Chandra v Minister for Immigration and Border Protection

1. Leave to further amend the amended application for review filed on 8 December 2017 be refused.
2. The amended application for review of a migration decision dated and filed 8 December 2017 be dismissed.
3. The applicant pay the respondent's costs as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 I have before me an amended application for review of a decision made on 30 August 2017 by the Parliamentary Secretary to the Minister for Immigration and Border Protection to refuse to revoke a decision of a delegate of the respondent, the Minister for Immigration and Border Protection, to cancel the applicant's visa. The Parliamentary Secretary made that decision using the unofficial title of "Assistant Minister". 2 The amended application was filed on 8 December 2017 on behalf of the applicant, following orders made that day that the applicant be given leave to file an amended application for review in terms raised at the case management hearing, which also took place on that day. The sole ground in the amended application, apart from seeking costs, was to seek an order that the decision of the Parliamentary Secretary to the Minister for Immigration and Border Protection not to revoke the cancellation of the applicant's visa under s 501(3A) of the Migration Act 1958 (Cth) be quashed. The grounds in support of that relief relied upon an assertion that the revocation decision was invalid because there was no valid decision under s 501(3A) of the Migration Act that was capable of being revoked under s 501CA. 3 The amended application relied upon a Mr John Falzon, the plaintiff in another case pending before the High Court, succeeding in an argument that s 501(3A) was invalid. If Mr Falzon succeeded, so would the present applicant. If not, the present applicant's amended application had to fail. Accordingly, the matter was stood over for a case management hearing to be listed at 9.00 am on the Friday following the High Court's decision after the hearing in Falzon v Minister for Immigration and Border Protection [2017] HCATrans 230 on 14 November 2017. 4 On 7 February 2018, the High Court handed down its decision in Falzon v Minister for Immigration and Border Protection [2018] HCA 2, dismissing an application brought upon the basis that s 501(3A) of the Migration Act was invalid. The High Court unanimously determined that s 501(3A) was not invalid, albeit with some difference in the reasoning between the various judgments. It follows that the present amended application cannot succeed and ultimately must be dismissed. 5 This matter was unable to be listed on the Friday following the handing down of the decision in Falzon because of the unavailability of the applicant's then counsel. The applicant is in immigration detention on Christmas Island. Accordingly, the matter was listed for case management hearing on 12 February 2018, on reflection, too early at 9.00 am, which was only 5.00 am on Christmas Island. By that time, the former counsel for the applicant had, by leave, withdrawn, upon the basis of giving the applicant a binary choice between him appearing and the amended application being dismissed, or him no longer appearing. The appellant had not agreed to his amended application being dismissed in light of Falzon and accordingly counsel sought and was granted leave to withdraw. It should be recorded that the stance that counsel took was entirely appropriate, given the terms of s 486I of the Migration Act, which require certification on a court initiating process that there are reasonable grounds for believing that migration litigation has reasonable prospects of success. 6 When the matter was called on for a case management hearing on 12 February 2018, no answer was received upon calling the contact telephone number provided for the applicant. Given the time of day on Christmas Island, that was, perhaps, not surprising. The solicitor for the Minister expressed concern that the present amended application proceed to a determination, but acknowledged that any other grounds of review that were before the Court would have to be determined first. However, at that time there were no other grounds beyond those conclusively determined adversely to the applicant by the decision in Falzon. Meeting the competing interests was achieved by listing the hearing of the existing amended application for hearing just over three weeks after the 12 February 2018 case management hearing, that is, on 6 March 2018, and allowing the applicant two weeks in which to bring any application to further amend his amended application. 7 A document entitled "Originating application for review of a migration decision" and signed by the applicant was subsequently emailed to the Court on 18 February 2018. The applicant was advised by email that this would be treated as an application to further amend the existing amended application. The grounds that the applicant now wishes to advance are as follows (reproduced verbatim): 1. considerations The error of law ,where decision maker wrongly applied the law :in regards to Direction 65 the wellbeing of a child of Australian citizenship was not observed 2. The decision maker wrongly took in to account of irrelevant consideration or failed to take into account relevant consideration 3. The decision maker acted beyond its responsibilities or acted improper purpose : This law violates the constitution 4. It was listed that I did served an 18 month jail term I only did 9 months with 9 months to be served on parole 5. The respondent considered himself to be bound by s 501(3A) of the Act to cancel the Applicant's visa in circumstances that the provision invalid as contrary to chapter III of The Constitution of Australia. 8 The following observations may be made of those proposed grounds: (1) The first proposed ground is misplaced because the Parliamentary Secretary was not bound by Direction 65: see Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 250 FCR 209. Further, upon reviewing the reasons given by the Parliamentary Secretary, it is clear that the best interests of the children of the applicant were taken into account and treated as a primary but, ultimately, not determinative consideration. (2) The second proposed ground does not contain any particulars to make it meaningful, being no more than a scattergun allegation. (3) The third proposed ground is also unintelligible. (4) The fourth proposed ground raises only a factual or merits ground, and, in any event, seems to be misconceived insofar as a term of imprisonment giving rise to a "substantial criminal record" under s 501(7)(c) is referrable to the head sentence imposed, and not to any non-parole period. In any event, it does not raise any jurisdictional error. (5) The fifth proposed ground is effectively the same as that in the existing amended application, raising the unsuccessful Falzon ground. 9 The applicant indicated by email communication prior to 6 March 2018 that he wished to have counsel continue to act for him, albeit in order to try to find any alternative basis upon which to continue in his quest to overturn the non-revocation decision made by the Parliamentary Secretary. He also sought the issue of a further certificate for referral to the Court's pro bono scheme. However, I did not consider that it was appropriate to facilitate the further use of that scheme in circumstances in which the applicant has had the benefit of advice and assistance through that scheme from experienced counsel in the immigration jurisdiction, and only seeks a further referral because the advice that he has been given is apparently not to his liking. 10 In order to understand what the applicant now seeks to achieve by his application to further amend the existing amended application and why it should not be allowed, it needs to be observed that the original application for review brought by the applicant did not raise any intelligible grounds of review either. The proposed amended application which his then pro bono counsel initially sought leave to file on 8 December 2017 raised matters that were not within the jurisdiction of this Court and were solely within the jurisdiction of the Federal Circuit Court of Australia, being a challenge to the original visa cancellation decision, rather than the decision not to revoke that cancellation. As the then existing application was doomed to fail due to not raising any viable grounds of review, the choice on 8 December 2017 was between: (1) refusing leave to file the proposed amended application outright, because it was not cast in a way to engage the issue in Falzon and only raised matters that were not within the jurisdiction of this Court; or (2) granting leave to file an amended application cast in terms that relied upon the cancellation power in s 501(3A) being invalid, which would result in: (a) immediate success for the applicant if the decision of the High Court in Falzon was to find that s 501(3A) of the Migration Act was invalid; or (b) immediate failure for the applicant if s 501(3A) of the Migration Act was not found to be invalid. 11 The last of those possible outcomes has eventuated. Leave was sought, granted and acted upon to file an amended application raising what might conveniently be referred to as a Falzon ground, Mr Falzon failed to convince the High Court that s 501(3A) was invalid, and the ground of review in the amended application must therefore fail. 12 It would be improper to allow the applicant to further amend his amended application for review to advance grounds of review that have no prospect of success for the reasons outlined at [8] above. Accordingly, the application to further amend the existing amended application must be refused. 13 The existing amended application must fail for the reasons already given. The amended application must therefore be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.