Pitcher v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The application be dismissed.
2. The applicant pay the first respondent's costs of and incidental to the application, to be assessed 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 Reagen Lee Pitcher (Mr Pitcher) came to Australia from New Zealand with his parents on 8 August 1997. He was then three years old. He and his parents were New Zealand citizens. Mr Pitcher remains a New Zealand citizen. After his arrival in 1997, Mr Pitcher remained in Australia. He is now 26 years of age. 2 One might think, uninformed by authority, having regard to an association of almost a quarter of a century with Australia and his being schooled, and lived, here all that time, that he had become assimilated into Australia and not amenable for that reason to deportation. That, though, is not the position in law, and in fairness to his solicitor, Mr McComber, it must also be said that that is not a basis upon which he seeks to challenge the decision made administratively, a sequel to which, unless quashed, will be his deportation. There being no native title interest, Mr Pitcher, by virtue of his New Zealand citizenship and his absence of Australian citizenship, is an alien and, for the purposes of the Migration Act 1958 (Cth) (the Act), a non-citizen. 3 Mr Pitcher's criminal history in Australia commenced in March 2013 when he was 19 years old upon his being convicted for an offence committed in January 2013. The nature of his offending conduct and the related sentences imposed over the years since then have seen him twice become the subject of mandatory cancellation of the visa which forms the basis of his lawful residence in Australia. On each occasion, the decision to cancel has been a sequel to the application in the circumstances of s 501 of the Act. 4 On an earlier occasion in 2017, a delegate of the predecessor in office to the present first respondent made a decision to revoke that cancellation. The reasons for that decision are not apparent in the material before the Court. There is nothing sinister in that, in the sense that there was no obligation under the Act to furnish reasons for such a decision. That does not, of course, mean that reasons might not voluntarily have been given, only that there is nothing to indicate that they were and no obligation in law to furnish them. However that may be, Mr Pitcher, having had the benefit of a benign decision, came thereafter, and whilst still the subject of a suspended sentence in respect of earlier offending conduct, to reoffend. 5 That reoffending and the sentences imposed were, as I have mentioned, again such as to lawfully engage the cancellation power found in s 501 of the Act. On this occasion, however, a delegate of the Minister administering the Act, decided not to revoke the cancellation. As was his right, Mr Pitcher then sought the review of that decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal is the other respondent to the present application. Quite appropriately, the Tribunal's position is that of making a submitting appearance, so the only active party respondent is the Minister. 6 On 3 March 2020, for reasons given in writing that day, the Tribunal decided to affirm the Minister's delegate's decision not to revoke the cancellation of Mr Pitcher's visa. Having regard to s 477A(1) of the Act, the time within which an application to this Court for the judicial review of the Tribunal's decision ought to have been filed was 7 April 2020. An application was not filed within that time. 7 That is not to say that Mr Pitcher did not actively seek to challenge by judicial review the Tribunal's decision within that time. His affidavit evidence, which is not challenged by the Minister, is that he sought on a number of occasions prior to 7 April 2020 via his then legal advisers to have a judicial review application filed. It was only after the ordinary time limit had expired that Mr Pitcher became aware that no application had been filed. The reason for that seems to lie in a failure of communication between Mr Pitcher's former legal advisers and him in relation to a need, before any work to the end of filing an application was undertaken, to place those lawyers in funds. 8 The evidence also discloses that upon becoming aware that an application had not been filed, Mr Pitcher moved with what one can only describe, given his circumstances of detention, considerable dispatch to engage fresh legal advisers and to cause an application for an extension of time to be filed. Such an application was filed on 28 April 2020. It was accompanied by the affidavit to which I have referred, together with, as the rules required, the draft of an originating application for judicial review. 9 So the nature of the present application is for an extension of time within which to file an originating application for the judicial review of the Tribunal's decision. In respect of applications for extension of time, it is always relevant to consider whether there is an acceptable explanation for the delay, the length of the delay, whether there is any prejudice to a respondent, and whether the proposed application enjoys sufficient prospects of success to warrant the granting of an extension. The latter consideration in no way requires an applicant to demonstrate that he, she or it must succeed, only that there is a case which is sufficiently arguable to warrant an extension. 10 The considerations which I have mentioned, whilst separate, are not unrelated, in the sense that, even where an explanation for delay is not terribly compelling, if it is manifest that there is a very particular likelihood of succeeding in demonstrating jurisdictional error, the interests of justice might well dictate that an extension be granted nonetheless, and the reverse can also apply. The mere fact that there is an acceptable explanation for delay does not in itself mean that an extension must be granted. In the circumstances of the present case, the Minister quite fairly, with respect, having regard to Mr Pitcher's affidavit evidence, has not made any issue of whether there is an acceptable explanation for delay. 11 It is not always an answer in relation to delay for an applicant to lay blame at the foot of legal advisers but in this case, given Mr Pitcher's circumstances of detention and his obvious active interest in pursuing a challenge, coupled with his lack of legal training or any sophisticated education, it is hard to see how he could reasonably have done anything more than he did. It is obvious too from his affidavit that he enjoys the support of his parents in relation to a challenge. So I have no reservation at all in relation to the subject of whether there is an acceptable explanation for delay. 12 Quite properly, each of the parties focused their attention on whether or not the proposed application would enjoy sufficient prospects of success to warrant the granting of an extension. As to that, the grounds of the proposed application might be summarised in this way: (1) the Tribunal failed to appreciate the legal relevance of the previous revocation decision dated 12 January 2017 and, in particular, the requirement that the Tribunal's decision not be inconsistent with that earlier decision, being a privative clause decision within the meaning of s 474(2) of the Act; and (2) the Tribunal failed to take into account the effect of non-revocation on the applicant's immediate family members, a consideration the Tribunal was obliged to consider in exercising its jurisdiction. 13 As to each of these grounds, Mr Pitcher and his wider family should be assured that everything which might possibly be said in favour of those grounds was advanced on his behalf by Mr McComber. 14 As to the first of the proposed grounds, an observation made by the Full Court in Commonwealth of Australia v Snell (2019) 269 FCR 18 at [55] is apt: … [T]he conclusiveness of any administrative decision will be affected by the statutory scheme pursuant to which it is made … 15 That statement was made by reference to an earlier judgment of the Court, Godwin v Repatriation Commission (2008) 168 FCR 471, at [38], but there is much authority beyond that to be found on the subject of the finality of an administrative decision. In Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273, the House of Lords had occasion to examine the extent to which an administrator might, on the same material, depart from a finding made by an earlier administrator. In the circumstances of that case, which materially included the legislative regime concerned, the later administrator was found not lawfully to be able to reach a different conclusion on the same material to the earlier administrator. Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 is a judgment of this Court, which unless read carefully might be thought to stand for a different conclusion to that reached in the House of Lords, but the statutory regime there allowed decisions to be made from time to time as occasions required, and the Gummow J, at 218, found that occasion might be found in a change in policy. 16 It was put on behalf of Mr Pitcher that the decision made by the Tribunal in this case was made pursuant to the same statutory power as had earlier been exercised on that earlier occasion in Mr Pitcher's favour in relation to revocation of cancellation. It is true that the decision in each case was made under s 501CA but what was radically different were the underlying circumstances. As Davies J observed in Jebb v Repatriation Commission (1988) 80 ALR 329, administrative decision-making is a continuum. That description has many applications. One, though, is that whilst the Tribunal sits in place of the primary decision-maker, it does not do so in a vacuum, when it comes to exercise its merits review jurisdiction. 17 Part of the continuum in relation to the Tribunal's exercise of its jurisdiction was the earlier administrative decision made to revoke the cancellation. The Tribunal's reasons disclose that the Tribunal member was well aware of that. That decision formed part of the background facts against which the Tribunal came to exercise its review jurisdiction. I can accept, as was put on behalf of Mr Pitcher, that the Tribunal could not contradict an earlier revocation decision but that is not the nature of the jurisdiction here being exercised. 18 Where the facts are different, as they are here by effluxion of time, there is no inconsistency between an earlier decision to revoke cancellation and a later decision not to revoke cancellation. I can readily see how there may be an arguable case in relation to findings by an earlier ministerial decision-maker on the same material as is before a later decision-maker. At the very least, there may be an expectation of consistency in administrative decision-making or it may be that it is unreasonable to depart from an earlier finding of fact, but those are questions for another day. 19 The particular burden in relation to the first proposed ground of review is that the facts were different. There had been further offending conduct. That conduct, as well as the later development of family or other ties with Australia, all had to be considered in the context of the Tribunal's exercising its review jurisdiction. The Tribunal was in no way bound by the earlier decision to revoke cancellation. However one approaches ground 1, my firm view is that it just does not enjoy sufficient prospects of success to warrant the granting of an extension. 20 As to the second proposed ground, there is no dispute as between the Minister and Mr Pitcher that the ministerial direction made under s 499 of the Act was a relevant consideration for the Tribunal. "Relevant" in the sense that it was one of those considerations which had to be taken into account by the Tribunal in the exercise of its jurisdiction. The difference between the parties was whether in detail that particular direction had indeed been taken into account by the Tribunal. As was correctly submitted on behalf of the Minister, Mr Pitcher would bear the onus of proving an absence of taking into account the ministerial direction on a judicial review application. 21 The particular aspect of the direction said not to have been taken into account was the impact or effect on particular Australian resident family members if Mr Pitcher were removed from Australia. 22 It is a difficult case indeed for Mr Pitcher to make out. One starts with the fundamental proposition flowing from Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) that the reasons of an administrator are not to be read narrowly and with an eye for error. It is singularly important that the familiarity of encounter with the observations made in Wu Shan Liang not diminish their force. It is necessary that the judicial branch exercise a principled restraint in relation to the reading of reasons given in the executive branch for the making of an administrative decision. 23 Two paragraphs of the Tribunal's reasons in particular in my view, are fatal to the second of the proposed grounds of review when they are read in the context of the reasons as a whole. Those are [114] and [121]. If one reads the reasons piecemeal, one might say that more could have been put into [121], but that more is already to be found in the last dot point in [114]. Further, it is apparent from [121] of the Tribunal's reasons that the very particular angst voiced in letters given by family members and others in relation to any deportation to New Zealand of Mr Pitcher was accepted by the Tribunal and informed the Tribunal's conclusion that the nature of his "family and social links with persons in the Australian community warrant the allocation of a moderate level of weight in favour of revocation …". 24 There is, of course, a risk in highly prescriptive ministerial directions not of creating consistency in administrative decision-making but, rather, bedevilling, by detail and all too human omission of detail, administrative decision-making. However that may be, when I read these reasons as a whole, the conclusion which I have reached is that Mr Pitcher would not enjoy sufficient prospects of success in demonstrating that a relevant consideration in terms of the detail of the ministerial direction was not taken into account. 25 If one steps back from this case a little and reflects on the broad factual position exposed, what is revealed is a hard case at an individual and familial level but one which is hardly unreasonable in an administrative law sense. Mr Pitcher engaged in a course of serious offending conduct on an earlier occasion which rendered him liable to mandatory cancellation. He had the benefit of a benign exercise of a discretion under s 501CA in terms of revocation of that cancellation. That benign exercise of discretion was coupled with a warning in terms of the prospect of cancellation should he engage in conduct which enlivened again s 501 of the Act. 26 It might well be said, and it was, on his behalf, quite appropriately by Mr McComber, that his later offending conduct, objectively, was less serious than the former offending conduct, but it was nonetheless conduct which engaged mandatory cancellation. Further, it revealed both to the primary decision-maker delegate and on review to the Tribunal a particular pattern of behaviour and risk. The Tribunal, taking into account the ministerial direction, balanced that particular revelation with undoubted impact on family and made a value judgment. 27 It is particularly important that judicial review of decisions so made not descend into a re-evaluation on the merits. The Tribunal was not bound by the earlier decision, even though it was final and conclusive in terms of s 474 of the Act, in any way other than to acknowledge that there had been an earlier revocation decision. It was faced with different facts and in relation to those different facts, took into account, in my view, the relevant consideration of the ministerial direction and made a value judgment. There the matter must rest. 28 For these reasons, the application for an extension of time is dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.