Ryan v Minister for Immigration, Citizenship and Multicultural Affairs

1. The proceeding be dismissed.
2. The applicant pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KATZMANN J: 1 Aaron Ryan is a British national whose visa was cancelled in accordance with s 501(3A) of the Migration Act 1958 (Cth) (the Act). Mr Ryan tried in vain to persuade first a delegate of the Minister and then the Administrative Appeals Tribunal to revoke the cancellation decision. He contends that, in affirming the delegate's decision, the Tribunal fell into jurisdictional error. But he failed to file his originating application within the time prescribed by s 477A of the Act and asks the Court to extend the period. For the reasons set out below, the application for an extension of time should be refused. 2 Section 477A relevantly provides: (1) An application to the Federal Court for a remedy to be granted in exercise of the court's original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. (2) The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order. 3 The power given to the Court by s 477A(2) is discretionary in that it involves "an evaluative judgment as to a state of satisfaction": Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 96 ALJR 819; 403 ALR 604 at [10] (Kiefel CJ, Gageler, Keane and Gleeson JJ). In Katoa at [12] their Honours explained the scope and operation of s 477A(2): On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice. (Emphasis added, footnotes omitted.) 4 The Tribunal's decision is dated 21 September 2022. That means that any application for a remedy in this Court should have been filed by late October 2022. This proceeding was filed on 30 January 2023, which was 131 days after the decision was made. 5 Mr Ryan, himself, provided no explanation for the delay. Instead, the explanation came from his solicitor, Marta Mamarot. Much of Ms Mamarot's affidavit consisted of submissions, rather than evidence. Be that as it may, the substance of the explanation (as developed in counsel's submissions) was as follows. First, the reasons for judgment were not published until 7 December, despite multiple indications that they would be available earlier, and that in the absence of the reasons counsel could not be "secured" to "firmly provide advice" on prospects of success. Second, the issues raised by the Tribunal decision and Mr Ryan's judicial review application are "very complex". Third, Mr Ryan is in immigration detention, impecunious and suffers from "mental health conditions transpired from his childhood trauma". "In those circumstances" it was difficult to find counsel willing to act for him on a conditional fee arrangement before Christmas and it was only after "about mid-January" that counsel had been "secured" to "firmly provide advice". Fourth, the delay is relatively short and the Minister is not prejudiced. Fifth, the matter has "real prospects of success". 6 Presumably the purpose of the second point was to indicate that Ms Mamarot did not feel that she was capable of providing advice on prospects although she did not say so. No evidence was adduced to support the submission that Mr Ryan was impecunious. The "mental health conditions" were not defined and I was not taken to anything in the Application Book to support the submission that he suffers from such conditions. I note, however, that the Tribunal referred in its reasons to evidence that Mr Ryan suffered "long-term mental and other health issues (including alcohol and drug addiction)". I also note that a clinical psychologist reported in 2021 that he suffers from "drug dependency" (methamphetamines), "a depressive illness, elevated anxiety and a learning disorder" and that the evidence indicated that his "mental health issues" apparently stemmed from childhood abuse. 7 The delay is not short, either absolutely or relatively. But a good deal of it is readily explained by the failure of the Tribunal to provide reasons until the 35 day period had long passed. There is no provision in the Federal Court Rules 2011 for the filing of a holding appeal and no lawyer could be expected to advise on the prospects of a successful appeal without knowing the decision-maker's reasons. As for the subsequent delay, despite the unsatisfactory state of the evidence I am prepared to assume that Mr Ryan lacked the means to pay for counsel and I accept Ms Mamarot's unchallenged evidence that it was difficult to find counsel willing to act on a conditional fee basis in the lead-up to Christmas. I also accept her submission that the Minister has not been prejudiced by the delay. Indeed, the Minister conceded as much. But I do not accept that the matter has real prospects of success. To the contrary, for the reasons that follow I am not satisfied that the application has any merit at all. Consequently, I am not satisfied that it is necessary in the interests of justice to grant Mr Ryan's application for an extension of time. Indeed, the interests of justice point in the opposite direction. 8 Section 501(3A) of the Act imposes an obligation on the Minister to cancel a person's visa in certain circumstances. Those circumstances relevantly include if the Minister is satisfied that the person does not pass the character test because the person has been sentenced to a term of imprisonment of 12 months or more and is serving a sentence of imprisonment on a full-time basis for an offence against an Australian law. 9 The Minister's delegate was satisfied that Mr Ryan did not pass the character test because he had been sentenced to imprisonment for three years and nine months in 2011 on two charges of recklessly causing grievous bodily harm. At the time his visa was cancelled, Mr Ryan was serving a full-time sentence of imprisonment for firearms offences. 10 The Minister invited Mr Ryan to make representations about revocation of the cancellation decision, as required by s 501CA(3) of the Act. Section 501CA(4) provides that: 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. 11 It was never in issue that Mr Ryan did not pass the character test. Thus the Minister (and the Tribunal on review) could only revoke the cancellation decision if he (or it) was satisfied there was another reason to do so. 12 The Tribunal was bound by s 499(2A) of the Act to comply with Direction no. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction no. 90). Direction no. 90 requires decision-makers to take into account the primary and other considerations detailed within it. The primary considerations are set out in para 8. Relevantly, they include (1) the protection of the Australian community from criminal or other serious conduct and also (2) whether the conduct engaged in constituted family violence. The application Mr Ryan wishes to bring concerns the Tribunal's approach to the family violence consideration. 13 Paragraph 8.1 deals with the first primary consideration, para 8.2, the second. 14 Paragraph 8.1 reads: Protection of the Australian community (1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. (2) Decision-makers should also give consideration to: a) the nature and seriousness of the non-citizen's conduct to date; and b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct. 15 Paragraph 8.1.1(1)(a) requires decision-makers, "[i]n considering the nature and seriousness of the non-citizen's criminal offending and other conduct to date" to have regard to the fact that certain types of crimes or conduct are viewed very seriously by the Australian Government and the Australian community including, relevantly: (iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed[.] 16 "Family violence" is defined in para 4(1): family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include: a) an assault; or b) a sexual assault or other sexually abusive behaviour; or c) stalking; or d) repeated derogatory taunts; or e) intentionally damaging or destroying property; or f) intentionally causing death or injury to an animal; or g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or i) preventing the family member from making or keeping connections with his or her family, friends or culture; or j) unlawfully depriving the family member, or any member of the family member's family, or his or her liberty. 17 Paragraph 8.2 of Direction no. 90 relevantly reads as follows: 8.2 Family violence committed by the non-citizen (1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below). (2) This consideration is relevant in circumstances where: a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness. 18 The Tribunal made two observations about the material in evidence (at [91]). The first was that the material indicated that on 27 May 2015 Mr Ryan was charged with assault occasioning actual bodily harm to his then de facto partner, and issued with an apprehended violence order (AVO), but acquitted of the charge after a hearing. The second was that on 5 June 2017 Mr Ryan was charged with seven offences, and issued with another AVO, in relation to the violent assault of his then de facto partner. According to the vivid description in the police narratives, Mr Ryan attacked her with a meat cleaver, resulting in multiple injuries including a laceration to her head requiring three staples, multiple other lacerations and abrasions, and a possible corneal laceration. He also reportedly threatened to kill his son. The Tribunal noted that Mr Ryan was committed to stand trial on four of the seven charges but that the charges were later "dropped" by the Director of Public Prosecutions. The records show that the Director "decided not to proceed". All this information appeared in documents produced to the Tribunal by the NSW Commissioner of Police in response to a summons issued at the request of the Minister's lawyers. Notably, the narrative relating to the events of 5 June 2017 included the observations of the police when they entered the house where the events were said to have taken place. The victim was described as "hysterical and crying with blood over her left hand and running down the left side shoulder and neck and chest". Police observed "blood to be coming from a gash to the left side of the victims [sic] head". 19 The Tribunal said at [94]-[96]: 94 The [Minister] contends that the police records in relation to the 2015 and 2017 charges are information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence. While [Mr Ryan] concedes that police records are "independent sources", he submits that "we don't know what facts went before the court, and we don't know how much of that is actually accurate or inaccurate". 95 To my mind, it would be inappropriate for me to rely on evidence contrary to the essential conviction (or non-conviction) by a court in relation to offending, including domestic violence offending. Accordingly, I am not prepared to look behind the 2015 charge, even though there is obviously an "independent source" for the charge, given that [Mr Ryan] was found not guilty of the same. To do otherwise would amount to jurisdictional error on my part. I therefore give neutral weight to the 2015 charge for the purposes of this Primary Consideration 2. 96 The position is different in relation to the 2017 charges. As already indicated, paragraph 8.2(2)(b) does not require that there to have been a criminal conviction for a finding of family violence conduct where there is an "independent source" for the same (as there is in this case). While the 2017 charges were dropped, that does not mean that I am prevented from considering an "independent source" for [Mr Ryan]'s relevant conduct under this Primary Consideration. 20 The reference to "non-conviction" at [95] of the Tribunal's reasons I take to be a reference to the matters short of a conviction mentioned in para 8.2(2)(a) of Direction no. 90. 21 Based on the material in the police records relating to the 2017 charges, the Tribunal concluded that Mr Ryan had been involved in perpetrating family violence, that his conduct must be characterised as "serious", and that primary consideration (2) weighed "very heavily against revocation" (at [99]-[100]). 22 The draft originating application for review filed on Mr Ryan's behalf contained three grounds. Grounds 1 and 3 were abandoned during oral argument. Ground 2 was in these terms: The Tribunal misconstrued the meaning of Clause 8.2 of Direction No. 90. 1. Sub-clause 8.2 (2) sets out the conditions for evidence to become relevant to the 'family violence' consideration. It has two parts: a) and b): a. 2 a) is for criminal procedure and contemplates charges or offences, and convictions. b. 2 b) is for information or evidence, other than criminal procedure and its topics. 2. The police records show that the Applicant was charged with 7 offences and committed to stand trial on 4. The police records are evidence of criminal procedure. 3. The Tribunal should have considered the police records under 2 a). 4. Instead, by considering the police records under 2 b) the Tribunal misconstrued clause 8.2 and erred, such error being jurisdictional. 23 The error was said to arise from the Tribunal's reasons at [94]-[96]. 24 In substance, Mr Ryan contends that the Tribunal erred by having regard to the four charges upon which he was committed for trial because the charges were subsequently dropped. He claims that, notwithstanding the broad terms in which it is expressed, the family violence consideration was not relevant here because para (2)(b) is concerned only with uncharged conduct; in circumstances where a charge has been laid, para (2)(a) applies and if the charges are not proceeded with, for whatever reason, there is no room for the operation of para (2)(b). As his counsel, Mr Berg, put it, para (2)(a) "contemplates the entirety of the criminal justice process so that … once a matter has entered the criminal justice process then, in terms of family violence, it only becomes relevant if that has led to a conviction, guilt or otherwise proof involving family violence". 25 Mr Berg cited no authority to support this construction of para 8.2(2) and informed the Court that there was authority against it, which he submitted was wrong, but not plainly wrong, and in any event distinguishable. 26 The authority in question is Aghbolagh v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2023] FCA 43 per Burley J, a judgment published on 3 February 2023, four days after this proceeding was commenced but three months before Mr Ryan's submissions were filed. Oddly enough, the judgment was not mentioned in those submissions or in the written submissions in reply although Mr Berg was the author of them and had been counsel for Mr Aghbolagh. Nor was it included in the joint bundle of authorities filed by the parties. 27 In Aghbolagh, it was said that the Tribunal erred by having regard to police narratives, which were not evidence but "mere allegations", and thereby misconstrued the meaning of "independent and authoritative information" in para 8.2(2)(b) of Direction no. 90. The argument was summarised by Burley J, relevantly, at [28]-[29]: 28 The applicant submits that para 8.2(2) allows family violence to be relevant when either of two conditions are satisfied. Paragraph 8.2(2)(a) is concerned with an offence or charges and a condition is set that the offence or charge must be proved. He submits that when charges have been heard and dismissed in Court, those charges cannot be relevant. He further submits that it would be an unlikely interpretation that the Direction intends that an earlier stage of the criminal process (meaning, as I understand it, the police narratives) could prejudice the applicant. 29 The applicant submits that para 8.2(2)(b) is concerned with the perpetration of family violence and the first condition it sets is that the information is from an "independent and authoritative source". He submits that information that is from an earlier stage in criminal proceedings cannot satisfy para 8.2(2)(b) because (2)(a) "covers the field for matters which are within criminal proceedings". Police narratives are material of the kind that must fall within (a) to be relevant. 28 Burley J considered that this construction of para 8.2(2)(b) was "incorrect". His Honour explained at [35]- [38]: 35 When read as a whole, para 8.2(2) identifies the circumstances where the receipt by a decision maker of information in relation to the perpetration of family violence is to be considered relevant. In para 8.2(2)(a) this will arise upon a non-citizen being convicted of an offence, found guilty of an offence or having charges proven (however they are described) that "involve" family violence. The definition of "family violence" is broad and extends beyond physical assault to include derogatory taunts, destruction of property and includes acts that fall within the ambit of what might broadly be termed acts of coercive control: see definition at [8] above. Consideration of "family violence" is also relevant to a decision maker where, under para 8.2(2)(b), there is information or evidence from independent and authoritative sources indicating that the non-citizen is or has been involved in the perpetration of family violence. Sub-paragraph (b) is self-evidently of broader scope than (a). At its widest, it identifies that the decision maker must take into account as a consideration not only evidence, but information indicating the non-citizen's perpetration of family violence. This is relevantly subject to the limitation that it is from "independent and authoritative sources". … 37 I do not accept the applicant's contention that where information (or evidence) may be said to arise from a step along the way in a process of criminal investigation, as he characterises the police narratives, that such information may not separately be considered for the purposes of para 8.2(2)(b) not least because, as a matter of construction, the words "and/or" placed between (a) and (b) expressly require that each be given separate consideration. Nothing in the language of (b) suggests that information or evidence potentially relevant to procuring a conviction of family violence within (a) should be excluded. Nor does it appear, having regard to the "serious concerns" of the Government set out in para 8.2(1), that the purpose of para 8.2(2)(b) is intended to be so confined. 29 His Honour observed (at [36]) that the question of what may be considered to be an independent and authoritative source is left to the decision-maker to evaluate having regard to the nature and circumstances of the particular case. His Honour also observed (at [39]) that police narratives are capable of amounting to "information from an independent and authoritative source". 30 In Agbhbolah, as in this case, apprehended violence orders had been made but charges were not pursued. If there is a relevant distinction between the two matters, it is a distinction without a difference. Burley J's construction of para 8.2(2)(b), with which I respectfully agree, is fatal to the success of the sole remaining ground in Mr Ryan's draft originating application. There is no good reason to construe para 8.2(2) in the way urged upon the Court. Both the text and the context require that the words be given their ordinary meaning. 31 Mr Berg submitted that his argument about the construction of para 8.2(2)(b) was supported by cl 4(b) of section 1 of Annex A to Direction no. 90. He contended that it provides "guidance … to defer to the Court's judgment … rather than forming an independent view of the Applicant's culpability". I reject the submission. 32 Clause 4(b) states: Discretionary visa cancellation or refusal … (4) In considering a person with unresolved criminal matters, decision-makers should note: … b) a person who does not already fail the character test, and is the subject of criminal charges in Australia, which have not yet been finalised before the relevant court, would not generally be considered under section 501 until the charges have been finally determined[.] 33 This provision offers no support for the argument. Quite apart from the fact that cl 4(b) relates to discretionary visa cancellation or refusal, not mandatory cancellation or revocation of a mandatory cancellation decision, Annex A (as is abundantly clear from its heading) is concerned with the operation of the character test. Section 1 is entitled: "Overview of the character test". It has nothing to do whether a visa cancellation decision should be revoked for "another reason", that is to say, a reason other than that the visa holder does not pass the character test. Accordingly, the. matters covered by Annex A s1 have no bearing on the operation of para 8.2(2) of Direction no. 90. In particular, nothing in cl 4 of Annex A s1 informs the construction of para 8.2(2) of Direction no. 90 or supports the argument that the Tribunal erred by taking into account the information or evidence in the police records which related to the four charges that the Director chose not to pursue. 34 In his written submissions, Mr Berg also contended that the Tribunal's "process of consideration" in [95]-[96] "shows illogicality" and that "there is no evident and intelligible basis" for the Tribunal taking a different position in relation to the 2015 and 2017 charges. "Illogicality" was not raised in the draft originating application and the point was not advanced in oral argument. In any event, on the proper construction of Direction no. 90 there is nothing illogical about the Tribunal's reasoning. 35 It follows that the draft originating application has no reasonable prospects of success. In the circumstances it would be futile to extend the time to enable Mr Ryan to file it. It is certainly not necessary to do so in the interests of justice. The application for an extension of time must be refused. The proceeding should therefore be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.