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[2023] FCA 338
Federal Court of Australia
2023-04-14
Kiefel CJ, Gleeson JJ, Colvin J
Original judgment source is linked above.
COLVIN J: 1 Mr Climo is a citizen of New Zealand and Canada. He has lived in Australia since he was 24 years of age. He is now 51. His visa was cancelled in March 2019 when he was serving a term of imprisonment after being convicted of importing a marketable quantity of methylamphetamine into Australia. He applies for an extension of time in which to seek judicial review of a decision by the Administrative Appeals Tribunal to affirm a decision by a delegate of the Minister not to revoke the cancellation of his visa. 2 The power to extend time for bringing a review application is conferred by s 477A(2) of the Migration Act 1958 (Cth). It is a power to extend if (a) an application is made for an order extending time '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'. As to the nature and extent of the power, in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28, Kiefel CJ, Gageler, Keane and Gleeson JJ said at [12]: The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice. (footnote omitted) 3 Further, the merits of the proposed substantive application are properly to be taken into account and in doing so the Court is not confined to undertaking an impressionistic assessment of merit: at [13], [20]. 4 Mr Climo's visa was cancelled under s 501(3A) of the Migration Act. On review before the Tribunal, he sought the exercise of the power conferred by s 501CA(4) to revoke the cancellation. The Tribunal, standing in the shoes of the Minister's delegate, could revoke the decision if it was satisfied (a) that the person passed the character test; or (b) that there is 'another reason why the original decision should be revoked': see s 501CA(4). 5 It is common ground that because he had been sentenced to a term of imprisonment of more than 12 months, Mr Climo did not satisfy the character test. It is also common ground that in deciding whether there was 'another reason' why the visa cancellation decision should be revoked the Tribunal was required to comply with 'Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA' (Direction) and that a failure to comply with the Direction may constitute jurisdictional error. 6 The applicant seeks an extension of time in order to advance two grounds of review said to constitute jurisdictional error. They are to the following effect: (1) The Tribunal erred in assessing the likelihood of any reoffending by Mr Climo resulting in drugs being brought into the Australian community because it ignored, overlooked or misunderstood the fact that the authorities prevented the successful importation of the drugs in relation to which Mr Climo was charged and convicted and its conclusions were illogical and unreasonable as a result. (2) The Tribunal erred in finding that the best interests of the applicant's two minor half-siblings did not fall for consideration under para 8.3 of the Direction. 7 In oral submissions, ground 1 was articulated as an alleged failure to carry out the statutory task of review by reference to the representations made. The claim that there was legal unreasonableness was not pressed. 8 For the following reasons both of the proposed grounds are lacking in merit. Therefore, no purpose would be served by extending time to bring them and the application for an extension of time should be refused.
Ground 1: Successful prevention of importation of drugs by Mr Climo 9 The Direction identifies considerations that a decision-maker is required to take into account 'where relevant'. Some considerations are identified as 'primary' and some are identified as 'other'. Primary considerations 'should generally' be given greater weight than other considerations. 10 The first of the primary considerations is 'protection of the Australian community from criminal or other serious conduct' (para 8(1)). As to that consideration, the Direction states that 'decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding …' (para 8.1(1)). It then provides (para 8.1(2)) that decision-makers should give consideration to: a) the nature and seriousness of the non-citizen's conduct to date; and b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct. 11 The Direction then sets out detailed matters to be considered as to each of the above considerations (paras 8.1.1-8.1.2). 12 In its reasons, the Tribunal referred to the relevant provisions of the Direction. It concluded that the risk of harm to the Australian community if Mr Climo was to engage in further criminal conduct is objectively high, that his offending was so serious that any risk of it being repeated is unacceptable and that the protection of the Australian community from future harm together with the expectations of the Australian community outweighs any considerations weighing in favour of revoking the cancellation of Mr Climo's visa. 13 Mr Climo submits that the authorities were successful in stopping the importation of drugs by him and that there is no suggestion that he was successful in supplying drugs to anyone in the Australian community. He contends that, in that context, the Tribunal failed to consider the fact, said to be apparent from the essential facts of Mr Climo's conviction, that Australia has strict border controls 'that make the success of any reoffending less likely'. This is said to be a 'protective factor' that was overlooked by the Tribunal. 14 In effect, it is said that the Tribunal failed to give effect to the Direction because it did not bring to account the likelihood that any future attempt by Mr Climo to import drugs would be thwarted. 15 It is not suggested that a representation of that kind was made to the delegate or to the Tribunal. Rather, it is said that the reasoning of the Tribunal discloses that the prospect of Mr Climo being detected if he tried to import drugs into Australia in the future was a matter that arose from the facts and was overlooked when the Tribunal considered the risk of harm to the Australian community. The way the claim was put in oral submissions was that the Tribunal failed to perform its statutory task of complying with the Direction by considering that evidence when addressing the nature of the harm should Mr Climo engage in further criminal conduct of the same kind. 16 Unsurprisingly, the prospect of detection and arrest if the person whose visa has been cancelled was to re-offend is not, of itself, a matter that is required to be considered by the Direction. Rather, the Direction focusses upon whether there is a likelihood of re-offending and the consequences if such re-offending was to occur. Therefore, it is not the case that the Direction required a matter of the kind alleged to be considered by the Tribunal. Rather, the Tribunal was required to consider the risk to the Australian community if Mr Climo was to re-offend. There is no doubt that it did consider that risk and did so in some detail. The complaint made is that a particular aspect not specifically addressed in the Direction (the prospect that Australia would be protected from such risk because any future importation of drugs would be thwarted by border protection authorities) was not considered. A failure of that kind is a not a failure to give effect to the task of complying with the Direction. 17 Further, the facts were that Mr Climo sought to import drugs into Australia by concealing them in a welder that he purchased in Thailand and that an earlier attempted importation by mail had also been thwarted. Those isolated facts did not give rise to an issue as to whether Australia was protected from any future importation attempt by Mr Climo by reason of its border protection arrangements. 18 Therefore, it is not arguable that the Tribunal ignored, overlooked or misunderstood a representation to the effect that any future attempt at importation by Mr Climo would be thwarted.
Ground 2: Best interests of two minor half-siblings 19 Ground 2 relies upon provisions of the Direction that require the Tribunal to have regard to whether the revocation of the visa cancellation is or is not in the best interests of a child affected by the decision. It may be accepted that a failure to have regard to such interests would be a failure to conform to the Direction of a kind that would amount to jurisdictional error: see, for example, RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 201 at [43]-[46] (Bromberg, O'Callaghan and McEvoy JJ). 20 Mr Climo's father has two other young children who were half-siblings to Mr Climo. They were aged 4 and 9 years at the time of the Tribunal proceedings. The Tribunal reasoned in the following way concerning the best interests of minor children affected by the decision: (1) it began by referring to the relevant provisions of the Direction (paras 111-112); (2) it considered the best interests of Mr Climo's own minor children (in a manner that is not criticised) (paras 113-115); (3) it then addressed the interests of Mr Climo's half-siblings; (4) the Tribunal began by setting out a submission made for Mr Climo to the effect that Mr Climo might be able to form some sort of parental relationship with the children and that his father is of an age where Mr Climo might have to assist (para 116); (5) it stated its understanding of the extent of the evidence of Mr Climo is relation to his half-siblings 'to be that he wanted to be a part of [their] lives and to be a positive influence, without any reference to that role being of a parental nature' - the relevant passage from the evidence of Mr Climo was quoted (para 117); and (6) finally, the Tribunal reasoned at para 118 as follows: In any event, that submission was raised for the first time at the closing of the hearing such that the Respondent had no notice of it. Therefore, and either way, the Applicant made no specific claims regarding his half-siblings and therefore their best interests do not properly fall for consideration under para 8.3 of Direction No. 90. 21 Three submissions were made as to why it was arguable that the above reasoning involved reviewable error. Significantly, none of them challenged the proposition that the full extent of the evidence given by Mr Climo himself was that he wanted to be a positive influence in their lives. 22 First, it was said that the reasoning displayed error as to the Tribunal's understanding of the extent of the evidence because there was evidence of visitor records which showed that the two young children had visited Mr Climo in gaol. However, the submission proceeds on the basis of a misinterpretation of the reasons. The Tribunal's reasons refer to the extent of the evidence given by Mr Climo which might support the submission about a future parental relationship. It is not suggested that the Tribunal failed to state the extent of the evidence of Mr Climo as to that matter. The evidence to the effect that the half-siblings had visited Mr Climo in gaol was not part of the evidence given by Mr Climo concerning his possible future relationship. In context, the Tribunal was addressing the evidence of Mr Climo himself and whether it supported the submission that has been made concerning his possible future relationship with his half-siblings. The submission that the reasoning shows that the Tribunal overlooked the evidence about the visits is without foundation. 23 Second, it was said that there was no need for a clearly articulated claim as to the interests of Mr Climo's half-siblings because the Direction required regard to their interests even if no submission was advanced to that effect. However, the reasoning did not rest upon a failure to raise any claim. Rather, it was a conclusion that 'either way' there were no specific claims. This was a conclusion that there was no evidence from Mr Climo and the matter was raised for the first time in closing submissions. The conclusion that there was no evidence from Mr Climo is a separate and sufficient pathway to support the Tribunal's reasons. The submission fails to demonstrate why the Tribunal could not conclude by reference to the limited extent of the evidence given by Mr Climo that there were no specific claims about the way in which his removal from Australia might affect the interests of his half-siblings and why, in those circumstances, there was a failure to consider a claim as to the interests of Mr Climo's half-siblings. 24 Third, it was said that the Direction did not limit consideration to the best interests of children with a parental relationship. The reasoning of the Tribunal did not proceed on such a basis. Rather, the Tribunal engaged with the submission that had been made to the effect that Mr Climo might be able to form some sort of parental relationship with his half-siblings. There was no identification of any other respect in which the interests of the half-siblings might be affected by the removal of Mr Climo from Australia. 25 It follows that there is no proper foundation for the alleged error. 26 For completeness I note that the Tribunal was not required to address all of the evidence. It was required only to consider the matters identified in the Direction. It did so by considering the interests of the half-siblings. It did not need to refer to every piece of evidence. It needed only to address the representations within the bounds of rationality and reasonableness. It did so. As to these matters see Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [25]-[27]; and ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [6]-[9]. 27 Additionally, as the submissions for Mr Climo recognised in order to demonstrate jurisdictional error as alleged by ground 2 it would also be necessary for Mr Climo to establish materiality. On the assumption that there was an error of the kind alleged, real issues would arise as to materiality. However, it is not necessary to express any view in that regard because ground 2 as articulated is without merit. 28 For those reasons the application for an extension of time should be refused. It was accepted that costs should follow the event. There should be an order for costs to be paid by Mr Climo. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.
Climo
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs