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[2019] FCAFC 219
Federal Court of Australia (Full Court)
2019-12-05
Wheelahan J, Allsop CJ, Wheelahan JJ
Original judgment source is linked above.
ALLSOP CJ: 1 I invite Justice Wheelahan to deliver the first judgment.
WHEELAHAN J: 2 The applicant is a 48 year old Fijian man who first arrived in Australia in 1990 as a 19 year-old stowaway. On 14 January 2019 the Administrative Appeals Tribunal affirmed a decision of a delegate of the Minister for Home Affairs to refuse the applicant's combined application for a Partner (Temporary) (Class UK) and a Partner (Residence) (Class BA) visa. The applicant has a criminal record spanning the period 1996 to 2017 that includes offences of assault, of using offensive weapons, property offences, and breaches of apprehended violence orders. The main issues before the Tribunal were whether the applicant passed the character test under s 501 of the Migration Act 1958 (Cth), and whether pursuant to s 501(1) of the Act the applicant's application for a visa should be refused on the ground that he did not pass the character test. The Tribunal decided that the applicant did not pass the character test, and that his visa application should be refused. 3 The applicant then sought judicial review of the delegate's decision and the Tribunal's decision pursuant to the original jurisdiction conferred on the Federal Court of Australia by s 476A(1)(b) and (2) of the Migration Act. The applicant sought orders that the Tribunal's decision be quashed. A judge of this Court heard the application on 26 June 2019 and, after reserving his decision, on 12 July 2019 dismissed the application with costs. The primary judge gave detailed written reasons for his decision which addressed the applicant's grounds of review. 4 The applicant seeks an extension of time within which to file a notice of appeal from the primary judge's decision. The application for an extension of time was filed on 20 August 2019, which was some 11 days outside the 28 day period for appeal prescribed by r 36.03(a) of the Federal Court Rules 2011 (Cth). 5 The applicant stated in an affidavit filed in support of his application for an extension of time that he was unable to file a notice of appeal within the prescribed time as he was in immigration detention and was trying to obtain pro bono advice about how to appeal the decision. The first respondent (the Minister) does not allege any specific prejudice. These features of the application direct attention to whether there is any merit in the proposed appeal. 6 The applicant was unrepresented before the Tribunal, before the primary judge, and is unrepresented before this Court. The applicant has filed a draft notice of appeal which contains one ground - The Federal Court of Australia incorrectly applied the law. 7 On 22 October 2019, a Registrar of the Court ordered the applicant to file and serve a written outline of submissions no later than 10 business days before the hearing date of this application, but the applicant has not done so. 8 Before the Court today the applicant made submissions which addressed the Tribunal's decision. The applicant argued that the Tribunal had failed to give sufficient weight to the interests of his children, had failed to obtain any reports of professionals relating to the welfare of his children, had acted on evidence of members of the family of his former partner who were adverse to him, failed to act on letters of support that were before the Tribunal, and failed to bring to account the length of time he had lived in Australia. All these matters went to the merits of the Tribunal's decision, and do not suggest jurisdictional error, still less any appealable error in the primary judge's decision. None of this is to suggest that there might not be other cases where it might be legally unreasonable for the Minister or the Tribunal to consider the interests and welfare of children in the context of an application for a visa, or the cancellation of a visa, without the assistance of professional reports. 9 Ordinarily, the powers of the Full Court on appeal are enlivened only if some legal, factual, or discretionary error is demonstrated: Allesch v Maunz [2000] HCA 40; 203 CLR 172 at [23] (Gaudron, McHugh, Gummow and Hayne JJ); Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [14] (Gleeson CJ, Gaudron and Hayne JJ); Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [22] (Allsop J, Drummond J and Mansfield J agreeing). The applicant has not identified or advanced any arguable error in the primary judge's detailed reasons for his decision. Nor is any error apparent. I am therefore not persuaded that there would be any utility in extending the time for filing and service of a notice of appeal. I would dismiss the application. 10 Finally, the applicant sought an adjournment at the outset of the hearing in order to allow him to obtain legal advice. That adjournment was refused. My reason for refusing that request for an adjournment is that since filing the application on 20 August 2019 the applicant has had sufficient time to seek legal advice. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan.
STEWARD J: 11 I respectfully agree with Wheelahan J's reasons for judgment. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.
ALLSOP CJ: 12 In the matter of Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3], I reflected upon the importance of decisions under s 501 of the Migration Act 1958 (Cth). They are important because of their tendency to affect deeply the lives of ordinary people. I reflected upon the need in those circumstances for the Minister or delegate or, in cases such as this, the Administrative Appeals Tribunal, to engage with the reality of issues before him or her or it. Having read the careful reasons of the Tribunal, that process of executive review of an executive decision has been, in my view, lawfully and properly undertaken. 13 Whether or not members of this Court would make the same decision is irrelevant. This Court is and the primary judge was tasked with assessing the lawfulness of the decision of the Tribunal. In this circumstance and in the circumstances of the applicant, this involves and involved an analysis of the reasons and result of the exercise of power and the question whether, pursuant to the principles in cases such as Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 in the High Court and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 in this Court, the decision was legally unreasonable. It was not the role of the primary judge to evaluate the material, nor is it the role of this Court. 14 The question of whether there was a need or appropriateness for psychological or psychiatric material to assess the evidence of the applicant's children was a matter for evaluation by the Tribunal if that matter had been put to it. It was Mr Sadruga's fundamental submission in addition to the other matters put, as indicated by Wheelahan J. His children are 16, 15 and 9 years old and they put letters and material before the Tribunal. Like Wheelahan J, I am not prepared to conclude that this decision could not be made reasonably and lawfully without professional assistance. 15 I also agree with Wheelahan J that there may well be cases where either the Minister or the delegate or the Tribunal could not reasonably and lawfully make the decision without professional assistance. I am not prepared to conclude that this is one of those cases. 16 In the circumstances, I am unable to identify any error in the learned primary judge's reasons and in the reasons of the Tribunal. 17 In addition to the reasons Wheelahan J has given for the refusal of the application for an adjournment, having examined the Tribunal decision and the learned primary judge's reasons, I do not think that there is likely to be any utility in the adjournment and I otherwise respectfully agree with the reasons of Wheelahan J. 18 For those reasons, the orders of the Court are:
Sadruga
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs