claim was filed on 23 September 2010 and is, accordingly, out of time. This Court has the power to extend that time bar if two things happen: first, Mr Bhullar applies to this Court "in writing" and specifies why he "considers that it is necessary in the interests of the administration of justice to make the order" (s 477A(2)(a)); secondly, this Court "is satisfied that it is necessary in the interests of the administration of justice to" extend the time (s 477A(2)(b)). 7 Mr Bhullar's application to this Court under s 476A is endorsed with the words "*And I am asking for an extension to lodge papers". Those words are followed by the words "I suffer from MS. Not much treatment available in India. I have a 9 year old boy born in Australia that I cannot leave behind." Following some questioning from me Mr Bhullar submitted that his MS made him act slowly and this was to be seen as part of the reason for his delay. 8 The Minister initially submitted in writing that Mr Bhullar had not made an application under s 476A but this submission was withdrawn at the hearing. Ms Hooper, the solicitor representing the Minister did submit, however, that he had not specified sufficient grounds for the Court to be satisfied that it was in the interests of the administration of justice to extend time. In that regard, she submitted that the merits of Mr Bhullar's principal claim were relevant to the question of extension and that there were no such merits. It was not suggested that Mr Bhullar needed to write down on his application the point that his MS made him slow (so as perhaps to satisfy the requirement about writing in s 477A(2)(a)). 9 The delay in question is minor and is explained by the fact that within the time provided for the application to be made Mr Bhullar sought to file a "notice of appeal". However, the Registry - correctly - would not accept it since there is no appeal from a decision of the Tribunal in a case such as the present by reason of s 483 of the Migration Act 1958. The Registry then suggested to Mr Bhullar that he file a form 55A (which was not the correct form). This occurred on 10 August 2010. The time for the bringing of the present application expired on Thursday 19 August 2010. On Monday 23 August 2010 Mr Bhullar faxed to the Registry the now completed form 55A and an application for extension of time. This was one working day late. On 22 September 2010 the Registry informed Mr Bhullar that he should have filed a form 56A and that it had erroneously informed him to file a form 55A on 24 August 2010 (as well as on the 10 August 2010). Mr Bhullar then filed the present (correct) application the following day on 23 September 2010. 10 Mr Bhullar made the incorrect application within time. But for the Registry's error he would have made the correct application on Monday 23 August 2010 which was one working day after the 35 day period had expired on Thursday 19 August 2010. The case is one, therefore, where Mr Bhullar made the reasonable mistake of thinking he could appeal from the Tribunal's decision. The Administrative Appeals Tribunal Act 1975 (Cth) says that such an appeal is available - s 44 - and it is only with the added knowledge that s 483 of the Migration Act 1958 outflanks that provision that one could know that one must apply for constitutional writs where the Tribunal affirms a visa cancellation decision on character grounds. In those circumstances, I regard Mr Bhullar's position as being reasonable for a lay person. Generally, however, the merits or otherwise of the underlying application will be relevant to the questions posed on an extension application by s 477A(2)(b). It will be enough for now to note, subject to the question of whether Mr Bhullar's proposed substantive claim has any merit, that this is otherwise plainly a case for an extension. 11 I turn then to the case Mr Bhullar would advance if an extension of time were to be granted. During the hearing I explained to Mr Bhullar that the relief which this Court was empowered to grant largely related to the legalities of the Tribunal's processes and not the more basal question of whether his visa should be cancelled. Mr Bhullar made five points during argument. It is useful to deal with them in turn.