The applicant's application for an extension of time to apply for judicial review of a decision of the second respondent be dismissed.
The applicant pay the first respondent's costs of the proceeding, to be assessed in default of agreement in accordance with the court's Costs Practice Note (GPN-COSTS).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
The applicant, Mr Varley, is a citizen of the United Kingdom. He came to Australia in 1964, then aged three years. He lived here as the holder of various visas, most recently a Class BB Subclass 155 Five Year Resident Return Visa (hereafter, the "Visa") that was issued to him pursuant to the Migration Act 1958 (Cth) (the "Act"). On 12 January 2017, that Visa was mandatorily cancelled under s 501(3A) of the Act (the "Cancellation"), following his conviction in the District Court of Western Australia on various child sex offences, for which he was sentenced to a term of imprisonment.
Mr Varley then made representations under s 501CA of the Act by which he sought to have the Cancellation revoked. A delegate of the first respondent (more accurately, of his predecessor) decided, on 4 December 2018, not to revoke the Cancellation (the "Delegate's Decision"). On 10 December 2018, Mr Varley applied to the second respondent (the "Tribunal") to review the Delegate's Decision. On 1 March 2019, the Tribunal determined that application by affirming the Delegate's Decision (the "Tribunal Decision").
By an application dated 13 September 2023, Mr Varley moves the court now for an order under s 477A of the Act to extend the time within which he might apply for judicial review of the Tribunal Decision. The application is supported by two affidavits affirmed by Mr Varley: one on 1 September 2023, the other on 15 August 2024. The first respondent (the "Minister") opposes the grant of an extension and, to that end, relies upon an affidavit affirmed by his solicitor, Mr Sypott, on 29 August 2024.
The principles that guide the exercise of the court's discretion to grant an extension of time of the kind now sought are well-settled and were not materially disputed. The court may grant an extension if satisfied that it is in the interests of justice to do so. In assessing those interests, the court typically takes account of the explanation given by an applicant as to why he or she did not commence a substantive application within the lime limit prescribed, the prejudice that might attend the grant of an extension, and whether or to what extent the application that is sought to be pressed enjoys some prospect of succeeding. It was to those considerations that the parties' written and oral submissions were directed and, with respect, properly so.
This court has jurisdiction to entertain an application for judicial review of a decision of the Tribunal to affirm a decision not to revoke the mandatory cancellation of a visa: the Act, s 476A(1). Section 477A(1) provides, subject to subsection (2), that such an application must be made within 35 days of the decision in question. In the present case, that deadline was Friday, 5 April 2019. Mr Varley thus requires - and moves for an order that would afford him - an extension of more than 1,600 days. I am conscious - not merely because Mr Varley raised it - that a decision to grant or refuse an extension of time under s 477A(2) of the Act is immune to challenge on appeal: the Act, s 476A(3).
An extension of the magnitude that Mr Varley seeks would, it is fair to say, be exceptional, as he properly conceded. The Minister's preferred adjective is "unprecedented". For the reasons that follow, I am not satisfied that the interests of justice warrant the extension for which Mr Varley moves. His application should and will be dismissed, with the usual order as to costs.
In explaining why that course is to be preferred, I shall address the primary matters upon which the parties' submissions focused: namely, the explanation that has been given for the delay in seeking to challenge the Tribunal Decision and the merits that that challenge would enjoy were an extension granted.
Mr Varley's reasons for not sooner seeking to challenge the Tribunal's decision are set out in his affidavits. In the written submissions advanced on his behalf, they were summarised as follows:
The explanation for the delay…might be summarised as the applicant initially returning to the United Kingdom after his visa was cancelled and accepting that outcome. He then sought to return to Australia, and could not, [following which there was] the interval presented by [the covid-19 pandemic].
Perhaps slightly more detail should be recorded. Following the Tribunal Decision, Mr Varley in fact did commence an application in this court for judicial review under s 476A of the Act. It was ultimately withdrawn after he was voluntarily removed from Australia in or around August 2019. Prior to that removal, Mr Varley was held in immigration detention. He attributes his decision to leave Australia to "…the ongoing impact of prolonged detention on [his] physical and mental health, as well as the strain on [his] family". There is no evidence that particularises those impacts or that strain, at least not beyond the realm of assertion; but nor is there any reason to doubt what is asserted.
In January 2020, Mr Varley made enquiries about a potential return to Australia to visit his sick mother. They did not bear fruit, presumably on account of the Cancellation. Over the course of the covid-19 pandemic (and the lockdowns that it inspired in the United Kingdom), Mr Varley was moved to consider suicide. Ultimately, he sought and received some treatment for the state of his mental health (in particular, for anxiety and panic attacks).
Mr Varley continued to receive treatment for his mental health conditions at least over the latter part of 2021 and into 2022. During that period, his mother passed away. On 25 August 2022, Mr Varley applied for another visa to return to Australia but it was refused on the basis that his previous Visa had been cancelled.
It is apparent that there were also some moves made in 2021 to commence proceedings to challenge the Tribunal Decision. In June 2021, Mr Varley corresponded with a barrister to that end. No proceeding was commenced, although a quote was provided as to how much it would cost to commence one. More than 18 months later (in February 2023), the same barrister wrote to Mr Varley and brought to his attention the possibility that he was "wrongly detained and deported". Still, no application was filed.
In May 2023, Mr Varley's partner - who remained (and remains) in Australia, apparently unable to relocate to the United Kingdom - met with a politician and sought some assistance in getting Mr Varley back to Australia. In May 2023, further legal advice was sought, and Mr Varley was led to understand that "an application had reasonable prospects of success". Still, none was filed. The present application was made on 13 September 2023.
The picture that that evidence paints is not one that offers a compelling explanation for Mr Varley's delay in seeking to challenge the Tribunal Decision. In saying so, I should not wish to understate what have surely been difficult times for him. Perhaps his experiences might, in other circumstances, have warranted a modest extension of time. But what is sought here is extreme. It should not, I think, be entertained on anything short of the clearest and most compelling of explanations. Intending no disrespect to him, what Mr Varley offers presently is not nearly sufficient. The evidence does not, for example, disclose why it was that the present application was not filed until September 2023, some three months after Mr Varley was given to understand that his prospects of challenging the Tribunal Decision were reasonable. Likewise, there is no explanation for why, despite receiving a quote to commence a proceeding in June 2021, no efforts were made to do so for another two years.
In any event, there is a bigger hurdle: the foundation upon which Mr Varley's proposed challenge to the Tribunal Decision sits is inherently unconvincing. To understand why, it is necessary to explain part of the reasoning that underpins the Tribunal Decision. Before embarking down that path, however, something should be said about the merits assessment that the court should make for the purposes of determining whether an extension should be granted.
As a general proposition - appreciating, of course, that each matter must turn on its own circumstances - the longer the period of extension that is sought, the more difficult it is to establish that the interests of justice require it. Given the length of the extension that is sought presently, the court might need to be persuaded that the circumstances here are "exceptional": Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89, [3].
In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579, Kiefel CJ, Gageler, Keane and Gleeson JJ observed (at [18]), in relation to the court's power under s 477A(2) of the Act (references omitted):
18 …there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
In considering whether or not it should revoke the Cancellation, the Tribunal was concerned to comply with the requirements of what was then known as "Direction no 79". Direction no 79 was a direction issued under s 499(1) of the Act. Amongst other things, it required that the Tribunal take account of various matters when considering whether or not to revoke the Cancellation. One such matter - described in Direction no 79 as a "primary consideration" - was the "expectations of the Australian community".
The Tribunal set out the nature of that consideration in its written reasons for affirming the Delegate's Decision:
Paragraph 13.3(1) of Direction no. 79 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.
Paragraph 6.3(2) of Direction no. 79 sets out the following principle:
The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
Later, the Tribunal reasoned:
Although the expectations of the Australian community will often weigh against an Applicant, as explained by Member Burford, the Tribunal can in the exercise of its discretion decide how much weight is to be given to this consideration in the process of weighing up the primary and other considerations.
Applying the comments of Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and Bromwich J in Afu, the Tribunal finds that the Applicant has committed child sexual offences which are serious offences and the Australian community would reasonably expect that he should not hold a visa. That is, the Australian community would expect the non-revocation of the cancellation of the Applicant's Visa. In determining the weight to be applied to this consideration, the Tribunal has considered the primary considerations, including the serious nature of the offences committed by the Applicant and the unacceptable risk of harm to minor children if he were to reoffend.
The Tribunal has balanced these considerations against the other considerations, which are discussed below, including the strength, nature and duration of the Applicant's ties to Australia and the hardship the Applicant would face if he was returned to the United Kingdom, which weigh in the Applicant's favour.
Nevertheless, the Tribunal finds that on balance, the expectations of the Australian community would be that the decision to cancel the Applicant's Visa should not be revoked. The Tribunal finds that this consideration weighs strongly against the revocation of the cancellation of the Applicant's Visa.
Mr Varley's substantive challenge would (if an extension of time were granted) proceed on the footing that the Tribunal "…wrongly made the weighting exercise internal to the 'expectations of the community' consideration, wrongly brought forward the weighting exercise into the 'expectations of the community' consideration, and applied a wrong notion of 'balancing'".
In particular, he fixes primarily (although not solely) upon the observation contained at [127] of the Tribunal's reasons: namely, its finding that "…on balance, the expectations of the Australian community would be that the decision to cancel [the Visa] should not be revoked". That, he maintains, betrays some want of understanding by the Tribunal of what compliance with Direction no 79 required. It was not for the Tribunal to make any assessment of community expectation, the submission continues; rather, it was for the Tribunal to accept, as read, the statement of community expectation contained in Direction no 79 and then to weigh that alongside other considerations in determining whether or not to revoke the Cancellation.
In Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870, [21]-[22], Kennett J observed that:
The metaphor of "weighing" relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is "another reason" for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker's personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker's duty to "call his own attention to the matters which he is bound to consider" (Peko-Wallsend at 39 (Mason J), quoting Wednesbury at 229 (Lord Greene MR)) and to give "proper, genuine and realistic consideration to the merits of the case" (Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987; noted (1987) 14 ALD 291, 292). Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; 176 FCR 153 at [110] (Rares J) (varied on appeal (Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; 176 FCR 203), but not on this point).
In the "real world" (to invoke the frequently cited statement by Hill J in Enichem ANIC Srl v Anti-Dumping Authority (1992) 39 FCR 458, 469), the ultimate decision as to which relevant factors are more important (and thus which side of the line a case falls) is likely to be instinctive, and correspondingly unlikely to be explained in granular detail. The thought process required of (and undertaken every day by) administrative decision-makers is therefore not something that can sensibly be dissected and identified as involving the impermissible attribution of excessive weight to a relevant factor. Attempting to do so takes the metaphor of "weighing" further than it can realistically go. If all of the mandatory considerations (and no irrelevant considerations) have been brought to bear, the ultimate synthesis - absent some statutory requirement to the contrary - is one for the decision-maker; and (aside from cases where legal unreasonableness is manifest in the outcome) the label "irrational" does not have any legal content when applied to that synthesis.
It can readily be accepted that the Tribunal in this case was not charged with assessing for itself what the expectations of the Australian community vis-à-vis Mr Varley might actually have been: Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 196 [38] and [52]. There is little doubt that the Tribunal understood that reality. It referred expressly to earlier decisions that described the statement of expectation in other ministerial directions as a form of deeming provision. For example, referring to an earlier direction that was the subject of consideration in Afu v Minister for Home Affairs [2018] FCA 1311, the Tribunal noted that:
…Bromwich J stated the following:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated… The Tribunal was required to give effect to those norms…
The Tribunal then proceeded to note that it could, "…in the exercise of its discretion decide how much weight is to be given to this consideration in the process of weighing up the primary and other considerations", before moving on to observe, in light of Mr Varley's offending, that "…the Australian community would expect the non-revocation of the cancellation of [his] Visa". It professed to having "…balanced th[o]se considerations against [others that] weigh[ed] in [Mr Varley's] favour".
Nowhere in the Tribunal's lengthy reasons was there reference to any criteria that were considered apt to guide an independent assessment as to what might have been the expectations of the Australian community vis-à-vis Mr Varley. Nor was there any reference to any evidence upon which such a difficult - realistically, impossible - excursion might sensibly have been facilitated. Those realities tell against the thesis that Mr Varley advances (namely, that the Tribunal wrongly considered that it was obliged or empowered to assess for itself the expectations of the Australian community).
Read in context, the observation upon which Mr Varley fixes is most realistically understood as an acceptance that, although there were considerations that favoured revocation, they were not capable of accumulating (or did not accumulate) to a point sufficient to overcome what the Tribunal factored as the weightier consideration of community expectation.
Proceeding on that basis involved no error. Mr Varley's substantive application - were he given the extension of time that he requires to prosecute it - would rest upon what, with respect, is an ambitious parsing of the Tribunal's reasons. It is, again intending no disrespect, lacking in merit.
It suffices, then, to conclude that the unconvincing explanation that has been offered for the scale of the delay to date and the want of merit that attends the proposed application warrant, at least in combination (and probably individually), the refusal of the extension that is sought. An order granting an extension would not be necessary to serve the interests of the administration of justice.
The application should and will be dismissed with costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.
Parties
Applicant/Plaintiff:
Varley
Respondent/Defendant:
Minister for Immigration, Citizenship and Multicultural Affairs