Pohahau v Minister for Home Affairs

Background 5 Mr Pohahau arrived in Australia in 1986. He was just under one year old at the time. He was granted a Class TY Subclass 444 Special Category (Temporary) visa. He has resided in Australia since that time. 6 Mr Pohahau has an extensive criminal record. It is unnecessary to consider it in any detail. His first recorded conviction was in 2003. He has been charged and convicted of various criminal offences virtually every year since that time until his last conviction in October 2017. He could fairly be considered to be a recidivist. Though the offences he has committed could generally be considered to be relatively minor offences, he has been sentenced to imprisonment. On 27 April 2017, he was convicted of a variety of offences which resulted in the imposition of a sentence of imprisonment for 12 months to be served by way of an intensive corrections order. On 23 August 2017, the intensive corrections order was cancelled and Mr Pohahau was ordered to serve the balance of the sentence in a custodial institution on a full-time basis.

The mandatory cancellation of Mr Pohahau's visa 7 On 17 October 2017, Mr Pohahau's visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act. The cancellation of his visa was effectively mandatory. That is because, by reason of the sentence imposed on 27 April 2017 and the revocation of the intensive corrections order on 23 August 2017, Mr Pohahau's circumstances fell within the criteria for cancellation in s 501(3A) of the Migration Act. He did not pass the character test in s 501(6) as he had a substantial criminal record as defined in s 501(7)(c) because he had been sentenced to a term of imprisonment of 12 months or more. He therefore satisfied the criterion in s 501(3A)(a)(i) of the Migration Act. He was also, at the time of the decision, serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of a State. He therefore satisfied the criterion in s 501(3A)(b) of the Migration Act.

The decision not to revoke the cancellation 8 The Minister may revoke the mandatory cancellation of a visa under s 501(3A) of the Migration Act. 9 Under the terms of s 501CA(3) of the Migration Act, the Minister was required to give Mr Pohahau particulars of the "relevant information", which was defined in s 501CA(2) as including information that "would be the reason, or a part of the reason, for making the original decision" and invite Mr Pohahau to make representations about the revocation of the original decision. The Minister complied with his obligations under s 501CA(3) of the Migration Act and Mr Pohahau made representations to the Minister concerning the revocation of the original cancellation decision. 10 Subsection 501CA(4) of the Migration Act provides that the Minister may revoke the original decision to cancel a visa under s 501(3A) if the person makes representations in accordance with the invitation and the Minister is satisfied that the person either passes the character test (as defined by s 501 of the Migration Act) or there is another reason why the original cancellation decision should be revoked. 11 On 20 November 2018, a delegate of the Minister decided not to revoke the cancellation of Mr Pohahau's visa.

The Tribunal's review of the decision refusing to revoke the cancellation 12 Mr Pohahau subsequently applied to the Tribunal for a review of the decision not to revoke the mandatory cancellation of his visa. He was able to do so by virtue of s 500(1)(ba) of the Migration Act. 13 On 8 February 2019, the Tribunal affirmed the delegate's decision not to revoke the cancellation of Mr Pohahau's visa. 14 It is unnecessary to rehearse the Tribunal's reasons for affirming the decision. The following points should be emphasised because they bear on grounds or arguments that Mr Pohahau advanced in support of his application for an extension of time. 15 First, the Tribunal correctly identified that the main issue before it was whether it was satisfied that there was another reason why the original decision to cancel Mr Pohahau's visa should be revoked. That was the main issue because Mr Pohahau plainly did not satisfy the character test in s 501(6) of the Migration Act. Mr Pohahau did not contend otherwise. 16 Second, the Tribunal had regard to and applied Direction No. 65 - Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA, which is a written direction made by the Minister pursuant to s 499 of the Migration Act. 17 Third, one of the primary considerations that the Tribunal was required to consider pursuant to Direction No. 65 was the protection of the Australian community, from criminal activity and other serious conduct. The Tribunal found, in relation to that consideration, that some of the offences committed by Mr Pohahau were serious, that his offending had been frequent and repeated, that it was unable to accept that Mr Pohahau had rehabilitated and that there was therefore an unacceptable risk that he would continue to offend in the future: Decision and Reasons for Decision at [44]-[52]. 18 Fourth, another primary consideration that the Tribunal was required to have regard to was the best interests of minor children in Australia affected by the cancellation decision. The Tribunal found, in relation to that consideration, that it would be in the best interests of Mr Pohahau's daughter and the child of his current partner for Mr Pohahau to remain in Australia: Reasons at [51]-[53]. The Tribunal accepted that this was a consideration which weighed in favour of revoking the cancellation decision: Reasons at [53]. 19 Fifth, another primary consideration that the Tribunal was required to have regard to was the expectations of the Australian community. The Tribunal found, in relation to that consideration, that in light of the seriousness of Mr Pohahau's offending and the unacceptable risk that it would continue, the expectations of the Australian community would be that Mr Pohahau's visa cancellation not be revoked: Reasons at [54]. 20 Sixth, the Tribunal considered whether a decision not to revoke the decision to cancel Mr Pohahau's visa would raise any issue concerning international non-refoulement obligations. The Tribunal found, in that context, that it was not satisfied that Mr Pohahau would suffer significant harm if removed from Australia: Reasons at [56]. 21 Seventh, the Tribunal considered the extent of any impediments that Mr Pohahau might face if removed from Australia to his home country, including in respect of his health and social and medical support. The Tribunal accepted that Mr Pohahau had some medical issues, including a panic disorder, anxiety and depression and that he was on a methadone program. The Tribunal found, in that context, that "the comparable health system in New Zealand compared with Australia … would lessen the concerns about the claimed impediments to [Mr Pohahau's] removal": Reasons at [60]. 22 Eighth, the Tribunal concluded that the considerations which weighed in favour of revoking the cancellation decision, including the consideration of the best interests of the two minor children, did not outweigh the considerations which weighed heavily in favour of not revoking the cancellation decision, including the protection of the Australian community and the expectations of the Australian community: Reasons at [63].

The Court's limited jurisdiction 23 This Court has original jurisdiction to grant relief in relation to decisions made by the Tribunal pursuant to s 500: s 476A(1)(b) of the Migration Act. That jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution. Relief can only be granted when jurisdictional error has been established. It is well established that the Court's jurisdiction in relation to decisions by the Minister to cancel a person's visa is strictly supervisory; the question is whether the Minister's exercise of power was lawful. It is not an appellate procedure enabling either a general review of the decision, or a substitution of the decision with one which the Court thinks the Minister should have made: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [23]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66]. The same principles no doubt apply to decisions concerning the cancellation of visas made by the Tribunal on review. 24 An application for relief under s 476A of the Migration Act must be made within 35 days of the date of the relevant migration decision, though the Court may extend that period if an application for an extension is made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order: s 477A(2) of the Migration Act.

Mr Pohahau's extension of time application 25 Mr Pohahau sought to engage the Court's jurisdiction and challenge the Tribunal's decision to affirm the delegate's decision not to revoke the cancellation of his visa. He did not, however, file any application under s 476A of the Migration Act within the 35-day time limit. Given the date of the Tribunal's decision, Mr Pohahau was required to file any such application on or before 15 March 2019. He filed his application for an extension of time on 8 April 2019. He was accordingly approximately three weeks out of time. 26 Mr Pohahau adduced affidavit evidence in support of his application which sought to explain why he did not file his application within time. His evidence was that "I already handed my federal court papers in on the 1/3/19 at 14.42 but only found out it didn't get received 3 days ago". The affidavit containing this evidence was sworn on 7 April 2019. At that time, Mr Pohahau was in immigration detention. It would appear from the balance of the affidavit that Mr Pohahau claimed that he gave the "papers" to an officer for the purpose of them being sent to the Court by facsimile. He also appeared to suggest that he had a photo on his phone showing the time and date the fax was sent and he also had the "original forms" with the dates on them. He did not, however, tender any further evidence to substantiate those claims. The Minister did not seek to cross-examine Mr Pohahau. 27 Mr Pohahau also relied on a draft originating application and a second affidavit which set out the grounds upon which he wished to challenge the Tribunal's decision. He essentially advanced the following four grounds. 28 First, he contended that he was denied procedural fairness in the Tribunal because he had no legal help, was unprepared and did not understand the procedure. Mr Pohahau did not, however, adduce any evidence in relation to this ground. 29 Second, he claimed that the Tribunal did not take the best interests of his daughter into account. He accepted, in that regard, that in its reasons the Tribunal stated that the best interests of his daughter weighed in favour of revoking the cancellation decision. He claimed, however, that the Tribunal did not actually take that consideration into account. He also appeared to take issue with the Tribunal's finding that his daughter had only recently developed a connection with him. He claimed, in that regard, that the evidence was that his partner's daughter had only recently developed a connection with him. 30 Third, he contended that the Tribunal erred in its consideration of the best interests of the Australian community. He argued, in that regard, that his partner, daughter and partner's daughter were part of the Australian community and that they would have liked his visa not to be cancelled. 31 Fourth, he contended that the Tribunal erred in its consideration of international non-refoulement obligations. He argued, in that regard, that the Tribunal was wrong to conclude that there was no evidence that he would be harmed if removed from Australia because if he was returned to New Zealand, he would not have the right to medicine and would not get the same medical attention in relation to his panic disorder, anxiety, depression and schizophrenia. 32 Mr Pohahau appeared unrepresented at the hearing of his application. He advanced some submissions in support of the four grounds just summarised, though his submissions did not really add much to what had been put in writing. Otherwise, his submissions essentially comprised reasons why he should be permitted to remain in Australia. The matters to which he referred in that regard were all matters that were considered and taken into account by the Tribunal.

Relevant principles 33 Section 477A(2) of the Migration Act provides that the Court may, by order, extend the 35-day period within which an applicant must make an application pursuant to s 476A(1)(b) if an application for that order is made in writing to the Court specifying why the applicant considers it necessary in the interests of the administration of justice to make the order and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order. 34 In considering the latter question, the Court will generally have regard to considerations such as the length of the delay, 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]. 35 It will seldom be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects of success: MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6], [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]. Such a finding should ordinarily only be made where the grounds of the application on their face appear to have little or no prospects of success and there is no need for any detailed argument in respect of the merits. It follows that an assessment of the prospects of success on an extension of time application should not ordinarily travel "beyond an examination of the grounds at what should be a reasonably impressionistic level … into a fuller consideration of the arguments for and against each ground of review": MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62]; Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; see also Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98; ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at [111].

The delay and the explanation for it 36 The Minister submitted that Mr Pohahau had not adduced any evidence to corroborate his claim that he attempted to file, and believed that he had filed, his application within time. The Minister appeared to accept, however, that if substantiated, Mr Pohahau's explanation would constitute a satisfactory explanation for the delay. 37 It may be accepted that Mr Pohahau did not adduce any corroborative evidence of his attempts to file his claim within time, despite hinting at the existence of such evidence in his affidavit. The Minister did not, however, cross-examine Mr Pohahau or otherwise challenge his evidence to the effect that he gave his application to a corrections officer to fax to the Court and believed that it had in fact been filed. His evidence to that effect should accordingly be accepted. 38 There could be little doubt that individuals who are in prison, or in immigration detention, may find it difficult to make appropriate arrangements to file Court documents in accordance with the prescribed time limits. That is particularly so where they are not legally represented. Mr Pohahau's explanation for the delay in filing his application is a reasonable explanation in all the circumstances. 39 There was no suggestion that the Minister was in any way prejudiced by the delay. It follows that the main issue is whether Mr Pohahau's proposed application is at least reasonably arguable or appears, at an impressionistic level, to have at least some prospects of success.

Assessment of the prospects of success of the application 40 The Minister submitted that, even at an impressionistic level, the draft grounds of Mr Pohahau's application do not have sufficient prospects of success to warrant an extension of time. Unfortunately for Mr Pohahau, the Minister's submissions in that regard have merit.

Procedural fairness 41 There is no evidence to support Mr Pohahau's claim that he was denied procedural fairness. There is no basis for concluding other than that he was afforded a fair hearing by the Tribunal and was given a fair opportunity to adduce evidence and present arguments in support of his review application. The mere fact that Mr Pohahau was not legally represented is not capable of supporting a finding of jurisdictional error. The same can be said in respect of the fact, if it be a fact, that he was unprepared. There was, in any event, no evidence that Mr Pohahau was in fact unprepared, or how that any lack of preparedness may have impacted on the fairness of the hearing. The same can be said in relation to Mr Pohahau's assertion that he did not understand the procedure. 42 It follows that this ground of Mr Pohahau's application has no reasonable prospects of success.

The best interests of Mr Pohahau's daughter 43 There could be no doubt that the Tribunal considered the best interests of Mr Pohahau's daughter and the child of his partner. The Tribunal found (Reasons at [53]) that "it would be in the best interests of both children for [Mr Pohahau] to remain in Australia". It is equally clear that the Tribunal weighed that consideration in the balance. It found that it did not "outweigh the considerations which weigh heavily in favour of not revoking the cancellation decision". There is, accordingly, no merit in Mr Pohahau's claim that the Tribunal did not have regard to, or weigh in the balance, the bests interests of his daughter. 44 As for Mr Pohahau's claim that the Tribunal made a factual error (in [52]) in finding that his daughter, as opposed to his partner's child, had only recently developed a connection with him, that factual error, if established, could not in any event support a finding of jurisdictional error on the part of the Tribunal. The Tribunal accepted it was in the best interests of both children for Mr Pohahau to remain in Australia irrespective of whether one or other of them had only recently developed a connection with him. 45 It follows that this ground of Mr Pohahau's application has no reasonable prospects of success.

Expectations of the Australian community 46 The Tribunal plainly took into account the fact that Mr Pohahau's partner, his daughter and his partner's daughter wanted him to remain in Australia. That fact, however, is immaterial and irrelevant when it comes to a consideration of the expectations of the Australian community, even though it can obviously be accepted that Mr Pohahau's partner and daughter are part of the Australian community. The same argument that Mr Pohahau seeks to advance was advanced and rejected in Oluwafemi v Minister v Home Affairs [2018] FCA 1389 at [46]. The expectations of the Australian community, as a consideration relevant to decisions concerning the cancellation of a person's visa, is to be judged having regard to the government's views on that topic as expressed in paragraph 9.3 of Direction 65, not having regard to evidence adduced or claims made by a particular visa holder: cf. Afu v Minister for Home Affairs [2018] FCA 1311 at [85]; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]; FYBR v Minister for Home Affairs [2019] FCA 500 at [42]. 47 It follows that this ground of Mr Pohahau's application has no reasonable prospects of success.

Non-refoulement obligations 48 Mr Pohahau did not identify or advance any evidence about any facts or circumstances which could possibly have engaged Australia's non-refoulement obligations. He did not identify any basis upon which it could be asserted that he had a well-founded fear of persecution if he was returned to New Zealand for reasons of race, religion, nationality, membership of a particular social group or political opinion. Nor did he identify any basis upon which it could be concluded that there was a real risk that he would suffer significant harm if removed to New Zealand. 49 Mr Pohahau did assert before the Tribunal that he had medical issues, including panic disorder, anxiety and depression and that he was on a methadone program. The Tribunal had regard to those claims in addressing whether there were any impediments that Mr Pohahau would face if removed to New Zealand. The Tribunal considered (Reasons at [60]) that the existence of a "comparable health system in New Zealand … would lessen the concerns about the claimed impediments". The Tribunal was permitted to proceed on the basis of its understanding that New Zealand has a health system which was comparable to Australia's health system: McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 at [37]. It is accordingly clear that the Tribunal had regard to Mr Pohahau's claims concerning his medical conditions and weighed them in the balance. 50 It follows that this ground of Mr Pohahau's application has no reasonable prospects of success.

Conclusion in relation to prospects of success 51 Even on an impressionistic level, none of the grounds of Mr Pohahau's proposed application have any discernible merit or any reasonable prospects of success. They are essentially unarguable.

Conclusion and disposition 52 An order extending the time within which Mr Pohahau can file an application for relief pursuant to s 476A of the Migration Act in respect of the Tribunal's decision is not necessary in the interests of the administration of justice. That is because, even on an impressionistic level, the proposed grounds of his application have no merit and no prospects of success. His application for such an order must accordingly 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 Wigney.