McRoy v Minister for Home Affairs

1. An extension of time be granted to the applicant for the filing of an originating application up to and including 28 May 2021.
2. The originating application as so filed be heard and determined instanta.
3. The application be dismissed.
4. The applicant pay the respondent's costs of and incidental to the application, to be fixed by a Registrar if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 Mr James Daniel McRoy (Mr McRoy) was born in New Zealand on 10 May 1986. He is thus a New Zealand citizen by birth. When he was one year old, Mr McRoy migrated to Australia with his parents. Unremarkably, that was a lawful migration. His residence here until recently has been permitted by a Class TY Subclass 444 Special Category (Temporary) Visa issued pursuant to the Migration Act 1958 (Cth) (Migration Act). As his possession of a visa indicates, at no stage following his migration to Australia in 1987 has Mr McRoy applied for, much less been granted, Australian citizenship. He is thus, in the eyes of Australian law, an alien: see Love v Commonwealth (2020) 94 ALJR 198. 2 That is so notwithstanding the length of his residence in Australia. On any view, the length of his Australian residence and his living, working and forming relationships and fathering a child in Australia would suggest that long ago he ceased to be an "immigrant", as that term is understood for constitutional purposes in terms of Commonwealth legislative competence with respect to immigration: see as to this the recent discussion of authority by the Full Court in Minister for Home Affairs v Lee [2021] FCAFC 89. But the result of amendments now long ago made to the Migration Act changed the focus of that Act in terms of the power to deport from those who did not possess entry permits and who were immigrants to those who are aliens and without a visa. 3 On 7 December 2020, as a result of a decision made personally by the then Minister for Home Affairs, the Honourable Peter Dutton MP, Mr McRoy's visa was cancelled pursuant to the power granted to the Minister under s 501(2) of the Migration Act. As an alien present in Australia without a visa, he became amenable to deportation. Indeed, the Minister became subject to a duty to deport him as soon as reasonably practical: see s 198 of the Migration Act. 4 In April of this year, in circumstances of quite some urgency, I made orders the effect of which is to restrain until the hearing and determination of the present application the deportation of Mr McRoy from Australia to New Zealand: see McRoy v Minister for Home Affairs [2021] FCA 537 and McRoy v Minister for Home Affairs (No 2) [2021] FCA 538. 5 Mr McRoy's application is for an extension of time within which to seek judicial review of the Minister's decision and, if an extension be granted, for that decision to be quashed on the basis of jurisdictional error. An extension of time is necessary in that no originating application for judicial review was filed within the 35 day time limit prescribed by the Migration Act. Rather, the extension of time application was not filed until 27 April 2021. 6 An explanation for the delay is offered by Mr McRoy's present solicitor, Mr Burrows, in an affidavit filed on 27 April 2021 and read without objection today. The Minister does not concede that there is a case for an extension of time. As I mentioned in an earlier interlocutory judgment, the impact of a combination of being taken into immigration detention, itself a lawful act by the Minister, in conjunction with relative, apparent impecuniosity, and uncertainties introduced into life's ordinary discourse by the persisting present pandemic, are not to be diminished. 7 Further, the grounds of review as proposed, which I canvass below, are, at least in respect of the procedural fairness denial allegation, sufficiently arguable in themselves to warrant the granting of an extension of time. The case was never one for disposal summarily. The views to which I have come are views which were necessarily informed by a trial and the opportunity that offered for a detailed scrutiny, assisted by relevant submissions, of the process which led to the Minister's decision and of the Minister's reasons for that decision. 8 Taking into account the explanation offered in conjunction with the proposed grounds of review, I consider the case one which warrants the granting of an extension of time up to and including the date upon which an originating application for review of the Minister's decision came to be filed on 28 May 2021. The real question in this case is not whether or not to grant an extension, but whether or not the grounds pleaded in the originating application as amended are such as to warrant the quashing of the Minister's decision? 9 Those grounds as pleaded in the amended originating application are as follows: 1. That the Applicant was denied procedural fairness, in that: a. The decision of the Respondent was made, in part, upon material that was not capable of informing the decision of the Respondent and to which the Applicant could not have reasonably been expected to respond; Particulars: The Respondent's decision was based upon materials provided to the Applicant in the originating Notice of Intention to Consider Cancellation of Visa, dated 23 October 2019 and subsequently as 'Annexure F' to the Statement of Reasons for refusal of the Respondent's decision to revoke the cancellation of the Applicant's visa dated 07 December 2020, concerning the "Mongrel Mob" and its (the Mongrel Mob's) past or alleged criminal conduct, which; a) The Respondent failed to provide any particularisation to the Applicant that would have allowed the Applicant to know how the material was relevant to the Respondent's decision to revoke the cancellation of the Applicant's visa, or enable the Applicant to provide a meaningful response addressing the materials intended use; b) The material was of a quality and kind that could not enable the Applicant to determine its intended use in order to meaningfully respond, in that; a. The material did not relate to the Applicant or any person known to the Applicant; and b. The material was comprised entirely of printed online media publications, containing hearsay, inflammatory language, unproven allegations, allegations from alternate state and international jurisdictions, and allegations that pre and post-dated the Applicant's association with the Mongrel Mob; and c. The relevant of the material was not capable of being inferred by the Applicant in the way that it is ultimately used by the Respondent. c) The material was not capable of assisting the Respondent in informing its decision, in that; a. The material was irrelevant to the purposes of which it was used; b. Had no correlation to the decision before the Respondent; and c. Was fundamentally unreliable in nature; d) Given the adverse conclusions drawn from the material by the Respondent, and the abstract nature of the material and its intended use, the failure of the Respondent to particularise the way in which the material was intended to be used, constituted a clear and unremedied disadvantage to the Applicant and a denial of procedural fairness. 2. The Respondent's reliance upon the material and the adverse conclusions drawn by the Respondent, against the Applicant, in considering that material as part of its decision resulted in jurisdictional error, in that; a. The discretionary decision vested in the Respondent miscarried and was not exercised according to law, in that: i. The reliance upon that material and/or the adverse conclusions drawn from the material were unreasonable in a legal sense; and ii. The decision and reasoning used by the Respondent in reliance upon that material, insofar as it was capable of informing the Respondent's decision on relevant statutory considerations was illogicality and/or irrational; Particulars: The Respondent's use of the materials, attached to the Notice of Intention to Cancel Visa dated 23 October 2019 and subsequently as 'Annexure F' to the Statement of Reasons for refusal of the Respondent's decision to revoke the cancellation of the Applicant's visa dated 07 December 2020, concerning the "Mongrel Mob" and it (The Mongrel Mob's) past or alleged criminal conduct; a) Assumed the accuracy and reliability of the source materials, without a reasonable foundation or logic for doing so; b) Imparted a relevance upon that material to its consideration of the Applicant's character that was unreasonable in the legal sense and illogical; c) Applied selectively, information contained within the material, to draw adverse conclusions against the Applicant's character in a way that was unreasonable, in the legal sense; d) Used the material to draw adverse conclusions against the Applicant that were unsupported by the material other than by inferential 'guilt by association'; and in circumstances where such adverse conclusions were not available on the face of the material and therefore unreasonable in the legal sense and/or irrational/illogical. 3. That the Respondent fell into jurisdictional error in failing to give proper consideration to matters relevant to the exercise of its discretion, that was unreasonable in a legal sense, by; a. In assessing the question of "risk" to the Australian community based upon material before the Respondent that could not reasonably inform its assessment of any risk posed by the Applicant, and drew conclusions that were both; adverse to the Applicant; and reasoned through a process that was both unreasonable in the legal sense and/or illogical; or (if the material is considered capable of informing the decision) i. Failed to conduct a proper intellectual assessment of the materials by failing to properly consider or provide reasons as to why equally available inferences that were favourable to the Applicant were not considered, or disregarded entirely. 10 It is fair to say of those grounds that, as developed in oral submissions, two broad subjects of alleged jurisdictional error emerged: (a) an alleged denial of procedural fairness; and (b) that the decision in terms of its outcome was, in all of the circumstances, unreasonable. 11 The latter ground of review included as a separate, although not unrelated, allegation that there was an illogicality or irrationality in the Minister's reasoning to the conclusion that he should cancel Mr McRoy's visa. I shall now consider each of these grounds in turn.