NHBK v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2023-10-04|Before: Lee J

The application for an extension of time be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

A INTRODUCTION AND FACTUAL MATRIX 1 This is an application for an extension of time within which to seek judicial review of a decision of the second respondent (Tribunal) to affirm a decision of a delegate of the first respondent (Minister) not to revoke an earlier decision by the Minister to cancel the applicant's special category (temporary) visa (visa). 2 At the time of filing her application for an extension of time, the applicant was unrepresented. She has since obtained legal representation and now, if an extension of time is granted, intends to rely on an amended originating application for judicial review settled by her counsel, Mr Mohammed (amended application). 3 The applicant is a citizen of New Zealand. She first entered Australia in 1994. 4 Between 2005 and 2020, the applicant was convicted of several offences, including assaulting a police officer, possessing prohibited drugs, dishonestly obtaining a financial advantage, obtaining stolen goods, and driving without a licence. In June 2021, she was sentenced to 21 months' imprisonment on account of convictions for assault occasioning actual bodily harm in the company of others, larceny and possessing stolen goods. 5 On 22 June 2021, at a time when the applicant was serving her sentence in gaol, a delegate of the Minister cancelled her visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act). This provision provides the Minister "must" cancel a person's visa if that person has a "substantial criminal record" and so does not pass the "character test" (s 501(6)(a)). This provision was amply satisfied - a person is deemed to have a "substantial criminal record" pursuant to s 501(7)(c) if they have been sentenced to a term of imprisonment of 12 months or more. 6 If the Minister decides to cancel a person's visa pursuant to s 501(3A), the Minister is relevantly required to notify the person of the decision (s 501CA(3)(a)) and invite them to make representations as to why the decision should be revoked (s 501CA(3)(b)). Section 501CA(4) provides the Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 7 Following an invalid notification attempt, on 22 December 2021, the applicant was, it is contended, notified of the decision to cancel her visa, and invited to make representations about revocation of that decision. The applicant made representations to the Minister in January 2022. 8 In December 2022, a delegate of the Minister determined not to revoke the cancellation decision (decision) because the delegate was not satisfied the applicant passed the character test (s 501CA(4)(b)(i)), nor that there was "another reason" (s 501CA(4)(b)(ii)) why the cancellation decision should be revoked. 9 The applicant was notified of the decision, as required by s 501G(1) of the Migration Act, by email (notice). 10 The applicant sought review of the decision before the Tribunal. The Tribunal determined to affirm the decision on 28 February 2023, providing reasons on 9 March. The reasons refer at length to Direction No. 90 (Direction 90), given by the Minister under s 499 of the Migration Act and with which the Tribunal was required to comply. Direction 90 sets out both "primary" and "other" considerations to be taken into account by the Tribunal "where relevant to the decision", and principles as to how considerations should be weighed. 11 In the end, the Tribunal found that the primary consideration of the protection of the Australian community and expectations of the Australian community weighed "heavily" and "firmly" against revocation of the decision to cancel the visa (at [58], [90]). The Tribunal also concluded the primary consideration of the best interests of minor children should be given "minimal weight" in favour of revocation (at [85]); the other consideration of the extent of the impediments that the applicant may face if removed from Australia weighed "lightly" in favour of revocation (at [101], [119(b)]); and the other consideration of the applicant's links to the Australian community weighed "strongly" in favour of revocation (at [114]). 12 Pursuant to s 477A(1) of the Migration Act, the applicant was required to commence this proceeding within 35 days of the date on which the Tribunal made its decision (that is, on or by 4 April 2023). She did not do so until 23 May 2023. It is common ground the applicant is, therefore, 49 days out of time.

B THE APPLICATION FOR AN EXTENSION OF TIME 13 The principles applicable to an application for an extension of time within which to seek judicial review of a migration decision are well-established. The Court has a broad discretion to extend time under s 477A(2) of the Migration Act if it is "necessary in the administration of justice" to do so. 14 Consideration will ordinarily be given to the length of, and reasons for, the delay; any prejudice to the party or parties responding to the application; and the merits of the putative application for judicial review: BQQ15 v Minister for Home Affairs [2019] FCAFC 218 (at [33] per Yates, Wheelahan and O'Bryan JJ). 15 In the present case, the applicant's delay in filing is, on balance, explicable. The applicant is in detention and is a person of limited education and resources. I am satisfied she did not understand the legal remedies available to her until a friend assisted her in seeking to obtain legal representation (to no avail at that time) and, eventually, filing an application. Further, although the Tribunal made its decision on 28 February, it did not render written reasons until 9 March. 16 While these circumstances, taken in isolation, might be said to be "unexceptional in that they involve matters (including lack of legal representation) that are shared by many litigants in this Court in the migration jurisdiction" (see BQQ15 v Minister (at [38] per Yates, Wheelahan and O'Bryan JJ)), I am satisfied that taken together, they adequately explain the delay. 17 Moreover, there is no significant prejudice to the respondent by the grant of an extension of time, but there would be very substantial consequences for the applicant if time were not to be extended. 18 As such, both parties accepted the question of whether to grant an extension of time turns on whether the applicant's case for judicial review is of sufficient merit to justify an extension. There is no constraint on the extent to which this Court may have regard to the merits of the putative application for judicial review; it need not confine itself to an impressionistic assessment of merit: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 (at 825 [18] per Kiefel CJ, Gageler, Keane and Gleeson JJ; 835 [62] per Gordon, Edelman and Steward JJ). In the present case, given the determinative importance of the underlying merits and the attitude of the parties, I heard full argument on the proposed application for judicial review.

C PROPOSED GROUNDS OF REVIEW 19 By her amended application, the applicant advances the following four grounds of review: (1) the notice was invalidly given and, therefore, neither the Minister nor the Tribunal had power to make a decision under s 501CA(4) of the Migration Act or review that decision respectively (Proposed Ground One); (2) "on the date of the cancellation of the visa … the sentence relied upon by the Minister was not operational due to an appeal of that sentence having been lodged, therefore, the Minister, at the time of the decision … relied upon an irrelevant consideration". Additionally, the Tribunal "failed to recognise this error" (Proposed Ground Two); (3) the Minister "failed to take into account the fact that the sentence had been appealed to the District Court thereby impacting the operability and potentially impacting the validity of the sentence" and the Tribunal "failed to recognise this error … in the review of the decision" (Proposed Ground Three); and (4) the Tribunal's decision "is illogical and/or legally unreasonable due to the circumstances in which it was made and their failure to take into account relevant considerations" (Proposed Ground Four). 20 As can be seen, the proposed grounds of review are partially directed to the delegate's decision. That is not the decision which the applicant asks the Court to review. As such, these aspects of the amended application are misdirected but Mr Mohammed, during the course of his helpful and cogent oral submissions, directed attention to contentions of jurisdictional error by the Tribunal.

D PROPOSED GROUND ONE 21 The applicant's case as to Proposed Ground One has two limbs: first, the notice was "served invalidly" because it was emailed to the applicant rather than provided to her in person, contrary to s 494B of the Migration Act and reg 5.02 of the Migration Regulations 1994 (Cth) (Regulations); and secondly, as a result, neither the delegate nor the Tribunal had power to make a decision under s 501CA(4) of the Migration Act or review that decision respectively. 22 The first limb was the focus of the parties' oral and written submissions. 23 The applicant submitted notice had not been given as required by reg 5.02, which relevantly provides, "a document to be served on a person in immigration detention may be served by giving it to the person himself or herself" (emphasis added). It was said that "giving" requires the Minister to hand a notice to a person. Accordingly, as the notice was provided to the applicant by email, it was not validly given. 24 Mr Mohammed candidly acknowledged this argument was inconsistent with the obiter reasoning of Bromwich J in Kassem v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 451 (at [23]-[30]), that "giving" contemplates an act of delivery that is not confined to handing over in person; what matters is that it is given, not the means by which it is given. Further, Mr Mohammed sought to distinguish the present case from Kassem on the basis that the notice in that case was transmitted to Mr Kassem's solicitor by email, while Mr Kassem was in immigration detention, whereas in this case, the notice was sent to the applicant's personal email address while she was in immigration detention. It was also said there is no evidence the applicant had access to her email while in detention. 25 The Minister submitted the applicant's position is untenable on the basis of the operative reasoning of Bromwich J in Kassem (at [16]-[18]). By operation of ss 494A(1)(b) and 494B(1)(b), the Minister was entitled to utilise the method of service referred to in ss 494B(5)(b) and 494B(5)(d) (that is, to provide the documents to the applicant by email to the last email address provided to the Minister for the purpose of receiving documents). 26 In response, Mr Mohammed mounted a challenge to the ratio decidendi of Kassem, but sensibly accepted I would have to be satisfied Kassem was "plainly" or "clearly" wrong in order to depart from it: Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1 (at 15 [296] per Allsop P, Beazley and Basten JJA). 27 Although not mentioned by the parties, it came to my attention following the hearing that Kassem has been appealed to the Full Court (Kassem v Minister for Immigration, Citizenship and Multicultural Affairs (NSD 535 of 2023)). I gave some consideration to deferring the delivery of this judgment until determination of that appeal, but the applicant, through her counsel, had already expressed a preference for this application to be determined with alacrity and, in any event, Bromwich J's reasoning in Kassem (at [16]-[18]) is not dispositive in the circumstances of this case. 28 To the extent relevant, there can be no suggestion the applicant was not notified. In her affidavit affirmed 17 September 2023, the applicant gave evidence (at [8]), that "[o]n 6 December 2021, some four days after I was taken into immigration detention, I received an email from the email address nccc@homeaffairs.gov.au to my email address." Subsequently, the applicant then sought review of the delegate's decision by making an application to the Tribunal on 9 December 2022, three days after the notice was provided by email, and within the nine-day period prescribed by s 500(6B) of the Migration Act. An attack on the Tribunal's jurisdiction to conduct a review cannot be maintained in circumstances where the applicant was able to and did commence a review which resulted in the Tribunal's decision: Lee v Minister for Home Affairs [2019] FCA 1669 (at [42] per Abraham J). 29 For completeness, I note consistently with Kassem (at [16]-[18]) (which I do not consider to be "plainly wrong"), the Minister utilised the method of service referred to in ss 494B(5)(b) and 494B(5)(d) of the Migration Act. Hence, notice was "given" in accordance with the Migration Act. 30 Given the pendency of the appeal in Kassem, I do not propose to express a view as to the proper construction of reg 5.02. 31 Turning to the second argument, even if the notice was not given in accordance with s 494B or reg 5.02, this, without more, has no effect on the validity of the decision of the delegate (and, by relevant extension, the Tribunal). 32 Section 501G(1) of the Migration Act requires the Minister to give a person a written notice that sets out the decision under s 501CA; specifies the provision under which it was made and sets out its effect; sets out the reasons for the decision; and indicates the decision can be reviewed by the Tribunal (as well as the time within which the decision can be reviewed, who may apply for review and where an application for review can be made). Section 501G(3) requires the written notice to "be given in the prescribed manner". In the circumstances of this case, that subsection directs attention to reg 5.02. However, s 501G(4) provides that "[a] failure to comply with this section in relation to a decision does not affect the validity of the decision". In other words, a failure to give written notice in the prescribed manner does not affect the validity of the delegate's decision under s 501CA(4). It follows that the Tribunal's jurisdiction is also unaffected. 33 For completeness, it is well to address a point which was not raised in written nor oral submissions but appears in particular (o) to Proposed Ground One. There is an inconsistency between the first page of the notice, which states it was "delivered by email", and the statement on the second page that "as this letter was given to you by hand, you are taken to be notified of the decision when this letter was handed to you". This slip might understandably have caused confusion on the applicant's part. But, in the light of s 501G(4), it does not invalidate the notice nor the decisions made by the delegate or the Tribunal. 34 For the foregoing reasons, Proposed Ground One is not reasonably arguable.

E PROPOSED GROUND TWO 35 The applicant submits the Tribunal fell into jurisdictional error by failing to identify an "error" in the delegate's decision, namely the delegate's reliance on an "irrelevant consideration", being the misapprehension that the applicant had been "sentenced" and so had a "substantial criminal record" for the purposes of s 501(7) of the Migration Act. It is said that where a person appeals a sentence, they have not been sentenced until the appeal is allowed, dismissed, or withdrawn. In the alternative, at the time of the delegate's decision, the applicant's sentence was "stayed" or "in a state of suspension" owing to her appeal in the District Court. 36 These arguments do not withstand analysis. 37 As a starting point, there can be no jurisdictional error in the decision of the Tribunal by reason of a "failure to recognise" an "error" of the original decision maker. The Tribunal's task was not to review the Minister's initial decision under s 501(3A) (see s 500(4A)(c)). It was to review the delegate's subsequent decision under s 501CA(4) not to revoke the decision to cancel the applicant's visa and decide afresh whether she passed the character test (s 501CA(4)(b)(i)) or whether there was another reason why the decision to cancel her visa should be revoked (s 501CA(4)(b)(ii)). As such, this proposed ground of review does not allege any jurisdictional error in the Tribunal's decision by reason of a failure to perform that task. 38 Moreover, there are other difficulties with the substance of the argument. 39 First, as to the existence of a sentence at the time of the delegate's decision, there is no support in the text of s 501 of the Migration Act for the limitation which the applicant seeks to read into the provision. A person has a substantial criminal record if, relevantly, the person "has been sentenced to a term of imprisonment of 12 months or more" (s 501(7)(c)). The word "sentence", as it is used in s 501, is defined in s 501(12) as "includ[ing] any form of determination of the punishment for an offence". 40 By the time of the delegate's decision, the Local Court of New South Wales had made a determination of the punishment for the offences committed by the applicant. That determination was that she be sentenced to a term of imprisonment of 21 months. 41 Secondly, the fact the applicant had a right to appeal her conviction and sentence pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) undermines her core contention because that section operates only where a person "has been convicted or sentenced by the Local Court" (emphasis added) (s 11(1)). The applicant met that description when her visa was cancelled. Neither s 20 of that CAR Act (which sets out the dispositive powers on appeal conferred on the District Court of New South Wales) nor s 62 of the Bail Act 2013 (NSW) (Bail Act) (which lists the preconditions to a bail application being heard by a court) operates so that a person who has been sentenced to a term of imprisonment is taken not to have been so sentenced or "effectively sentenced" (particular (h)). 42 Thirdly, as to the suggestion the sentence was "stayed" and "in a suspended state" (particular (f)) or "effectively not operational" (particular (j)), s 63 of the CAR Act sets out the circumstances in which the execution of a sentence is stayed pending the determination of appeal. Pursuant to s 63(2)(c), if a person is in custody at the time they appeal their sentence, the execution of their sentence is stayed when "the appellant is entitled to be released from custody on bail under section 14 of the Bail Act 2013 or bail is dispensed with under that Act". 43 A review of the chronology demonstrates that at no time did s 63(2)(c) apply to the applicant as she was never entitled to be at liberty in accordance with s 14 of the Bail Act. She was arrested on 3 August 2020; applied for bail on 24 September 2020; was refused bail on 29 September 2020; and was in custody as at 10 June 2021 (when the sentence was handed down) and on 11 June 2021 (when she filed her appeal in the District Court). The applicant is correct to point out that s 501(3A)(b) of the Migration Act provides the Minister only has power to make a cancellation decision where the "person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory". But this was the position of the applicant at the time of the decision. 44 Proposed Ground Two has no merit.

F PROPOSED GROUND THREE 45 Mr Mohammed accepted that Proposed Ground Three cannot be maintained independently of Proposed Ground Two. As I have rejected Proposed Ground Two, Proposed Ground Three must also be rejected.

G PROPOSED GROUND FOUR 46 The applicant's final proposed ground of review challenges the Tribunal's decision on the basis that it is "illogical and/or legally unreasonable due to the circumstances in which it was made and their failure to take into account relevant considerations". 47 Four arguments are advanced in support of Proposed Ground Four, which I will address in turn. 48 First, it is said the Tribunal "concede[d] that [it] did not allow sufficient time to consider all relevant material". This submission arises from the statement of the Tribunal (at [126]) that: Finally, I note that the Tribunal was required by the statutory framework to decide this matter in a rush. The hearing concluded on 27 February 2023, the day before the deadline imposed by the 84-day rule in subsection 500(6L) of the Migration Act. This did not allow much time for reflection and deliberation after the conclusion of the hearing. I have no hesitation in stating that the compressed time for decision making makes for sub-optimal decision making. 49 It is understandable why a statement of this kind might trouble a person in the applicant's position. The criticism of the terms of s 500(6L) of the Migration Act is broadly framed and risks implying the decision itself involved "sub-optimal" decision making. But it is important to place this statement in its proper context. It appears after the operative reasoning as to the correctness of the delegate's decision, in a section at the end of the Tribunal's decision entitled, "The Relevance of New Direction 99". It is evidently intended to be a closing, general remark. 50 In any event, the notion expressed that the demands of the statutory framework "did not allow much time for reflection and deliberation after the conclusion of the hearing" cannot be equated with a concession the Tribunal "did not allow sufficient time to consider all relevant material". It is apparent on reading the Tribunal's decision that it weighed relevant considerations and concluded the delegate had made "the correct and preferable administrative decision under the Direction" (at [121]). 51 Secondly, the applicant submits the Tribunal's decision was illogical and legally unreasonable because the Tribunal admitted its decision was "sub-optimal". Again, this argument proceeds on a misreading of [126] of the Tribunal's decision. The Tribunal observed that the 84-day timeframe prescribed by s 500(6L) "makes for sub-optimal decision-making", not that its decision fell short of what was required. 52 Thirdly, it is said the Tribunal failed to take into account significant relevant considerations such as the applicant's journey towards rehabilitation. This contention cannot be accepted. The Tribunal had before it scarcely any evidence as to the applicant's prospects of rehabilitation. The evidence was limited to remarks that the magistrate in the Local Court was "guarded about [the applicant's] prospects of rehabilitation and unable to find she is unlikely to reoffend". This was considered by the Tribunal in assessing the likelihood that she would reoffend (at [55]). 53 Fourthly, the Tribunal's decision is said to be illogical and legally unreasonable because the Tribunal stated it would have made a different decision: (1) if it had more time to consider the application; and (2) if Direction No. 99 (Direction 99), which came into force in the days following the Tribunal's decision, was applicable. 54 As to (1), at no point did the Tribunal suggest a different decision would have been made if s 500(6L) of the Migration Act had not required the Tribunal to determine the matter expeditiously. 55 Furthermore, in relation to (2), the Tribunal's comments as to Direction 99 in closing do not reveal jurisdictional error in the Tribunal's decision. The Senior Member's statement went no further than that, had the relevant policy been different, the outcome may have been different, stating (at [124]): "I am satisfied that the decision made on 28 February 2023 was the correct administrative decision to make under Direction 90, but I am also satisfied that this case may well have been decided differently a few days later under Direction 99, which is now in force". This was a reflection on the difference in policy reflected in Direction 90 and Direction 99, not on the correctness or otherwise of the Tribunal's reasoning. 56 In the end, the Tribunal's task was to act on a correct understanding of the law applicable to the decision to be made: Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 (at 30 [57] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). This it did. It also sought to account for the peculiarities occasioned by the introduction of Direction 99, stating (at [125]): Direction 99 reflects a significant policy change by the Australian government in relation to non-citizens whose formative years were spent in this country. In my view, given this change, it is appropriate to recommend to the Respondent that consideration be given to the grant of a discretionary visa to the Applicant, despite the decision of the Tribunal affirming the reviewable decision. (Emphasis added). 57 Proposed Ground Four is without merit.

H CONCLUSION AND ORDERS 58 It follows from the above that there are insufficient merits to justify an extension of time, and the application should be dismissed with costs. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.

Migration Act 1958(Cth)ss 477A(1), 477A(2), 494B, 499, 500(6B), 500(6L), 501, 501(3A), 501(3A)(b), 501(4A)(c), 501(6)(a), 501(7), 501(7)(c), 501(12), 501CA, 501CA(3)(a), 501CA(3)(b), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1), 501G(4)

Bail Act 2013(NSW)ss 14, 62

Crimes (Appeal and Review) Act 2001(NSW)ss 11, 11(1), 20, 63, 63(2)(c)

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