Caritativo v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 Clifford Caritativo is a national of the Philippines who entered Australia on 28 March 1987 and was until recently the holder of a permanent residency visa. 2 On 8 March 1996, Mr Caritativo was sentenced by the District Court of Western Australia following his conviction on three counts of conspiracy to sell or supply Methylamphetamines and two counts of conspiracy to sell or supply Lysergic Acid Diethyamide. On the three counts of conspiracy to sell or supply Methylamphetamines he was sentenced to a term of nine years and eight months. On the two counts of conspiracy to sell or supply Lysergic Acid Diethyamide he was sentenced to five years concurrent with the sentence on the other conspiracy counts. In addition he was declared by Healy DCJ, the sentencing judge, to be a drug trafficker. On or about 18 August 2000, Mr Caritativo was released on parole. He was then living with his parents at Port Kennedy. 3 Mr Caritativo had been advised in May 1996 that because of his criminal convictions he had rendered himself liable to consideration for deportation. On 9 March 1999, he was again advised of this liability. On 14 February 2000, he was issued a notice regarding his liability for consideration for deportation, which notice he acknowledged on 13 March 2000. On 9 October 2000, he was sent a further letter advising him that the criminal convictions that had rendered him liable for consideration for deportation under s 200 of the Act also gave rise to consideration about the cancellation of his visa. He acknowledged receipt of the letter on 18 October 2000. He was notified by mail at his home address on 12 December 2000 of the Minister's intention to consider cancellation of the visa held by him pursuant to s 501 of the Act. That letter said, inter alia: "Before the Minister considers whether to cancel your visa under subsection 501(2), you are provided with an opportunity to comment. Matters to be taken into account include the following: . Your substantial criminal record and/or . Your past and present criminal conduct . Your past and present general conduct" Mr Caritativo replied by way of a letter dated 28 December 2000. On 7 August 2001, the Minister made a decision in the following terms: "I have considered all relevant matters including: (1) an assessment of the character test as defined by s 501(6) of the Migration Act 1958, (2) my Direction under s 499 of that Act and Mr Clifford Caritativo's comments, and have decided that: … (d) I reasonably suspect that MR CLIFFORD CARITATIVO does not pass the character test and Mr Clifford CARITATIVO has not satisfied me that he passes the character test AND I have DECIDED TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA SO I hereby cancel the visa." 4 On 3 September 2001, a notice of the visa cancellation was served on Mr Caritativo at his parents' house in Port Kennedy by two officers of the Department of Immigration, Multicultural and Indigenous Affairs, Bernard Albert Spanier and Troy Rule. Enclosed with the notice was a copy of the decision record setting out the Minister's reasons for decision. The notice concluded with the words: "…You may wish to obtain legal advice to any other review options that may be available to you." (sic) 5 No review action was taken until 2 November 2001 when an application was filed in this Court naming Mr Caritativo as applicant and the Minister as respondent. The application was headed: "Application by Clifford Caritativo FOR REVIEW OF THE DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL TO AFFIRM THE DECISION OF THE MINISTER'S DELEGATE TO CANCEL HIS PERMANENT RESIDENT VISA AND AN URGENT INJUNCTION ON THE RESPONDENT NOT TO REMOVE THE APPLICANT FROM AUSTRALIA AND FOR AN ORDER THAT THE APPLICANT SHOULD NOT BE DETAINED." The substantive text of the application that followed was in the following terms: "Applicant applies to this Honourable Court: For Reasons set out in the accompanying Affidavits, to make Orders that: 1. An extension of time be granted; 2. The decision of the AAT to affirm the decision of the Minister's Delegate to cancel the Applicant's visa and to deport him be set aside; 3. An Order that the Applicant be not detained until a finality is reached in this application; 4. An Urgent Injunction that the applicant be not removed/deported until the Court makes a final Order on this Application; 5. For such other and further Orders that this Court deems fit; 6. For Costs." The application was signed by Mr Caritativo but bore the endorsement: "Prepared by: Viji de Alwis, as amicus curiae [pending leave of the court]" The applicant's address for service was said to be: "C/- Viji de Alwis, First Floor, 544 Hay Street, Perth WA 6000" No claim for interlocutory relief was otherwise endorsed on the application. The application was supported by an affidavit sworn by the applicant's mother, Adelina Baker, in which she said: "1. Clifford Caritativo, the applicant in this case is my son. 2. I married Mr Steven Mark Baker in 1982. 3. I brought Clifford when he was only 12 years old, to Australia. 4. Clifford does not know any family or relations or friends in Phillipines. 5. Clifford has told me how regretful he is about the crime he committed and that he'll never offend again. 6. I appeal to this court to forgive him and let him stay in Australia. 7. If he is deported, he'll have to go to Davao province in the Phillipines. There are Muslim Terrorists in that area. His uncle, my own brother was beheaded and killed by the Muslim Terrorists in a very cruel fashion in 1995. 8. There's so much drugs in Phillipines. I am frightened that he will take to drugs in frustration as he'll have no friends and he'll be regarded as a stranger who knows nothing about the Phillipine culture or the language." 6 On 23 November the matter came before me for directions and the following orders were made, and in doing so it was noted that the respondent Minister undertook to give forty eight hours notice to the applicant and his solicitor before removal of the applicant from Australia. The orders that were made were: "1. The directions hearing is adjourned to 7 December at 2.15pm. 2. The applicant is to file and serve any proposed amended application by 5 December 2001 together with any supporting affidavits. 3. The respondent is to file and serve an affidavit exhibiting all documents recording the decision to cancel the applicant's visa and documents before the decision maker in relation to that decision by 30 November. 4. The respondent is to file any objection to competency by 6 December 2001. 5. The question whether the application can be amended and the objection to competency are to be argued on 7 December at 2.15pm. 6. Costs of today be reserved. 7. There be liberty to apply." 7 Mr De Alwis informed the Court on that day that he would file a notice that he was acting as solicitor for the applicant, a step he has still failed to take. By 5 December no amended application has been filed and that remains the position today. On 6 December the respondent filed a motion to dismiss the application under O 10 r 7 or O 20 r 2 of the Federal Court Rules. 8 On 7 December, the motion to dismiss the application came on for hearing and was argued on the part of the respondent. The matter was then adjourned, part-heard, until today. I indicated at that time to Mr De Alwis that I expected he would endeavour to prepare some written submissions between 7 December and today. At the commencement of argument today he had not done so. The contentions were advanced on behalf of the Minister on 7 December that the application should be dismissed because: "(a) the application is defective in that it seeks review of an AAT decision; (b) the applicant has failed to comply with a direction of the Court to amend the application; (c) even if the applicant sought to amend the application, the Court has no jurisdiction to hear the application because it was filed out of time and section 477(2) provides that the Court may not extend this period; and (d) the application discloses no reasonable cause of action, alternatively is frivolous or vexatious and an abuse of process." It was said that the application was misconceived and defective in its current form because it seeks to review a decision of the Administrative Appeals Tribunal when there was no such decision. There was never a hearing before the Administrative Appeals Tribunal. The decision to cancel the applicant's residence visa was made by the Minister on the basis that the applicant did not meet the character test requirements of s 501 of the Act. The applicant has not sought leave to amend the application. Even if he did, it was submitted leave to amend should not be granted. 9 It was also submitted that the application should be dismissed as being out of time, even if amended: 10 "The applicant failed to make the application within the 28 day period required by section 477(1) of the Act. The respondent notified the applicant of the decision by letter dated 13 August 2001, given to the application (sic) by hand on 3 September 2001. The applicant is taken to have received the decision on that day: reg 2.16(3) and ss494B(2) and 494C(2). The application should therefore have been made by no later than 2 October 2001, but was made on 2 November 2001 and is therefore outside the section 477(1) time limit: see s477(1) and s478(2);" 11 Prior to 2 October when the amendments introduced by the Border Control legislation came into effect, s 478(1)(b) of the Act provided for a twenty eight day period within which applications for a review were to be lodged, and subs (2) provided that the Court could not extend that period. It was submitted for the Minister that the present provisions are to the same effect as the former s 478 and decisions in relation to the former s 478 where the Court strictly applied the twenty eight day period should be applied. Reference was made to the decisions of the Court in Nirmalan v Minister for Immigration and Multicultural Affairs [1998] FCA 672; Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269, Kucuk v Minister for Immigration and Multicultural Affairs [2001] FCA 535 and Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995. Alternatively, it was submitted the application should be dismissed first for failure to comply with a direction of the Court and, secondly, because it contained no grounds of review and did not disclose a reasonable cause of action. Alternatively, it was frivolous or vexatious and an abuse of process. 12 The test for striking out an application generally speaking is that it is manifestly untenable. This application, as framed, falls into that category because it seeks review of an Administrative Appeals Tribunal decision which was never made. There was never an application to that Tribunal. It is now too late to seek judicial review of the Minister's decision because of the effect of s 477 of the Act and even if it could be said that Pt 8 of the Act, as it stood before the amendments that came into effect on 2 October were still in operation, the time limit problem is still intractable. The time limit is not a procedural matter, it is a matter which goes to the jurisdiction of the Court and therefore cannot be extended by the Court. The constitutional issue in relation to that was considered and dealt with in Hocine. 13 The application must be dismissed. In so saying, I want to make it clear that I am sympathetic to the applicant's family and, indeed, to some extent to the applicant himself. It is a hard thing for him to be sent back to his country of birth after having been here some fourteen years from age twelve even if, as no doubt can be said, he has brought his misfortune upon himself by the offences which he has committed. I cannot however translate that sympathy into a legal power which I do not have. 14 I regret to say that the application in this case has been prosecuted with incompetence