Wahed v Minister for Home Affairs

1. The application for an extension of time be dismissed.
2. The applicant pay the first respondent's costs of the application, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MOSHINSKY J: 1 This is an application for an extension of time to appeal from a judgment of a judge of this Court. The judgment was given on 31 August 2018. The application for an extension of time was filed on 15 October 2018, which was outside the normal period for filing a notice of appeal. Any appeal should have been filed by 21 September 2018, being 21 days after the judgment of the primary judge. The applicant is therefore 24 days out of time. 2 The background to this application is set out in the reasons of the primary judge. The following summary is based on those reasons. 3 The applicant is a citizen of Lebanon who first arrived in Australia in 1998. He held a Class BB Subclass 155 Five Year Resident Return visa (the visa). On 22 November 2016, a delegate of the first respondent (the Minister) decided to cancel the applicant's visa. That decision (the cancellation decision) was made pursuant to s 501(3A) of the Migration Act 1958 (Cth). 4 Where a cancellation decision is made under s 501(3A) of the Act, s 501CA(3) requires the Minister to give notice of the decision to the person whose visa has been cancelled and invite the person to make representations about revocation of the cancellation decision. Section 501CA(4) of the Act empowers the Minister to revoke a cancellation decision where such representations have been made. 5 The applicant made representations seeking revocation of the cancellation decision. Subsequently, on 12 October 2017, a delegate of the Minister made a decision under s 501CA(4) not to revoke the cancellation decision (the non-revocation decision). 6 On 19 October 2017, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the non-revocation decision. 7 By its decision of 4 January 2018, the Tribunal affirmed the non-revocation decision. 8 It was not in contest before the Tribunal that the applicant did not pass the character test specified by s 501(6)(a) of the Act. Accordingly, the only basis upon which the cancellation decision could be revoked was that specified in s 501CA(4)(b)(ii), "that there is another reason why the [cancellation] decision should be revoked". The Tribunal considered that, in determining whether there was any such reason, it was bound to apply Ministerial Direction No 65 (Direction 65), which identified a number of "primary" and "other" considerations. Having regard to these considerations, the Tribunal concluded that there was no such reason. The basis for the Tribunal's conclusion was adequately summarised in the Minister's submissions before the primary judge as follows: • there is a threat of harm (or risk of danger) to the Australian community if the cancellation decision were to be revoked because the evidence suggested there was a 'medium' chance of the applicant reoffending. Such a situation would not be acceptable to the Australian community: [97]-[101]; • the threat to the Australian community outweighed factors in favour of revocation such as the applicant's connection to Australia (the Tribunal concluded that the applicant also had ties to Lebanon and had travelled there several times in recent years, including in 2008 and 2009): [89]-[94]; • revocation was not in the best interests of the applicant's minor Australian children because the evidence demonstrated there was an intervention order in place preventing him from having access to them and he had 'lost contact' with them. Further, there was no evidence from the children or their mother that suggested it would be in their best interests for the cancellation decision to be revoked: [107]-[118]; and • the Tribunal did not accept on the evidence that the applicant was bisexual and therefore would encounter problems in Lebanon for that reason: [119]-[128]. 9 The applicant was legally represented at the hearing before the Tribunal. The applicant also had legal representation at the time of filing his application to this Court for judicial review of the Tribunal's decision. 10 The applicant's application for judicial review raised a single ground as follows: The decision of the [Tribunal] under s 500(1)(ba) of the Act to affirm the refusal of the [Minister] to revoke the cancellation of the applicant's visa under s 501(3A) of the Act was invalid because there was no decision under s 501(3A) of the Act which was capable of being revoked under s 501CA. 11 That ground was particularised and, relevantly, asserted that the cancellation decision and the consequent detention of the applicant "rendered s 501(3A) a punitive provision and therefore an unlawful interference by [the Minister] in the Judicial Power of the Commonwealth in Chapter III of the Constitution of Australia". 12 By the time that the applicant's application came on for hearing before the primary judge, the applicant was no longer legally represented. 13 The primary judge dealt at [12]-[14] of the reasons with the question of whether a notice was required under s 78B of the Judiciary Act 1903 (Cth). His Honour considered that no real or substantial constitutional point had been raised in light of the judgment of the High Court in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333. 14 The primary judge referred at [15] and [16] to the applicant's submissions, and concluded as follows at [17]-[20]: 17 As the Minister correctly contended, all the matters raised by the applicant went to the merits of the cancellation decision and were addressed by the Tribunal. 18 The applicant's submissions failed to point to any error made by the Tribunal, let alone any jurisdictional error. No jurisdictional error is apparent from the reasons of the Tribunal. 19 The applicant did not seek leave to raise any new grounds not raised by his application and nothing raised by the submissions made by the applicant suggested that any additional ground was available to be raised. 20 For those reasons the application must be dismissed. There being no basis for concluding that costs should not follow the event, it is appropriate that the applicant pay the Minister's costs of the application. 15 The applicant has applied for an extension of time to file a notice of appeal. He relies on two affidavits in support of his application. He relies on the fact that there was a riot on 2 September 2018 at the detention centre where he is being held which caused all of his papers to be destroyed. He also refers to the fact that he is representing himself. 16 In considering an application for an extension of time, the relevant considerations include the length of the delay, the applicant's explanation for the delay, any prejudice to the respondent and the substantive merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. 17 In the present case, I accept that the applicant has provided an explanation for the delay. The period of delay is relatively short. It does not appear that any prejudice would be suffered by the Minister. 18 The critical issue in relation to the present application is the merits of the proposed appeal. 19 The draft notice of appeal contains the following grounds: 1. The Federal Court filed to complete the task required of him under s501 (CA)(4) of the Migration ACT 1958 (Cth) (the act) when considering whether to revoke a decision under s501(3A) to cancel the applicants visa, by failing to take in to account the factual circumstances of the applicants conduct 2. The Federal Court errored in that he over whelming consideration/weight to the risk of Applicants presented to Australian community and the possible re-offending 3. The Federal Court errored in that he give not enouh consideration to the consequence of the visa cancellation on the Appellants family who is under 18 years of age and citizen and the best interests of all relatives of the Applicants who are Australian citizens 4. The Federal Court was wrong in making subjective abut the expectation of Australian Community to the Appellants 5. The Federal Court based my decision on the First respondent and Second respondent decision and the Cases cited of falzon v Minister for Immigration and Border Protection (2018) 92 ALJR 201. 6. The Federal Court decide to proceed with my case without my legal presentation where I don't have a lawyer and I couldn't represent myself. (Errors in original.) 20 In my view, these proposed grounds of appeal are without merit. The proposed grounds of appeal fail to identify any basis for the Court to be satisfied that an extension of time is warranted. 21 The draft notice of appeal raises six grounds of appeal. Grounds one to four were not raised in the proceeding before the primary judge and the applicant requires leave to raise them for the first time on appeal: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51. 22 Grounds one to four proceed on the mistaken assumption that his Honour undertook a review of the merits of the delegate's decision not to revoke the cancellation decision. Specifically, the grounds allege that his Honour failed to take into account the factual circumstances of the applicant's conduct and erred in his application of certain considerations which originate from Direction 65. These considerations include: the risk the applicant posed to the Australian community; his risk of re-offending; the consequences of cancellation on the applicant's family and relatives; and the expectations of the Australian community. 23 In my view, grounds one to four are misconceived. The application before the primary judge was a judicial review application in relation to the decision of the Tribunal dated 4 January 2018. His Honour's task was to identify whether there was any jurisdictional error in the Tribunal's decision. In undertaking judicial review, his Honour was unable to undertake a review of the merits of the Tribunal's decision, to apply the considerations in Direction 65 or to make a decision on the facts as to whether the cancellation decision should be revoked. His Honour dismissed the application as no jurisdictional error was apparent in the Tribunal's decision ([at 18]). No appellable error is established by these grounds. 24 Ground five simply states that his Honour based his decision on the "first respondent and second respondent decision" and Falzon. This ground does not identify any appellable error in his Honour's decision. His Honour correctly found that in light of Falzon he was bound to conclude that s 501(3A) is not invalid. 25 Ground six alleges that his Honour decided the case in circumstances where the applicant was unrepresented and couldn't represent himself. 26 Courts have an overriding duty to ensure that a trial is fair to all parties. In the context of an unrepresented litigant, that duty requires the Court to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Hamod v New South Wales [2011] NSWCA 375 at [309]-[311], cited with approval in SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 at [37]. However, there is no statutory right to legal representation. Nor is there any absolute right to legal representation at common law: Dietrich v The Queen (1992) 177 CLR 292; New South Wales v Canellis (1994) 181 CLR 309 at 328; Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282 at [93]. In civil proceedings, procedural fairness does not require that a party be provided with legal representation, no matter how serious the consequences of the proceedings might be: SZVLE v Minister for Immigration and Border Protection [2017] FCA 90 at [40], and cases there cited. 27 In the present case, the applicant was legally represented before the Tribunal and at the time he filed his application for judicial review in this Court. At the time of the hearing before the primary judge, the applicant was no longer legally represented and appeared with the assistance of an interpreter. 28 There is nothing in his Honour's judgment nor is there any other evidence before this Court to indicate the applicant took any steps to seek an adjournment so that he could obtain legal representation or that he otherwise raised any issue with his Honour in relation to his ability or capacity to represent himself. 29 Further, there is nothing to suggest that the applicant did not receive a fair hearing. It is evident from his Honour's judgment that the applicant made oral submissions at the hearing to which his Honour had regard, finding that the submissions went beyond the bounds of the applicant's ground of appeal and otherwise went to the merits of the cancellation decision. His Honour otherwise observed that the applicant did not seek leave to raise any new grounds not raised in his application and nothing raised by the applicant's submissions suggested that any additional ground was available to be raised. In these circumstances, no appellable error is established by this ground. 30 In light of the above, the application for an extension of time is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, there will also be an order that the applicant pay the first respondent's costs of the application. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.