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[2018] FCAFC 34
respondent. The application for an extension of time within which to seek judicial review of the decision by the Administrative Appeals Tribunal given on 10 May 2017 is dismissed. The applicant is to pay the...
Mr Guo wanted more time to challenge a 2017 decision that upheld a 1996 refusal of his permanent visa because of his bad character. The Full Federal Court said no, because his two legal arguments had no realistic chance of winning. The court explained that the many temporary bridging visas he received over 20 years did not legally affect the decision on a permanent visa and did not have to be considered when weighing his character. It also confirmed that the Tribunal was required to look at all the evidence available in 2017, not freeze the picture in 1996, and that the Tribunal had done exactly that. Because neither argument could succeed, it was not in the interests of justice to give him extra time. He must pay the Minister's costs.
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2,547 words · generated 24/04/2026
Qi Guang Guo, a Chinese national, arrived in Australia in 1988 on a student visa. He was granted a temporary entry permit in 1991 and applied for a Class 815 (PRC) (Permanent) entry permit in June 1994. That application was refused by a delegate on 17 September 1996 under s 501(1) of the Migration Act 1958 (Cth) on the basis that Mr Guo was not of good character. The delegate's handwritten reasons cited a pattern of deception over a number of years, association with persons or groups involved in criminal conduct, and the likelihood that Mr Guo would engage in criminal conduct if allowed to remain, posing a danger to the Australian community.
2 cited instruments linked from this judgment.
The original notification of that 1996 decision was invalid because it failed to inform Mr Guo of the time limits for merits review. Earlier Tribunal applications in 1997, 2003 and 2004 were either dismissed for want of prosecution or refused. A 2014 re-notification was also a nullity. On 6 March 2015 a revised re-notification was given. At that point Mr Guo's transitional (temporary) visa had ceased under s 501F(3) and he became an unlawful non-citizen. He applied to the Tribunal on 18 March 2015 for review of the 1996 decision.
The Tribunal in 2017 published both redacted and un-redacted reasons. It found Mr Guo was not of good character under the version of s 501 in force immediately before 1 June 1999. The findings included prior convictions for possession of a falsified passport and goods suspected of being stolen, involvement on the balance of probabilities in illegal gambling, drug use and a conspiracy to supply a commercial quantity of heroin, and associations with persons involved in drug dealing and organised crime together with exercise of power and authority over such persons. After balancing these matters against factors in Mr Guo's favour (principally the distress removal would cause his Australian-citizen sons), the Tribunal affirmed the refusal at [333]-[334], stating that the seriousness of the conduct outweighed the countervailing considerations and that protection of the Australian community required refusal.
Mr Guo filed an application on 19 June 2017 under s 477A(2) for an extension of time to seek judicial review, outside the 35-day limit in s 477A(1). The Minister opposed the extension on the ground that the application lacked reasonable prospects of success. The two proposed grounds were that the Tribunal (1) failed to take account of the regular grant of bridging visas between 1 September 1994 and 1 July 2011, and (2) misconstrued the test for good character under s 501 as it stood in 1996. The matter was heard concurrently with the substantive application on 3 August 2017. Mr Guo did not appear, having declined transport from Villawood Immigration Detention Centre. An adjournment application was refused. Mr S Prince appeared as amicus curiae on a limited basis, confined to the two draft grounds. A new jurisdictional issue concerning the validity of the 2015 re-notification was raised only in written submissions and was not considered.
The Full Court (Siopis, White and Perry JJ) delivered a joint judgment on 15 March 2018 dismissing the extension application with costs on the basis that neither ground enjoyed reasonable prospects of success and it was not in the interests of justice to grant the extension.
The Court began from the statutory discretion in s 477A(2). An extension is granted only where necessary in the interests of justice. While Mr Guo's explanation for delay (difficulties filing from detention) was not challenged, the decisive factor was the lack of reasonable prospects on the face of the proposed grounds, assessed at a "reasonably impressionistic level" without descending into a full hearing of the merits.
On Ground 1 the Court rejected the contention that the Tribunal ignored a relevant consideration. The Tribunal had expressly listed the 12 bridging visas at [46] and stated at [47] that they were issued but were redundant as a matter of law and irrelevant. The amicus argued this revealed legal error because the bridging visas were not "legally ineffective". The Court held this reading of [47] was without merit. The Tribunal had already accepted at [45] that Mr Guo held a valid transitional (temporary) visa until at least March 2015. The word "redundant" meant unnecessary, not invalid. Critically, s 76 at all material times provided that the holding of a bridging visa does not affect an application for or the grant of a visa of another class. No express or implied statutory obligation required the Tribunal to treat the grant of bridging visas as telling in Mr Guo's favour on the character assessment for a permanent visa. To impose such a requirement would, the Court said, subvert the independent nature of merits review.
The Court further noted that Public Interest Criterion 4001 did not apply to Mr Guo and that the Minister could have refused bridging visas under s 501 but was not obliged to do so. The proposition that the grant of bridging visas should affect the s 501 assessment for a different class of visa was "contrary to s 76". In any event the Tribunal's statutory task, confirmed in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, is to make the correct and preferable decision on the material before it at the time of review, not to review the 1996 decision for error.
On Ground 2 the Court addressed the contention that [309] of the Tribunal's reasons distorted s 501 into a two-step test: first, decide character in 1996, then require the applicant to prove enduring good moral character since that date. The Court held that the passage was taken out of context. At [77] the Tribunal had correctly directed itself that it does not decide on the facts as they stood at the primary decision but must reach the correct and preferable decision on current circumstances, citing Shi. The [309] paragraph referred to earlier hypotheticals at [78] and [82] that expressly contemplated character change for better or worse. The Tribunal recorded at [310] that Mr Guo did not advance a case of genuine change over 20 years but instead claimed an undeserved reputation. It rejected that claim after detailed analysis of evidence both before and after 1996. The use of the present tense in s 501 ("is not of good character") was acknowledged, but the Court emphasised that past conduct and associations remained probative. The Tribunal had not imposed any reversed onus; it had simply evaluated the evidence before it in 2017. Because both grounds were bound to fail, the extension was refused.
The Court also dealt with procedural matters. It refused an adjournment because Mr Guo had notice of the date, having attended a directions hearing by telephone before Griffiths J. It limited the amicus to the two draft grounds and declined to entertain the new re-notification validity argument because it was not raised in the application, instructions were absent, and it risked inconsistent findings with other proceedings.
Prior to this decision the law was settled that the Tribunal on review stands in the shoes of the original decision-maker and must reach the correct and preferable decision on the evidence available at the time of review rather than on the facts as they existed at the original decision date. This principle, drawn from Shi v Migration Agents Registration Authority, was not new in 2018 but was reinforced. Similarly, the proposition that holding a bridging visa does not affect the grant of another class of visa had been statute law since s 76 was enacted. The Hunter Valley Developments principles for extension of time were long-standing.
The judgment did not change the content of the good character test under the pre-1 June 1999 version of s 501. It confirmed that the present-tense language required an assessment of current character but that historical conduct, convictions and associations remain centrally relevant. The decision clarified the limits of what can be treated as a mandatory relevant consideration in the character context: the mere grant of bridging visas over many years, without more, is not such a consideration because of the express terms of s 76 and the independent character of merits review.
Subsequent to the decision the statutory framework has altered. Section 501 has been amended multiple times, introducing mandatory cancellation powers, more prescriptive Direction 65 (later Direction 90 and Direction 99), and a stronger emphasis on protection of the Australian community as a primary consideration. The 35-day time limit in s 477A remains, as does the extension power. The Shi principle continues to govern Tribunal reviews. This judgment therefore sits as an application of established principle to the unusual facts of a 20-year-old decision re-notified decades later, confirming that the passage of time and intervening grants of temporary visas do not automatically dilute the relevance of historical conduct when the Tribunal is seized of the matter in 2017.
At [26]-[27] the Court set out the legal test for extension of time, citing Metera, Fisher and MZYYO which in turn drew on Hunter Valley Developments. Plain English: "We only give extra time if it is fair and just. One big factor is whether the person's legal arguments have any real chance of winning. We look at the arguments in a quick, overall way without deciding the whole case."
At [31] the Court disposed of the bridging-visa ground: "the proposition that the fact that the applicant held a bridging visa should have affected the assessment of whether he should be granted a Class 815 entry permit is contrary to s 76 of the Act which, at all relevant times, provided that the holding of a bridging visa 'does not … affect' the grant of a visa of another class." Plain English: "The law says temporary bridging visas do not influence whether someone gets a permanent visa. The Tribunal was right to call them irrelevant."
At [35] the Court endorsed the Tribunal's self-direction: "The Tribunal does not conduct its review on the basis of the facts as they stood when the decision was made. Rather the Tribunal's duty is to make the correct and preferable decision in light of the circumstances applying at the time of review (Shi …)." Plain English: "The Tribunal decides on today's evidence, not by pretending it is still 1996."
At [36] the Court explained the context of the impugned [309] passage: the Tribunal's reference to "enduring moral character" was hypothetical only and did not create a two-stage test or reverse onus. The Tribunal had found that Mr Guo had not even tried to prove genuine change. Plain English: "Read fairly, the Tribunal was not laying down a new legal test. It was simply saying character can improve or worsen over time, but on the facts Mr Guo had not shown any real improvement and his later conduct still showed bad character."
The concluding sentence at [37] states the outcome: the application is dismissed because any appeal "would not have sufficient prospects of success and it is not in the interests of justice that the extension of time be granted."
This decision is triggered where an applicant seeks an extension of time under s 477A(2) to review a Tribunal affirmation of a historic s 501 refusal and the proposed grounds assert that the Tribunal was required to treat the grant of intervening bridging visas as a mandatory relevant consideration favourable to the applicant. It applies whenever the Tribunal has expressly noted the bridging visas but characterised them as redundant in light of s 76 and has otherwise applied the Shi principle by deciding on the evidence at the time of review.
The judgment is also engaged where a ground alleges that the Tribunal has impermissibly applied a two-stage character test by first deciding character at the date of the original decision and then imposing an onus to prove "enduring" change. The precedent confirms that a holistic reading of the Tribunal's reasons is required; isolated sentences that mention "enduring moral character" in a hypothetical sense will not demonstrate error if the Tribunal has directed itself to decide the correct and preferable outcome on current material and has evaluated all evidence, including post-original-decision conduct.
The factual context of a decades-old delegate decision, invalid notifications, late re-notification, and a lengthy period of lawful residence on bridging or transitional visas is not uncommon in the migration jurisdiction; the decision stands for the proposition that such facts do not, without more, create a legal obligation to treat the grant of temporary visas as weighing against refusal on character grounds.
The judgment has been treated as an orthodox application of Shi. Courts have cited the paragraphs that confirm the Tribunal decides on the material before it at the time of review rather than on the facts as they stood at the original decision. The bridging-visa analysis has been regarded as confirming the strict limits of mandatory relevant considerations in the s 501 context; later decisions have reiterated that the mere fact that bridging visas were granted does not imply any acceptance of good character or bind the Minister or Tribunal when a permanent visa is later considered.
The approach to construing Tribunal reasons contextually, rather than seizing on single sentences, has been followed when assessing alleged misconstruction of the character test. The emphasis on assessing prospects of success at an impressionistic level when deciding extensions under s 477A or analogous provisions has been approved. Because the decision is a relatively recent Full Court authority that applies rather than changes existing doctrine, later courts have cited it for the uncontroversial propositions that s 76 renders bridging visas irrelevant to other visa classes and that the Tribunal's task is to reach the correct decision on the up-to-date evidence.
The judgment expressly left untouched the validity of the 2015 re-notification because that issue was not properly before the Court. Whether a fresh notification given decades after the original decision can validly re-start time limits for review, and what consequences flow if the re-notification is itself defective, remain unaddressed in this proceeding.
The Court did not decide whether, in a case where an applicant does positively advance a case of genuine rehabilitation and change of character over a very long period, the Tribunal would be required to give greater weight to the absence of recent adverse conduct. The hypothetical discussion at [309] and [78]-[82] leaves open the precise weight to be given to lengthy periods of good behaviour when the original conduct was extremely serious.
The interaction between the independent character of Tribunal review and any issue estoppel or abuse-of-process arguments arising from earlier failed Tribunal applications was not resolved. The Court noted the potential for inconsistent findings with separate proceedings but did not decide the point.
Finally, the judgment does not explore the outer limits of what might constitute an implied mandatory relevant consideration in the post-2014 character-cancellation regime. While it is clear that bridging-visa grants are not such a consideration under the 1996 law, the question whether other forms of executive or administrative leniency over many years could become mandatory considerations under current Directions remains for future cases.
THE COURT: 1 INTRODUCTION [1] 2 THE APPLICATION FOR AN ADJOURNMENT [5] 3 THE GRANT OF LEAVE TO APPEAR AS AMICUS CURIAE [9] 4 BACKGROUND [12] 4.1 The 1996 decision by the Minister's delegate refusing the application for a Class 815 entry permit [12] 4.2 Invalid notifications of the 1996 decision and prior applications for merits review [17] 4.3 The 2015 revised re-notification of the 1996 decision and application to the Tribunal [21] 4.4 The Tribunal's decision [23] 5 SHOULD AN EXTENSION OF TIME BE GRANTED? [26] 5.1 Discretion to grant an extension of time [26] 5.2 Does Ground 1 have any merit (alleged failure to have regard to the grant of previous bridging visas)? [28] 5.3 Does Ground 2 have any merit (misconstruction of the test in s 501)? [32] 6 CONCLUSION [37]
4.1 The 1996 decision by the Minister's delegate refusing the application for a Class 815 entry permit 12 The applicant, a citizen of China, arrived in Australia in 1988 on a six-month student visa. His wife and adult sons are Australian citizens who all reside in Australia. The applicant was granted a temporary entry permit on 28 November 1991. He subsequently applied for a Class 815 entry permit on 30 June 1994. That application, which was the decision under review before the Tribunal, was refused on 17 September 1996 (Tribunal's 2017 reasons at [19]). 13 As the applicant already held a Class 437 entry permit, his application for the Class 815 entry permit was also taken to be an application for a Class 437 entry permit under sub-reg 437.711(2) of the Migration (1993) Regulations (Amendment) (Cth) (the 1993 Regulations). The applicant was granted a further Class 437 entry permit on 1 July 1994 (Tribunal's 2017 reasons at [13]). By reason of item 437.52(a) of Schedule 3 to the 1993 Regulations, the Class 437 entry permit was valid until a decision was made on the applicant's application for a Class 815 entry permit and the applicant was notified of that decision in accordance with reg 2.8 of the 1993 Regulations. 14 By operation of sub-reg 4(2) of the Migration Reform (Transitional Provisions) Regulations 1994 (Cth) (the 1994 Regulations), the applicant's Class 437 entry permit was taken to continue in effect as a transitional (temporary) visa subject to the same conditions. Further, by operation of reg 23 of the 1994 Regulations, his application for the Class 815 entry permit was taken to continue as an application for a transitional (permanent) visa, but was to be decided according to the criteria that applied to a Class 815 entry permit. 15 On 17 September 1996, the then Deputy Secretary of the Department of Immigration and Ethnic Affairs (the Deputy Secretary) acting as a delegate of the Minister refused the application for a Class 815 entry permit under s 501(1) of the Act in the exercise of discretion, having found that the applicant was not of good character (the 1996 decision). In the Deputy Secretary's handwritten reasons for decision at the end of the detailed Departmental Minute recommending that he find the applicant was not of good character and refuse the grant of a visa, the Deputy Secretary had regard among other things to the following: • …a pattern of deception in Mr Guo's conduct over a number of years • …Mr Guo's association with persons or groups which, on the balance of probabilities, have been involved in criminal conduct • …on the balance of evidence before [the Deputy Secretary], Mr Guo would be likely to engage in criminal conduct if he was allowed to remain in Australia and that this would represent a danger to the Australian community. 16 The applicant was given notice of the decision to refuse his application for the Class 815 entry permit by letter dated 25 October 1996 (the original notification) (Tribunal's 2017 reasons at [23]).
4.2 Invalid notifications of the 1996 decision and prior applications for merits review 17 The applicant's application to the Tribunal for merits review of the 1996 decision by the Deputy Secretary was dismissed by the Tribunal on 3 November 1997 as a result of his failure to actively pursue it (Tribunal's 2017 reasons at [25]). 18 On 17 January 2003, the applicant lodged two further applications with the Tribunal, namely, to reinstate his earlier application for merits review and for an extension of time within which to lodge a new application. Those applications were refused by the Tribunal on 9 July 2004 (Tribunal's 2017 reasons at [26]-[27]). 19 At some later point in time, the Department and the applicant became aware that the original notification had failed to comply with the mandatory requirements for a valid notice because it did not inform him of the time limits within which to apply for merits review in the Tribunal (Tribunal's 2017 reasons at [28]-[29]). 20 In order to remedy that deficiency, on 3 December 2014, the applicant was served with a further notification of the 1996 decision (the 2014 re-notification). However, that notification was also a nullity (Tribunal's 2017 reasons at [33]).
4.3 The 2015 revised re-notification of the 1996 decision and application to the Tribunal 21 Finally on 6 March 2015, a revised re-notification of the 1996 decision was sent to the applicant in order to correct the error in the 2014 re-notification (the 2015 revised re-notification). The validity of the 2015 revised re-notification was not disputed before the Tribunal (Tribunal's 2017 reasons at [34]-[35]). At that time, the applicant's Class 437 entry permit had ceased to be in force by virtue of s 501F(3) of the Act and he became an unlawful non-citizen (Tribunal's 2017 reasons at [38]-[39]). 22 On 18 March 2015, the applicant filed the application for merits review of the 1996 decision, being the application resolved by the Tribunal's decision on 10 May 2017.
4.4 The Tribunal's decision 23 We note that the Tribunal published both redacted and un-redacted reasons for its 2017 decision, with the former being reproduced in the appeal book and the latter, in a supplementary appeal book. There were no differences between the redacted and un-redacted versions of the 2017 reasons which were relevant to the application for an extension of time or to the determination of the application for judicial review if an extension were granted. In those circumstances, we have referred to the paragraph numbers of the redacted version of the Tribunal's reasons. 24 The Tribunal found that the applicant was not of good character within the meaning of s 501 of the Act as that provision stood immediately before 1 June 1999 based on a number of findings, including: (1) the applicant's prior criminal convictions, including being in possession of a falsified foreign government passport and being in possession of goods reasonably suspected of being stolen (both of which were committed in circumstances found by the Tribunal to be not only a serious breach of the law, but also evidence of his want of good character) (Tribunal's 2017 reasons at [246]-[258]); (2) on the balance of probabilities, the applicant's involvement in other past criminal conduct including illegal gambling, drug use and a conspiracy to supply a commercial quantity of heroin (Tribunal's 2017 reasons at [254]-[291]); and (3) his association with persons involved in drug dealing and organised crime, and his exercise of "power and authority" over persons involved in organised crime (Tribunal's 2017 reasons at [292]-[306]). 25 The Tribunal concluded that: 333. Balancing all of the considerations that we have accepted to be relevant, we are satisfied that the seriousness of Mr Guo's proven criminal conduct and his proven association with persons involved in criminal conduct show such want of good character as to outweigh what we have found to be relatively modest factors in his favour - with the exception of the distress that his removal will cause to his sons. Even with that significant factor added to the balance, we would still exercise the discretion to refuse Mr Guo the visa he has sought. 334. We accept the Respondent's submissions that s 501 as was in force requires us to take into account the protection of the Australian community. We have found Mr Guo's conduct and adverse character as proven in these proceedings is sufficiently serious as to engage those principles. We do not find the countervailing factors sufficient to outweigh that. We decline to exercise the discretion in his favour.
5.1 Discretion to grant an extension of time 26 The applicant requires an extension of time within which to seek judicial review of the Tribunal's decision in the Federal Court because his application was filed outside the 35 day time limit imposed by s 477A(1) of the Act. Under s 477A(2), this Court has a discretion to make an order extending time where the Court is satisfied that it is necessary in the interests of justice to make the order. In considering whether to exercise the discretion in an applicant's favour, the Court considers among other things the applicant's reasons for delay and whether the application, if an extension of time were granted, would have any prospects of success: Metera v Administrative Appeals Tribunal [2008] FCA 1627 at [22]-[23] (Cowdroy J) (quoting Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299; [2007] FCA 591 at [35] (Stone J)); MZYYO v Minister for Immigration and Citizenship [2013] FCA 49; (2013) 214 FCR 68 at [30] (Murphy J) (applying Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J)). 27 In his affidavit in support of the extension of time, the applicant referred to a number of difficulties with filing the correct documentation from immigration detention. No issue is taken with his explanation for the delay. However, the Minister opposes the grant of an extension of time on the basis that the application lacks any reasonable prospects of success. In considering this question, the proposed grounds of judicial review should be considered on their face and examined at a "reasonably impressionistic level"; the Court should not descend into a fuller consideration of the arguments for and against each ground (see by analogy MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38] (the Court)).
5.2 Does Ground 1 have any merit (alleged failure to have regard to the grant of previous bridging visas)? 28 Proposed Ground 1 of the draft application for judicial review contends that the Tribunal failed to take account of the fact that the Minister had granted various bridging visas to the applicant from 1 September 1994 to 1 July 2011. The 12 bridging visas granted sequentially to the applicant over this period are set out at [46] of the Tribunal's reasons. The amicus, however, submits that the Tribunal erred in finding at [47] that: As a matter of prudence, lest we be mistaken as to their significance, we note that those bridging visas were issued. However, we proceed on the basis that they were redundant, as a matter of law, and irrelevant to the matter before us. 29 First, the amicus submitted that while the bridging visas were practically unnecessary, the Tribunal wrongly found that they were "redundant as a matter of law", that is that they were "legally ineffective" or invalid. It was not in issue that throughout the 20 year period, s 76 of the Act provided that the fact that a non-citizen holds a bridging visa does not affect an application for a visa of a different class or the grant of such a visa. As such, the fact that the applicant continued to hold a valid transitional (temporary) visa until at least 6 March 2015 did not "cancel" the last of the bridging visas. However, the Tribunal was plainly not suggesting that the bridging visas were "legally ineffective". Rather, having accepted that the applicant held a valid transitional (temporary) visa at [45] of its reasons, the Tribunal simply found that the bridging visas were "redundant", that is, unnecessary, "as a matter of law." The amicus' submission turns on a construction of [47] of the Tribunal's 2017 reasons which is, with respect, without merit. 30 Secondly, as the amicus accepted, Public Interest Criterion 4001 requiring compliance with a character test before a person could be granted a visa did not apply to the applicant contrary to his proposed first ground of judicial review. Nonetheless, the amicus submitted that it would have been open to the Minister to refuse the grant of any of the bridging visas under s 501 of the Act in its various forms over the 20 year period on the basis that she or he was satisfied that the applicant did not meet the character test. In failing, therefore, to have regard to the fact that the Minister had not refused the grant of any of the 12 bridging visas under s 501 despite most of the matters relied on by the Tribunal in 2017 being known to the Minister, the amicus submitted that the Tribunal failed to have regard to a relevant consideration and wrongly found that the grant of the bridging visas was "irrelevant". 31 Again the ground has no reasonable prospects of success. At no time was there any express requirement for such considerations to be taken into account under the Act; nor was any basis suggested on which such a requirement could be implied. To the contrary, as the Minister's counsel submitted, the proposition that the fact that the applicant held a bridging visa should have affected the assessment of whether he should be granted a Class 815 entry permit is contrary to s 76 of the Act which, at all relevant times, provided that the holding of a bridging visa "does not … affect" the grant of a visa of another class. Furthermore, the Tribunal's task is to make the correct and preferable decision at the time that it makes its decision, exercising all of the powers and discretions conferred upon the original decision maker: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286. In any event, as the Minister submitted, to require the Tribunal to take account of the grant of bridging visas despite the capacity to refuse them on character grounds, in determining whether the applicant is of good character for the purposes of granting him a visa of a different class, would effectively subvert the independent nature of merits review.
5.3 Does Ground 2 have any merit (misconstruction of the test in s 501)? 32 Ground 2 of the draft judicial review application alleges that the Tribunal's finding at [309] (which relates to the relevance of "enduring moral character") is illogical. However, in written submissions, and at the hearing, Mr Prince's analysis of Ground 2 focussed on the question of whether the Tribunal had misconstrued the test in s 501 of the Act as it read in 1996. While this may have been a generous view of the reach of Ground 2, counsel for the Minister did not take issue with this approach, either in written submissions or at hearing. Mr Prince confirmed at hearing that he did not advance any submissions in support of the illogicality argument. As that aspect of the ground was not pressed at hearing and the ground was otherwise unsupported by submissions from the applicant, it is not necessary to consider it. The Court has therefore taken the arguments advanced at the hearing in support of Ground 2 as having encompassed that ground. 33 The amicus submitted that the Tribunal's error in this regard is apparent from the approach which it adopted at [309] of its reasons for decision as follows: … [R]eferences to good character, in s 501 as was in force, must be understood as references to a person's enduring moral character. We noted hypothetically, that if the Tribunal was to find that 20 years ago Mr Gao had not been of good character but had since undergone genuine change such that, as at the time of this review he had become [a] person of (enduring) good moral character, a decision based on his former character could not be sustained. 34 The amicus submits that the test as expressed and applied above distorts the statutory test in s 501 to a two-step process: first, was the applicant of bad character in 1996; and secondly, has the applicant established that he has demonstrated enduring good moral character since that time? The amicus also submitted that the Tribunal's approach was to ascertain whether the delegate had erred in finding that the applicant was not a good character in 1996 and, if there was no error in 1996, to impose the onus on the applicant to demonstrate a reversal of that conclusion as to his character on an enduring basis. Contrary to the Tribunal's alleged approach, the amicus submitted that s 501(2)(a) and (b) as at the relevant time required the Tribunal to determine in 2017 simply whether it "is satisfied that the person is not of good character", emphasising the use of the present tense. Further, the amicus submitted that: There is a practical consequence to the Tribunal's erroneous statement of the test in s 501 in respect of time. By fixating on the events which had been dealt with and described by the delegate in the 1996 decision, the Tribunal did not give proper weight or due consideration to the fact that the events about which it was concerned had happened many years ago; and had not taken into account the absence of any such evidence over a very significant period of time leading to the date on which the Tribunal's decision was to be made. … it was the Tribunal's task to focus on Mr Guo's character as it is now, not 20 years ago when he was a much younger man. 35 Notwithstanding the assistance afforded by the amicus' careful submissions, proposed Ground 2 takes [309] of the Tribunal's 2017 reasons out of context and lacks any reasonable prospects of success. First, the Tribunal correctly found at [77] that: The Tribunal does not conduct its review on the basis of the facts as they stood when the decision was made. Rather the Tribunal's duty is to make the correct and preferable decision in light of the circumstances applying at the time of review (Shi v Migration Agents Registration Authority (2008) 235 CLR 286…). (emphasis added) 36 Secondly, in the passage at [309], the Tribunal referred to earlier hypothetical positions raised by it which expressly acknowledged that the applicant's character may have changed for better or worse since the 1996 decision (Tribunal's 2017 reasons at [78] and [82]). As the Minister submitted, those hypothetical positions did not carry with them any implication that the Tribunal was required to, or would, make a finding as to the applicant's character as at the time of the primary decision in 1996. Furthermore, in the following paragraph, the Tribunal found that the applicant did not seek to make out a case that his character had undergone genuine change over the last 20 years, but rather that he had acquired an undeserved reputation as a result of which he was unfairly treated with suspicion by law enforcement (Tribunal's 2017 reasons at [310]). The Tribunal rejected that premise based upon the evidence before it, including evidence post-dating the 1996 decision, which it had carefully analysed in detailed reasons.
Guo
Minister for Immigration and Border Protection
(2007) 162 FCR 299
(1984) 3 FCR 344
(2015) 242 FCR 585
(2013) 214 FCR 68
(2008) 235 CLR 286
[2008] HCA 31
The application for an extension of time within which to seek judicial review of the decision by the Administrative Appeals Tribunal given on 10 May 2017 is dismissed. The applicant is to pay the costs of the first respondent as agreed or assessed.