EGM17 v Minister for Immigration and Border Protection

1. The applicant's application under s 477A(2) of the Migration Act 1958 (Cth) for an extension of time is dismissed.
2. The applicant is to pay the costs of the first respondent as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SNADEN J: 1 By an application dated 16 November 2017 (which was filed four days later on 20 November 2017), the applicant seeks an order to extend the time within which he might make an application under s 476A of the Migration Act 1958 (Cth) (hereafter, the "Act"). The application to this court (hereafter, the "Extension Application") appears to have been made by the applicant personally. It cites s 477 of the Act as the statutory source of this court's power to grant the relief that is sought; but it is tolerably clear that, in fact, the applicant moves for an order under s 477A of the Act. 2 The first respondent (hereafter, the "Minister") opposes the extension of time that is sought. He accepts that the application should be read as though one made under s 477A of the Act. 3 That provision relevantly provides as follows: (1) An application to the Federal Court for a remedy to be granted in exercise of the court's original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. (2) The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Court 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. … 4 The Extension Application is made under Div 31.3 of the Federal Court Rules 2011 (Cth) (hereafter, the "Rules"). Rule 31.23 provides as follows: (1) A person who wants to apply for an extension of time within which to lodge an application for the review of a migration decision under section 477A(2) of the Migration Act 1958 must file an application for extension of time, in accordance with Form 67. (2) An application for an extension of time must be accompanied by: (a) an affidavit stating: (i) briefly but specifically, the facts on which the application relies; and (ii) why the application was not filed within time; and (b) a draft originating application that complies with rule 31.22. Note: The notes to rule 31.22 also apply to applications for extensions of time. 5 In support of his Extension Application, the applicant swore and read two affidavits; one dated 15 November 2017 and one dated 29 March 2018. As the Rules require, there was attached to the first of those affidavits a draft originating application for review of a migration decision. I describe it as a draft: it did not self-describe that way but it is convenient to treat it as such for the time being. 6 Before turning to that document (hereafter, the "Proposed Review Application"), I should briefly state the nature of the case in respect of which the Extension Application is made. The applicant is a citizen of India. He arrived in Australia on 27 March 2008 on a student (subclass 573) visa. His wife was the primary visa holder and he was given one as a member of her family unit. In May 2011, after his wife had completed her studies, the applicant was given a regional skilled (subclass 487) visa, again as a result of his wife having qualified under that category (and of his qualifying as a member of her family unit). That visa was cancelled on 14 January 2016. 7 In February 2016, the applicant was convicted of and jailed for various domestic violence offences. Upon his release from prison, he was placed in immigration detention. In September 2016, whilst in detention, he applied for a bridging visa. That application was declined, presumably on the basis that he did not then have on foot an application for a protection visa. He corrected that on 3 February 2017, when he applied for a protection (subclass 866) visa (an application that I shall refer to, hereafter, as the "Protection Visa Application"). Six days later, he again applied for a bridging visa (hereafter, the "Bridging Visa Application"). It is to that Bridging Visa Application that the present Extension Application in this court pertains. 8 On 8 March 2017, a delegate of the Minister refused the applicant's Protection Visa Application. He subsequently applied to the second respondent (hereafter, the "Tribunal") for a review of that decision. On 5 May 2017, a delegate of the Minister refused, under s 501(1) of the Act, to grant the applicant's Bridging Visa Application. The delegate, having invited the applicant to convince him otherwise, was not satisfied that the applicant passed the character test for which s 501(6) of the Act provides. 9 That decision, too, was the subject of an application to the Tribunal for review (hereafter, the "Bridging Visa Review Application"). On 28 July 2017, the Tribunal affirmed the delegate's decision to refuse the applicant's Bridging Visa Application on the basis that he did not pass (or did not satisfy the Tribunal that he passed) the character test. 10 The applicant now wishes to apply to this court for judicial review of that decision (hereafter, the "Tribunal's Bridging Visa Decision"). That application would, in the normal course, be brought within the original jurisdiction conferred upon this court by s 476A(1)(b) of the Act. As is set out above, s 477A(1) of the Act gave the applicant 35 days - or until 1 September 2017 - to lodge an application in this court to that end. That deadline came and went (although, as is explored below, the applicant maintains that he filed an application in time, albeit in the wrong registry). On 16 November 2017 - 111 days after the Tribunal's Bridging Visa Decision - he made the Extension Application with which the court is presently confronted. 11 I return to that Extension Application and, in particular, to the Proposed Review Application that was attached to the affidavit that the applicant swore in support of it (and which is to be filed in the event that the court grants the extension of time that is now sought). That Proposed Review Application records the following (errors and emphasis original): This application is made under section 476A of the Migration Act 1958. The Applicant decision was made by the first respondent on 28 June 2017 and the applicant was notified on 11 August 2017 of the decision that is the subject of this application. Details of relief sought 1. Extension of time should be granted to this application. 2. An order that the decision of the tribunal, Minister be quashed. 3. A writ of mandamus directed to the tribunal, Immigration Assessment Authority or Minister, requiring them to determine the applicant's application according to law. 4. Order for certiorari to quash the decision made by the First respondent on 8 June 2017. 5. The First respondent to reconsider, according to law, the applicant's application for review. 6. The respondent pay the applicant's costs and disbursement properly incurred, in accordance with part 40 of chapter 5 of the Federal Court Rules 2011 (Cth). 7. Such further orders as the court consider appropriate. 12 In oral submissions before me, the applicant confirmed that the references to the decisions of "28 June 2017" and "8 June 2017" were intended to be references to the Tribunal's Bridging Visa Decision (which is dated 28 July 2017). The decision referred to at [2] and the application referred to at [3] are, respectively, the Tribunal's Bridging Visa Decision and the applicant's Bridging Visa Review Application. Before me, the applicant confirmed that the references to the decision and application referred to at [4] and [5] respectively were also intended to be references to the Tribunal's Bridging Visa Decision and the applicant's Bridging Visa Review Application. There is, then, some overlap between [2] and [4], and [3] and [5]. 13 The grounds upon which the applicant would prosecute his Proposed Review Application (in the event that he is permitted to file it) are said to be "set out in the accompanying affidavit". It is convenient to set out in full the content of the applicant's affidavit of 15 November 2017. It reads as follows (errors original): I am the applicant in this proceeding before court. 1. The First respondent's decision on 28 June 2017 quashed. 2. The respondent decision was unreasonable. 3. The respondent took into account irrelevant considerations. 4. The respondent's decision involved an error of law. 5. The respondent in making the decision did not comply with rules of natural justice and I the applicant was denied procedural fairness. 6. The respondent failed to take into account relevant considerations 7. The Decision was in the breach of the ministerial direction no 65 as Australia's non Refoulement obligations stated . 8. The AAT decision was in breach of the Australia's non Refoulement obligations and the ICCPR Convention. 9. The risk of separation from children and other family members due to person's detention or refusal of visa resulting in the breaches of articles 17 and 23 of the ICCPR Convention. 10. By taking in consideration all the grounds stated above and using the sole applicant self represented, I highly believe that these grounds are reasonable for believing that this migration litigation has reasonable prospect for success 14 Before coming to the apparent merits of the applicant's Proposed Review Application, I should say something about the principles that govern the court's discretion to grant an extension of time under s 477A of the Act. In Pohahau v Minister for Home Affairs [2019] FCA 1243, [34], Wigney J said of them as follows: …the Court will generally have regard to considerations such as the length of the delay, [whether] the reasons for the delay have been adequately explained, any prejudice to the Minister from the delay and the prospects of success of the proposed application: SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [46]-[47]; SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [47]. 15 The relevant principles are, then, not materially different to those that regulate applications for extensions of time to appeal to this court from the Federal Circuit Court of Australia. In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 (Perram, Farrell and Perry JJ), the full court listed (at [20]) the principles relevant to that question as follows: (1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so. (2) The length of the delay is a relevant factor. (3) The appellant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time. (4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time. (5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account. (see also: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86, [6] (Flick, Griffiths and Perry JJ); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-349 (Wilcox J); SZSPR v Minister for Immigration and Border Protection and Another (2013) 139 ALD 109, 113 [16] (Farrell J); BAO15 v Minister for Immigration and Border Protection (2016) 151 ALD 352, 356 [19] (Perry J); SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91, [18]-[19] (Murphy J); BYY15 v Minister for Immigration and Border Protection [2018] FCA 116, [12] (Steward J)). 16 Consideration of the merits of the Proposed Review Application, should an extension of time be granted, does not require detailed analysis of the grounds upon which it is proposed that it might proceed. It is sufficient that the court form a "reasonably impressionistic" assessment of their prospects: MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478, 482-483 [21], 486 [38] (Tracey, Perry and Charlesworth JJ). 17 I turn, first, to consider the length and impact of, and explanation for, the delay in the present case: that is, the reason or reasons why it was that the applicant did not file an application for review in this court within the 35-day timeframe for which s 477A(1) of the Act provides. It is, clearly enough, the case that the Minister would not suffer any material prejudice were an extension of time to be granted. Nonetheless, there is an obvious public interest in the finality of administrative decision making, to which it is, I think, appropriate to pay some regard. 18 As I have stated, it was not until 16 November - some 111 days after the Tribunal's Bridging Visa Decision - that the applicant made the Extension Application in this court. His affidavits identify no valid explanation for that delay and the one that he provided to me at the hearing was confusing. He claimed to have filed an application to review the Tribunal's Bridging Visa Decision in the court's Perth registry, and to have done so before the 1 September 2017 deadline. He produced (and, sensibly, the Minister did not object to the court's receipt of) a document that, he contended, verified that he had done so. That document was an email exchange comprised of two communications. The first was an email dated 1 September 2017 that appears to have been sent by somebody in the court's Perth registry to the detention facility in which the applicant then resided. The relevant text of that communication was as follows: We have received your application and affidavit and advise that if may be out of time. Please review your application and address the extension of time question then re-fax together with the attached exemption from fees. 19 The second was another email to and from the same addresses, this one dated Monday, 4 September 2017. The relevant text of that exchange was as follows: We have received your application and affidavit with the whole decision from the AAT and note that this decision was made in the Victorian Registry of the Administrative Appeals Tribunal. Please note, that Appeals are to be registered and heard in a state where the original application was lodged. Please re-lodge your appeal through the Victorian Federal Court. 20 The applicant did not produce whatever it was that he says he filed (or attempted to file) prior to (or perhaps on) 1 September 2017. He was also not able to adequately explain why it took him two months thereafter to file his Extension Application. He attributed that delay to his moving from a detention centre near Perth to one at Christmas Island, and to his inability to prepare the appropriate documentation without assistance. Those explanations, with respect, are unconvincing; but, for the reasons that follow, it is not necessary that I should say any more on that issue. 21 Whether or not the applicant can explain the delay, the Proposed Review Application does not possess prospects of success sufficient to warrant the granting of the Extension Application. I shall address each of the grounds that the applicant identifies in his first affidavit (upon some of which he elaborated before me); but, in summary form, it sufficies to note that none of them appears to possess merit sufficient to warrant an exercise of the court's discretion. 22 Before addressing the individual grounds, I should summarise the bases upon which the Tribunal affirmed the Minister's delegate's decision not to grant the applicant's Bridging Visa Application. In short, the Tribunal was not satisfied that the applicant passed the character test. It formed that conclusion after convening a hearing, which took place on 24 July 2017. The applicant supplied written statements and other documents to the Tribunal for the purposes of that hearing; and the Tribunal received oral evidence from the applicant, his wife, a Minister of religion and two former neighbours. 23 The Tribunal also considered - as it was obliged to - what is known as Direction 65: a direction issued by the Minister in December 2014 under s 499(1) of the Act, which compels the Tribunal, in making a decision to refuse or cancel a visa under s 501 of the Act, to have regard to certain circumstances. 24 In its 21-page written decision, the Tribunal carefully considered each of the aspects of Direction 65 that it was obliged to consider. Regard was had to the applicant's criminal history, and to the applicant's explanations for it. The Tribunal noted that, in February 2016, the applicant had been convicted of domestic violence offences that left his wife with a broken collarbone. The applicant told the Tribunal that, on the occasion in question, he had been drinking and had gotten into an altercation with his wife. He had pushed her and, for reasons that he was unable to explain, she "just fell down". He told the Tribunal that he had not committed some of the offences to which he had pleaded guilty. He described his offending, or parts of it, as accidental. 25 The Tribunal noted that the applicant has breached apprehended violence or intervention orders; and that he had had three court appearances over a six-year period. He was sentenced to more than 12 months' imprisonment for the attack on his wife in 2015 that was the subject of his conviction in February 2016 (and that led to her suffering a broken collarbone, seeking refuge in a shelter and being granted a 12-month intervention order against the applicant). The applicant pointed out that his custodial sentence was, in fact, for a total of eight months (on account of the fact that some of the punishment was to be served concurrently). For the purposes of s 501 of the Act, however, the Tribunal was required to treat those concurrent sentences as though cumulative: the Act, s 501(7A). The Tribunal ultimately concluded that the applicant's offending was serious, and that it appeared to have escalated over the years. 26 The Tribunal then considered - again, as Direction 65 required that it should - the risk that the applicant posed to the Australian community. It concluded, in light of the applicant's convictions for offences involving domestic violence, that "there would be significant harm to individuals or the Australian community should [the applicant] engage in further criminal or other serious conduct". It took account of courses that the applicant undertook whilst in prison (including one regarding "Release Related Harm Reduction" and one on drug and alcohol use) and a praising reference that the applicant received after his participation in a Holyoake Men's Group Program in April 2017. The Tribunal also heard positive references from the witnesses who gave evidence before it. These things notwithstanding, the Tribunal formed the view on the basis of (amongst other things) the applicant's history of domestic violence offending that there was a risk that the applicant would reoffend. 27 Next, the Tribunal considered the interests of the applicant's children (again, as Direction 65 required that it should). It was satisfied that their interests would be served if the applicant's Bridging Visa Application was granted. 28 The Tribunal then considered (again in line with the requirements of Direction 65) the expectations of the Australian Community. In light of his criminal history, it concluded that that consideration weighed in favour of the refusal of his Bridging Visa Application. 29 The Tribunal then turned its attention to other considerations to which Direction 65 required that it have regard, including Australia's non-refoulement obligations, the impact that its decision would have on the applicant's family members, the impact that its decision would visit upon the applicant's victims and the impact that its decision would have on Australian business interests. None of those considerations was material to its ultimate decision. 30 The Tribunal, weighing up the competing considerations summarised above, ultimately concluded that the granting of a visa to the applicant would enliven an unacceptable risk of future harm to the community. The decision of the Minister's delegate not to grant the applicant's Bridging Visa Application was, thus, affirmed. 31 I return, then, to the grounds that the applicant proposes to agitate in the event that he is granted the extension of time to which these reasons relate. In order to succeed, the Proposed Review Application (assuming that the applicant is able to agitate it) would need to demonstrate that the Tribunal's Bridging Visa Decision was the product of jurisdictional error. Each of the grounds identified in the Proposed Review Application, then, must be understood to charge the Tribunal with having committed an error or errors of that kind, such that the prerogative relief that is (or would be) sought should be granted. 32 The first proposed ground of review is, in truth, not a ground: it is simply a summary of what the applicant hopes to achieve by his action in this court. 33 The second ground charges the Tribunal with unreasonableness. I read that as a suggestion that the Tribunal's Bridging Visa Decision was the product of legal unreasonableness of the kind identified in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 351 [29]-[30] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ), 370 [88]-[89] (Gageler J). 34 In considering the Bridging Visa Review Application, the Tribunal was obliged to discharge its statutory function reasonably. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ observed (at 648 [131]) that the search for legal unreasonableness requires consideration of: …whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. 35 To succeed on this front, then, the applicant must identify some aspect of the Tribunal's Bridging Visa Decision that was not open to be decided the way that it was. No such aspect is identified in his grounds and, before me, he was not able to identify any. He said, simply, that the decision was the product of legal unreasonableness because it was "unfair" and because he had no legal representation before the Tribunal. Neither is a source of legal unreasonableness. From my own review of the Tribunal's Bridging Visa Application, I am unable to discern any aspect that might be open to this species of criticism. By his written outline of submissions, the Minister contended that: The Tribunal engaged in a lengthy analysis on the relevant considerations which it was obliged to consider under the Direction. It also anxiously balanced the competing considerations of the Applicant's children and the safety of his wife. It is submitted that the Tribunal's findings were open to it and were not, on any view, unreasonable or irrational in light of the serious offending and history of behaviour of the Applicant against his wife. 36 With respect, I accept that contention. The applicant's second ground of review is (or would be) wholly without merit. 37 The applicant's third ground of review seeks to charge the Tribunal with having taken into account irrelevant considerations. It is convenient to deal with it concurrently with the sixth ground of review, which charges it with having failed to take account of relevant considerations. In both cases, the considerations that the applicant says were or were not taken into account are not identified. Again, before me, the applicant was unable to identify any. Instead, his complaint was that the Tribunal: (1) did not accept the evidence that was led on his behalf, including from his wife and other witnesses who gave evidence in support of his Bridging Visa Review Application; and (2) did not accept that he was imprisoned for fewer than 12 months. 38 It is apparent from the Tribunal's Bridging Visa Decision that the Tribunal took account of all of the evidence that the applicant advanced before it (including of the witnesses who gave evidence on his behalf). His complaint is not so much that the Tribunal failed to take that evidence into account (or took into account other things that it shouldn't have); but, rather, that it didn't form the conclusions from that evidence that the applicant wanted it to form. Although one might understand (without necessarily accepting) the applicant's concerns in that regard, those concerns do not bespeak jurisdictional error. 39 Similarly, it is not the case that the Tribunal wrongly failed to accept that the applicant served fewer than 12 months in prison after his court appearance in February 2016. It is apparent from the Tribunal's Bridging Visa Decision that the Tribunal was conscious (and that the evidence before it substantiated) that the applicant was, on that occasion, convicted on four separate charges, for which he received jail sentences of six, three, three and four months (for a total of 16 months' imprisonment). Eight of those 16 months were expressed to be served concurrently; meaning that the applicant's total effective jail time was eight months. In the Tribunal's Bridging Visa Decision, the Tribunal noted that: [The applicant] insisted that he only had an 8 month sentence but section 501(7)(d) of the Act requires the sentences to be added together to determine if a person had sentences totalling 12 months and therefore fails the character test. 40 The Tribunal's reference to s 501(7)(d) of the Act was possibly misplaced, in that the issue was not so much whether there were sentences of two or more terms of imprisonment; but, rather, what the impact of concurrent custodial sentences should mean for the purposes of assessing compliance with the character test (an issue with which s 501(7A) of the Act more squarely deals, consistently with what the Tribunal concluded). Nonetheless, the applicant's contention is unfounded; and each of the third and sixth proposed grounds of review is without merit. 41 The fourth proposed ground of review charges the Tribunal with having committed an error of law. No such error is identified and, before me, the only error that the applicant could allege was that the Tribunal had wrongly concluded that he had been sentenced to more than 12 months' jail for his offending (as a consequence of which he did not pass the character test for which s 501(6) of the Act provides). I have already addressed that submission (above, [39]-[40]). There was no such error and the fourth proposed ground of review would, therefore and surely, fail if run. 42 The fifth proposed ground of review charges the Tribunal with a failure to comply with the rules of natural justice and to accord the applicant procedural fairness. Again, this proposed ground is entirely unparticularised. Invited to expand upon it in oral submissions, the applicant cited the Tribunal's refusal to accept his contention as to the length of his imprisonment and the fact that he was not legally represented. 43 Again, I have already addressed the first of those contentions (above, [39]-[40]). It is unfounded. As to the second, the fact that the applicant was unrepresented amounts neither to a denial of procedural fairness nor a failure to accord natural justice. The proceeding before the Tribunal was civil in nature. There is no entitlement in such proceedings to legal representation and the affording of procedural fairness did not require that the applicant should have had any: SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 (Katzmann J); Maere v Minister for Home Affairs [2018] FCA 1694, 8 (Bromberg J). 44 By his written submission, the Minister observed that (references omitted): The Tribunal received the Applicant's supporting documents and held a hearing at which it heard oral evidence from the Applicant and several other witnesses who had been called at the Applicant's request. The Applicant, while unrepresented, had the assistance of an interpreter. There is no basis in the evidence to contend that he was denied procedural fairness. 45 Again, I accept that contention. The fifth proposed review ground is without merit. 46 The applicant's seventh and eighth proposed grounds of review concern Australia's non-refoulement obligations and whether the Tribunal correctly addressed them as Direction 65 required. The applicant suggests that it didn't, although it is not clear why, or how that's put. For my own part, I am unable to see any error on the part of the Tribunal insofar as concerns those obligations. In its decision, the Tribunal noted that the applicant's Protection Visa Application had been rejected (as, by that stage, it had, at least at the level of the Tribunal). That notwithstanding, the Tribunal had regard to the applicant's claims that, if returned to India, he would be subjected to risks of harm (including risks arising from difficulties that he claimed to have had in the past with police, the precise particulars of which are unclear). It found that the applicant could relocate to another part of India where those difficulties might be avoided or ameliorated. 47 When asked to elaborate orally upon these proposed grounds of review, the applicant complained that the Tribunal had failed to consider the evidence that he led about his family (in particular, that his children required his presence as a father) and that it had wrongly concluded that he had been sentenced to more than eight months' imprisonment. Both of these are addressed above in the context of other proposed review grounds. Neither has any apparent connection to Australia's non-refoulement obligations. 48 There is no apparent error on the part of the Tribunal on those fronts. The seventh and eighth proposed grounds of review are without merit. 49 The applicant's ninth and final ground of review (the tenth being, in truth, more in the nature of a submission than a discrete ground) is difficult to comprehend. It seems that the applicant suggests that the Tribunal was wrong to conclude that the interests of his children and other family members were not sufficient to warrant his being granted a bridging visa. Although one might well understand why he feels that way, the difficulty with that contention is that it does not disclose jurisdictional error. The Tribunal was entitled (indeed, obliged) to weigh the competing interests of the applicant's children and family with those of the community. It was entitled to form the view that it did: namely, that the interests of the community should prevail. The applicant is - or, if an extension of time were granted, would be - in effect inviting the court to engage in a process of impermissible merits review. 50 With respect, the ninth proposed ground of review has no merit. 51 The Proposed Review Application, were it to be filed and agitated, is foredoomed to failure. Given that want of sufficient prospects of success, the court's discretion to grant the Extension Application should not (and will not) be exercised. The lengthy and inadequately explained delay (if it can fairly be impugned as such) in prosecuting his challenge to the Tribunal's Bridging Visa Decision does not assist the applicant's plight; but, in light of the poor prospects of any review application, that is not a matter that weighs (or needs to weigh) heavily upon the court's discretion. 52 The application will be dismissed with costs. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden.