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[2010] FCA 1337
Federal Court of Australia
2010-12-03
Perram J
Original judgment source is linked above.
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.
Failure to consider the effect of medical condition 12 There is no dispute that Mr Bhullar suffers from multiple sclerosis. He submitted that the Tribunal had failed to take account of his condition in reaching his decision. The relevance of the multiple sclerosis was, I think, to show that he would receive inferior treatment for that condition if returned to India because of the different standards available in the Indian health system. In particular, so Mr Bhullar submitted, he would be located in Amritsar, 1,000 kms away from the place where he might be expected to receive appropriate treatment. The Tribunal, however, rejected this argument. It found he could receive treatment in Delhi which was only 450 kms away from his home in Amritsar. It also found he would have support from his family and, being only 34, would probably be able to handle the situation. Despite that, it did accept that his return would cause him significant hardship with, inter alia, his health. 13 I would be prepared to accept that a failure by the Tribunal to deal with an important argument put to it would involve a denial of procedural fairness and that would empower this Court to give relief under s 476A cf. Plaintiff M61/2010E v Commonwealth [2010] HCA 41 at [90] per the Court, applying Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1092 [24] ("To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice") and at 1102 [95] per Hayne J . The difficulty is that the Tribunal did not ignore the argument but rather, to the contrary, accepted it. Mr Bhullar's loss in the Tribunal was not a consequence of his failure to persuade it of the hardship he would face. Rather, it was the result of failing to persuade the Tribunal that its concerns about the community's need to be protected from crime were outweighed by the hardships to Mr Bhullar (along with other matters). I reject also the argument that the Tribunal should have given this matter a different weight. That decision lay squarely within its authority.
Failure to consider the position of his son 14 Mr Bhullar submitted that the Tribunal had failed to consider the impact on his son of the cancellation of his visa. There is no doubt that Mr Bhullar has a 9 year old son from his previous marriage. The Tribunal accepted that there was a close relationship between them. Mr Bhullar informed me that he saw his son about once a week whilst in gaol or immigration detention and spoke to him every day or every other day. I am prepared to accept that in his favour. The difficulty is that the Tribunal not only considered the position of the child but actively found that "it is in the son's best interests that Mr Bhullar's visa not be cancelled": Bhullar v Minister for Immigration and Citizenship [2010] AATA 529 at [49]. Ultimately, the Tribunal's decision rested not on some perception that being separated from his father would not be hard on the child but, to the contrary, on the notion that the degree of Mr Bhullar's criminality and the risks he posed to the community outweighed that burden. I cannot accept, in that circumstance, that the Tribunal did not assess this issue.
Inaccuracy of criminal record 15 Mr Bhullar submitted that the Tribunal had considered an account of the robbery at the National Australia Bank which was not accurate. He did not dispute that he had been convicted of that offence. The point he endeavoured to make was that he had not been brandishing the pistol around the bank and threatening people. As he put it, it was not like an armed robbery "in a film". The only person he had threatened had been the teller. The picture he sought to paint was of a rather low-key affair. 16 The Tribunal did not, however, make any finding that Mr Bhullar had been brandishing the pistol or threatening other people. In fact, the Tribunal's only observations were, first, that the trial judge "noted that while there was no actual violence in Mr Bhullar's offence, there was a threat of violence and the victim, from whom he demanded $50,000, being a teller in a bank, was in a vulnerable position" [2010] AATA 529 at [22]; and, secondly, that the offence was a "very serious" one: [2010] AATA 529 at [30]. I cannot accept, in that circumstance, that the Tribunal considered an incorrect version of his criminal record.
Failure to take into account the relationship between multiple sclerosis and drug use 17 The Tribunal did not think that there was a direct risk that Mr Bhullar would commit serious offences again. Its conclusion was that "there [was] a moderate risk of his reoffending at least in terms of minor criminal conduct such as possession and use of marijuana": [2010] AATA 529 at [40]. This was reasoned so because as "[Mr Bhullar] regards the use of marijuana as beneficial for MS, he is likely to use it again in the future if the opportunity arises": [2010] AATA 529 at [40]. The Tribunal concluded that if he were to use marijuana "there is a reasonable likelihood that this may lead to other criminal conduct as has happened in the past": [2010] AATA 529 at [40]. It cannot be correct to say in that circumstance that these matters were not taken into account. They formed part of the reasoning which led to the conclusion that his visa should be cancelled. Mr Bhullar did not advance an argument that it was irrational to conclude he was a risk to the community by reason of his marijuana use. In that regard it may be noted that none of the Tribunal's findings suggested any link between violent crime and marijuana use. The point not having been raised and the Minister not having been afforded an opportunity to respond to it there is no occasion to consider the implications of the High Court's decision in SZMDS v Minister for Immigration and Citizenship (2010) 240 CLR 611 to that aspect of the Tribunal's reasons. If that point is to be pursued it must be pursued before the Full Court.
The degree of attachment to his son 18 Mr Bhullar drew to my attention the closeness of the bond he has with his son. There was no direct evidence before me of this but I will accept for present purposes that Mr Bhullar's submissions about this should be taken as fact. The difficulty, however, is again the one posed by the limited nature of this Court's jurisdiction which does not extend to making afresh the Tribunal's decision. 19 I do not think, in those circumstances, that Mr Bhullar has established any grounds which would entitle this Court to grant writs of mandamus or prohibition or an ancillary writ of certiorari.
Disposition 20 It is necessary in the first instance to decide whether time should be extended to bring the present application. I have concluded that the main application, if permitted, should be refused. It does not follow that the extension of time should not be granted. The question for present purposes is whether the points made by Mr Bhullar have sufficient substance to warrant the extension. It would, I think, be unseemly for a case whose effect will probably be permanently to sever the relationship of a young father and his young son to go off on a timing, the fault for which partially lies with the registry of this Court. There is no doubt that Mr Bhullar's submissions did not proceed with any real grasp of the operation of the constitutional writs but that can hardly be seen as a deficiency on his part. He did make submissions directed to seeking to show the Tribunal was wrong in its conclusions which is a rational approach for a lay person to take. I have not accepted those arguments but they were not frivolous in the relevant sense. In those circumstances, I propose to extend the time to bring the application to 23 September 2010 nunc pro tunc. 21 However, for the reasons I already stated, that application must be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.
Bhullar
Minister for Immigration and Citizenship
[2010] AATA 529
(2007) 228 CLR 651
(2003) 77 ALJR 1088
(2008) 237 CLR 146
(2003) 211 CLR 476
(2010) 240 CLR 611