Rouxelle v Minister for Immigration and Border Protection

1. The application for an extension of time be dismissed.
2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KENNY J: 1 In early February 2018, the applicant, a New Zealand citizen who had entered Australia on 31 May 2012, filed an application for an extension of time (extension of time application) in this Court to challenge the decision of a delegate of the respondent (delegate) to cancel her Special Category (Class TY) (Subclass 444) visa (applicant's visa) or, possibly, the decision of the Administrative Appeals Tribunal that it did not have jurisdiction to review the delegate's decision. As will be seen, it is unnecessary to determine precisely what the applicant was seeking to do. For the following reasons, the application must be dismissed. 2 On 30 December 2016, the applicant's visa was cancelled by the delegate under s 116(1)(e)(i) of the Migration Act 1958 (Cth), on the ground that the applicant was, or may be, a risk to the safety of the Australian community, in light of the fact that she had been convicted of a number of offences (including unlawful assault, threatening to inflict serious injury and possession of a controlled weapon) and there were a number of pending charges (including for armed robbery, possession of a controlled weapon and contravention of a family violence interim intervention order). 3 As a consequence of the cancellation of the applicant's visa, the applicant became an unlawful non-citizen: see Migration Act, ss 13 and 14. As at 30 December 2016, the applicant was imprisoned in the Dame Phyllis Frost Centre, within the migration-zone. 4 Also on 30 December 2016, the applicant was given a notification of visa cancellation under s 116 of the Migration Act. The notice stated that the applicant was entitled to make an application for merits review of the cancellation decision to the Tribunal and that such an application must be given to the Tribunal within the prescribed time frame, namely, 7 days from the date the applicant received the notice. Because the notice was sent to the applicant by email, she was taken to have received the letter at the end of the day it was transmitted. 5 On 10 January 2017, the applicant applied to the Tribunal for review of the delegate's decision. 6 On 11 January 2017 the applicant was served with a notice under s 254 of the Migration Act advising her that she was to be removed from Australia, and that upon her release from prison she would be taken into immigration detention until her removal. On 10 December 2017, upon release from prison, the applicant was taken into immigration detention as an unlawful non-citizen within the migration zone pursuant to s 189 of the Migration Act. She was subsequently detained in the Maribyrnong Immigration Detention Centre. 7 On 3 April 2017 the Tribunal held that it did not have jurisdiction to review the delegate's decision pursuant to s 347(1) of the Migration Act on the basis that the application for review was not a valid application because the applicant had failed to pay the reduced filing fee within a reasonable period (28 days) of the date she was notified of a determination reducing the filing fee under reg 4.13(4) of the Migration Regulations 1994 (Cth). 8 As already stated, the applicant filed an application for an extension of time in early February 2018. The applicant's proposed originating application, which was annexed to her supporting affidavit, sought an injunction preventing the respondent Minister and his officers or agents from acting on the delegate's decision. In her application, the applicant stated that she was unable to read and write English; did not understand the documents that the respondent Minister's Department had given her whilst in custody; did not have any legal advice or help from the State Welfare Department whilst in the control of the State Department of Corrections; and did not understand the paperwork that was given to her and what the consequences and outcome would be if she failed to seek review within the specified time frame. The applicant further deposed that she did not understand the notice of cancellation that had been given to her on 30 December 2016, because she could not read and write English. She deposed that, in consequence, she was unable to comply with the 7 day time limit for filing an application for review of the delegate's decision in the Tribunal. She deposed that as soon as she was given some legal advice and understood what was required of her to remain in Australia, she took steps to file her extension of time application. 9 On 12 February 2018, Chambers staff notified the applicant that the matter was listed for a case management hearing on 28 March 2018 at 9:30 am by posting a letter addressed to the applicant to the Maribyrnong Detention Centre, being the address for service that she had provided. On the same day, Chambers staff sent a copy of that letter by email to the administration section of the Maribyrnong Detention Centre. Sparke Helmore Lawyers, as the Minister's legal representative, filed a notice of address for service on 15 February 2018. On 16 February 2018, Chambers staff sent an email to the Minister's legal representative, Sparke Helmore Lawyers, which also attached a copy of the letter. The email advised that the letter had been sent to the applicant and that Chambers did not have a contact email address for her. 10 On 20 February 2018, the applicant was given notice of the respondent Minister's intention to remove her from Australia. 11 Between 21 February 2018 and 7 March 2018, the applicant lodged four applications for a protection visa. The applicant was advised by the Department that each application was invalid because: the first and fourth applications were not accompanied by the prescribed fee of $35 required by item 1401(2)(a)(ii) of Schedule 1 to the Migration Regulations; and the second and third applications did not meet the requirement in item 1401(3)(a) of Schedule 1 to the Migration Regulations that the applications be made in the manner specified by the Minister in a legislative instrument under reg 2.07(5). The relevant legislative instrument at the time was Migration (IMMI17/051: Arrangements for Protection, Humanitarian and Refugee Visas) Instrument 2017, which specified that protection visa applications must be either lodged online or posted to the Department. The applicant faxed the second and third applications to the Tribunal. 12 On 25 March 2018, Sparke Helmore Lawyers sent an email to the Federal Court Registry in Victoria advising that the applicant was in Maribyrnong Detention Centre. A Registry staff member subsequently sought to make arrangements for the applicant to appear in person for the case management hearing scheduled for 28 March 2018. That staff member was informed that the applicant was no longer in the Maribyrnong Detention Centre and that the applicant had been removed from Australia on 9 March 2018. Registry staff informed Chambers of these developments. Chambers staff contacted the Minister's legal representatives, Sparke Helmore Lawyers, to seek an explanation. At 10:48 am on 26 March 2018, Sparke Helmore Lawyers sent an email to my associate confirming that the applicant had been removed from Australia and requesting that the case management hearing remain listed for 28 March 2018, to allow the Minister to make submissions concerning the matter. 13 On 27 March 2018, the Minister filed a short affidavit affirmed by Ms Ashleigh Allan, a solicitor at Sparke Helmore Lawyers, attesting to the fact that the applicant had departed Australia on 9 March 2018. 14 At the case management hearing on 28 March 2018, the Court sought an explanation from the respondent Minister as to what had happened. Noting that Ms Allan's affidavit lacked any details as to what had occurred, the Court made an order in the following terms: On or before 4.00 pm on 18 April 2018, the respondent file an affidavit or affidavits, by a person or persons with personal and direct knowledge of the facts, setting out the circumstances surrounding the applicant's removal from Australia on 9 March 2018. If a policy was relevant to the removal of the applicant, that policy should be set out in the affidavit or affidavits. 15 The Court also ordered that the Minister file written submissions as to the disposition of the proceeding. 16 In compliance with those orders, on 18 April 2018, the Minister filed written submissions and an affidavit sworn by Eleanor Kaye Spencer, Senior Border Force Officer; an affidavit affirmed by Jamie William Guy Grant, solicitor at Sparke Helmore Lawyers; and an affidavit affirmed by Helen Lewis, then Acting Assistant Director, National Allocation and Finalisation Team 5, Humanitarian Programme Operations, Department of Home Affairs.