Wood v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

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

LOGAN J: 1 Mr Robert Paul Wood is a citizen of the United Kingdom. He was born there on 6 June 1960. He came to Australia three days before his sixth birthday in June 1966. He has been a resident of Australia ever since. Those circumstances hardly make him unique. Notoriously, over the course of the 20th century, both in the period between the First and Second World Wars and for many years after the Second World War, Australia actively solicited and encouraged migration from the United Kingdom to Australia. That in turn, in the post-Second World War period, was a subset of a wide-ranging migration program. 2 In the more than half century which has passed since Mr Wood took up residence in Australia, he has never sought to obtain Australian citizenship. That again hardly makes him unique, particularly in relation to those who migrated here from the United Kingdom. Indeed, there was a time not so long ago when, at ultimately appellant level, there was a view, having regard to the text of the Australian Constitution, that someone with Mr Wood's status as a British subject was someone who could not be deported from Australia. That view, however, is not one which has come to prevail in the High Court: Love v Commonwealth of Australia [2020] HCA 3 (Love's case); Nolan v Minister for Immigration & Ethnic Affairs (1988) 165 CLR 178; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; Re Patterson; Ex Parte Taylor (2001) 207 CLR 391; Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28. 3 The focus, in relation to a right to remain in Australia for a non-citizen, of the Migration Act 1958 (Cth) (the Act) has changed over time. Most recently what is needed for a non-citizen, or at least after Love's case, a non-citizen who has no native title claim, is a visa. Until 9 March 2018, Mr Wood held that class of visa under the Act known as a Class BF Transitional (Permanent) visa. On that date, a delegate of the respondent, Minister for Home Affairs, cancelled Mr Wood's visa under s 501(3A) of the Act. That was on the basis of satisfaction on the part of the delegate that Mr Wood did not pass the character test. In turn, the foundation for that was his commission, and later conviction and sentencing, in respect of offences which attracted, in the way described in s 501 of the Act, a sentence of imprisonment for 12 months or more. 4 By s 501CA(4), it is provided that the Minister may revoke a visa cancellation decision, of the kind described, if the person concerned makes representations in accordance with an invitation given under s 501CA and the Minister is satisfied either that the person passes the character test to which I have made reference, or that there is another reason why the original decision should be revoked. 5 Mr Wood took up an invitation to make representations to the Minister seeking revocation of the visa cancellation decision. Those representations came to be considered by the relevant Minister of State (Minister), the Honourable Peter Dutton MP, personally, in September 2019. On 19 September 2019, for reasons which came to be furnished to Mr Wood, the Minister decided not to revoke the visa cancellation decision. 6 This Court has jurisdiction judicially to review, in the original jurisdiction, such a ministerial decision, but an application seeking judicial review must be filed within a 35 day time limit. No such application was filed within that time limit by Mr Wood. 7 On 13 December 2019, the applicant filed an application seeking an extension of time within which to apply for judicial review. It is that application which falls for determination. In the course of interlocutory case management, and after concluding that it was in the interests of justice so to order, I ordered that Mr Wood's extension of time application be argued today on the footing that, as to the merits of the proposed ground of judicial review, that argument would be treated as argument on a substantive judicial review application in the event that an extension of time was granted. 8 That order was made as recently as 4 February 2020. Since then, and notoriously, particular public health restrictions have attended not only community life but also the exercise of judicial power. Thus, whilst I have sat in open Court for the purposes of the hearing of the application, the application has necessarily been heard via telephone conference with counsel, rather than by way of counsel attending physically in Court, to make oral submissions supplementing written submissions earlier filed. Each party consented to that course and I am quite satisfied that it served the interests of justice. I am indebted to counsel, not just in the ordinary way, for the submissions made orally and in writing, but also for the way in which each has adapted their submissions to the present exigencies in relation to their presentation. 9 It would also not do justice to this case not to record an indebtedness to Mr Wood who has participated in terms of attendance via telephone and also necessarily also supplemented an affidavit, earlier made and relied upon by him by oral evidence. Mr Wood has been a model of courtesy in respect of what must obviously be a most stressful moment in his personal life. 10 The question on any extension of time application entails looking at three particular considerations, none of which is mutually exclusive from the other. Those considerations are: what is the delay and is there an acceptable explanation for it; what, if any, prejudice is there to a respondent, in this case the Minister; and does the proposed application enjoy sufficient prospects of success to warrant the granting of an extension 11 In observing that those considerations are not mutually exclusive, what I had in mind is that even if a delay were significant and the explanation for it somewhat thin, a clear case of jurisdictional error on the part of the Minister might require, even demand, that an extension of time be granted in the interests of justice. 12 Of course, in a sense, the Minister is not personally prejudiced by a failure to observe the time limit prescribed in the Act in respect of an application for judicial review, but it is to be remembered that the Minister is charged under the Administrative Arrangements promulgated by His Excellency the Governor-General under the Constitution, with the administration of, materially, the Act. That is a weighty responsibility which entails, amongst other things, the timely administration of the Act in relation to sequels that Parliament has contemplated to administrative decisions. In the ordinary course of events, once a visa has been cancelled and there has been a decision not to revoke that cancellation, a person should be deported from Australia as soon as possible: s 198(2B) of the Act. Delay in the making of a judicial review application cuts across that particular statutory obligation. Here, of course, Mr Wood is subject to imprisonment in Western Australia in respect of particular offences so the imperative quality to which I have referred is, in practice, diminished by that imprisonment. 13 As to an explanation, Mr Wood made reference in his affidavit to not receiving in full the reasons furnished by the Minister. I rather took this to mean, taking into account his oral evidence, that at the time when he signed a receipt on 25 September 2019 for a letter from the Minister's department of 24 September 2019 which enclosed the Minister's reasons and, apparently, the various documents to which the Minister had reference in making the decision, he had not received, inside the prison, all of the attachments. In any event, Mr Wood certainly moved promptly, if misguidedly, with respect, to challenge the Minister's non-revocation decision. He filed an application in the Administrative Appeals Tribunal (Tribunal). 14 On 22 October 2019, after it had conducted a telephone directions hearing and heard submissions, the Tribunal concluded, correctly, that it had no jurisdiction to review the decision because it was one made by the Minister personally. On the evidence, Mr Wood had assistance in the preparation of the application for review filed in the Tribunal. Also on the evidence, it is more likely than not that the complete set of documents, comprising the Minister's decision, the reasons for it and the attachments, was lodged with the Tribunal. So at some stage before 25 September 2019, and perhaps not long before, the complete set of documents had come to Mr Wood's attention. 15 Though his making of an application to the Tribunal was misguided, it certainly evidences a disposition on Mr Wood's part not to rest on his rights and to convey such an indication to the Minister. Even allowing for this, and as was put in submissions on behalf of the Minister, a week or so short of two months then passes between the Tribunal's decision dismissing the review application for want of jurisdiction and the filing of the extension of time application. 16 Mr Wood's evidence is that he sought legal aid in relation to challenging the Minister's decision once it became apparent that the Tribunal lacked jurisdiction. I do not doubt for one moment the difficulties which can attend a person in prison in seeking and obtaining legal advice. Further, it is a feature of the originating application as filed, that Mr Wood, at the time of filing, was acting on his own behalf. 17 Whilst the explanation which has been given is not of the most compelling kind in relation to delay, much turns, for reasons which I have given, in relation to whether or not to grant an extension on whether there are sufficient prospects to warrant that. 18 Mr Wood has, since the filing of the application in December, had the benefit of advice from counsel and solicitors. That benefit is all too evident in relation to the way in which the proposed ground of review has come to be formulated. That is found in a document filed on 13 March 2020. As there formulated, the proposed ground of review is as follows: 2. The Respondent Minister's decision was arbitrary, capricious and legally unreasonable in that: a. he failed to consider members of the applicant's family, including children, as members of the Australian community; b. he failed to carry out the statutory task required by s501CA(4) by wrongly regarding his task as guaranteeing the safety of the Australian community; c. he misconstrued s501CA(4)(b)(ii) or asked a wrong question or took an impermissibly narrow approach or construction to s501CA(4)(b)(ii) by failing to find that there were other reasons why the original decision on the basis of the findings of fact made by him; d. he therefore constructively failed to exercise jurisdiction under s501CA(4); and e. the decision was unreasonable. 19 Correctly, Mr Rebetzke of counsel, who appeared for Mr Wood, in his careful and concise submissions, recognised that a particular pertinent authority in relation to the proposed ground of review was Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton). That particular case was sought to be distinguished from the present on the basis that in the present case, and as his reasons reveal, the Minister had made particular findings of fact, which are as follows: (a) that non-revocation of the decision would cause his step-daughter Georgia - then aged 11 - "emotional, financial and practical hardship"; (b) that it is in the best interests of Georgia for the visa cancellation to be revoked; (c) that it is in the best interests of the grandchildren Tre, Aaliyah, Josie and Teliesha that the visa cancellation be revoked; (d) that as a result of a non-revocation decision the applicant's family would experience emotional hardship, in particular the applicant's mother who the Minister found to be unlikely to able to visit the applicant in the UK due to her ailing health; and (e) that as a result of a non-revocation decision, the applicant's partner Ms Rowell, would experience "emotional, financial and practical hardships". [footnote references omitted] 20 Moving from a reference to these findings of fact which the reasons disclose were made by the Minister, it was then submitted by reference to Stretton, at [7], [62] and [76] and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, at 351, [28], that in this case, the Minister lacked the authority or "decisional freedom" or a "genuinely free discretion" to refuse to revoke the cancellation because: 17. First, in constructing the discretion as being one of community protection against best interests of children and other relevant considerations, the Minister failed to appreciate that the five children whose best interests lay in revoking the cancellation decision are members of the Australian community with a right to (at least) the same protection under the law as any other members of the Australian community. The decision-making therefore has an impermissible arbitrary quality to it. 18. Second, it should be inferred from the reasons that the Minister wrongly regarded the question as being whether he could "rule out" the possibility of future reoffending or, in other words, the Minister wrongly regarded himself as having the task of guaranteeing the safety of the community. [emphasis in original] 21 For these reasons, it was submitted that the case was one in which the reasons given by the Minister were insufficient to outweigh an inference that the decision is "so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power", the latter taking up an observation made by Allsop CJ, at [13] in Stretton. 22 The Minister's riposte to this was that the particular findings of fact to which reference was made in Mr Wood's submissions were a distinction without a difference in terms of the unreasonableness jurisdictional error ground. In other words, it was put that these findings represented an engagement closely with the representation made by Mr Wood to the Minister, and that what had occurred manifestly from the reasons was a balancing of these particular factors with another. That other was the view reached by the Minister as to an ongoing risk that Mr Wood would reoffend. 23 Mr Wood has, on the evidence, a lengthy criminal history, notably for a succession of drug-related offences, but also for attempted murder. The Minister's reasons disclose, and the material bears out, that a particular concern on the part of the Minister was that some of the drug offences had occurred whilst he was on bail, and that drug-related conduct had led to particular sanctions whilst he was in prison. 24 The Minister's reasons disclose that he drew the facts he had considered together in that part of his reasons entitled, "Conclusion". He there stated: CONCLUSION 86. I considered all relevant matters including: (1) an assessment of whether the person has made representations in accordance with the invitation for the purposes of s501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character test (as defined by s501) for the purposes of s501CA(4)(b)(i); (3) an assessment of whether I am satisfied that there is another reason why the original decision should be revoked for the purposes of s501CA(4)(b)(ii); and (4) all evidence available to me, including evidence provided by, or on behalf of, Mr WOOD. 87. I concluded Mr WOOD has made representations in accordance with the invitation. 88. I am not satisfied that Mr WOOD passes the character test (as defined by s501). 89. In considering, in light of Mr WOOD's representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of Mr WOOD's step daughter, Georgia, and his grandchildren Tre, Aaliyah, Josie and Teliesha. I found that their best interests would be served by the revocation of the original decision. 90. On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by Mr WOOD, that of the sale and supply of prohibited drugs but also including violent offending such as Attempt to Kill. 91. Further, I find that the Australian community could be exposed to significant harm should Mr WOOD reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr WOOD. 92. I am cognisant that where significant harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr WOOD, than I otherwise would, because he has lived in Australia for most of his life, from a very young age. 93. In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr WOOD represents an unacceptable risk of harm to the Australian community and that the protection of the. Australian community outweighed the best interests of his step daughter, Georgia and grandchildren, Tre, Aaliyah, Josie and Teliesha, as a primary consideration, and any other considerations as described above. These include his lengthy residence and ties, his claims that he will suffer hardship if returned to the United Kingdom, employment, volunteer/charity work, familial ties to Australia and the hardship Mr WOOD, his family and social networks will endure in the event the original decision is not revoked. 94. Having given full consideration to all of these matters, I am not satisfied, for the purposes of s501CA(4)(b)(ii), that there is another reason why the original decision under s501(3A) to cancel Mr WOOD's visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr WOOD's Class BF transitional (permanent) visa remains cancelled. [emphasis in original] 25 It is always necessary to approach the reasons of a Minister of State, or other administrative official, with the exhortation found in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 in mind. One does not read such reasons narrowly and with an eye for error. In isolation in [91], the Minister stated, "I could not rule out the possibility of further offending by Mr WOOD". In context, that looks to me to be a way in which the Minister expressed a conclusion on the material before him in relation to a likelihood of reoffending. It is relevant for the Minister to take into account risk to the community in the context of deciding whether there is "another reason". It is not necessary in this case to reach any concluded view as to whether it is mandatory for the Minister so to do because the Minister chose to do that: Moana v Minister for Immigration and Border Protection (2016) 230 FCR 367, at [66] per Rangiah J (North J agreeing); see also AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451, at [50] - [51]. There are statements at appellate level which would suggest that it is mandatory. In any event, the material before the Minister amply admitted of the conclusions which he reached in relation to risk. It is also a noteworthy feature of the material that there were judicial expressions of the degree of risk presented by Mr Wood. Some judicial officers regarded a risk of reoffending as high. 26 In relation to the jurisdictional error ground of unreasonableness and by reference to the Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, I cited in Ham v Tax Practitioners Board (2018) 108 ATR 869, at [55] (Ham), two passages, that of Kiefel CJ at [10]: In the joint judgment in Minister for Immigration and Citizenship v Li, it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. [footnote references omitted] And that of Nettle and Gordon JJ at [82]: Nor is the abuse of statutory power limited to a decision which may be described as "manifestly unreasonable", or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused - where, for instance, there is no "evident and intelligible justification" for the decision. As Gageler J explained in Minister for Immigration and Citizenship v Li, "[r]eview by a court of the reasonableness of a decision made by another repository of power 'is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process', but also with 'whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law'". [footnote references omitted] Having so done, I observed in Ham at [56]: These recent pronouncements at ultimate appellate level about unreasonableness as a ground of jurisdictional error confirm that the ground is not confined to the irrational or the bizarre but leave the precise metes and bounds of unreasonableness elusive. They are harmonious with the observation in relation to unreasonableness earlier made by Mason J in Peko-Wallsend, at 41, that, "both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance". That may well be another way of describing what does not fall "within a range of possible acceptable outcomes which are defensible in respect of the facts and law" (emphasis added). Even so, it still, with respect, leaves the metes and bounds of unreasonableness imprecise or elusive. Perhaps those metes and bounds always will be so, save in hindsight and on the facts of a particular case after the judgement in which a conclusion of unreasonableness has been reached on those facts and has become final. In Jacobellis v Ohio, State of 378 US 184 (1964), Justice Stewart, in explaining why Louis Malle's film, "The Lovers" was not obscene under the test for obscenity developed in Roth v United States 354 US 476 (1957), and therefore protected speech under the First Amendment that could not be censored stated, at [197]: 197. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that. In reflecting on principle and authority with respect to unreasonableness for the purpose of determining the challenge made to the Tribunal's decision on the basis of unreasonableness in the absence of "satisfaction" as to eligibility, I was struck by how relevant by analogy seemed his Honour's candid statement. So I shall not today attempt further to define the kinds of circumstances I understand to be embraced within the shorthand description, "unreasonable" and perhaps I could never succeed in intelligibly doing so, but (at least after Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 and Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158) I know it when I see it. And, for reasons set out below, applying what was said about unreasonableness in the passages quoted above from SZVFW, the absence of satisfaction involved in this case is not that. 27 Since then, there have been other endeavours to describe, or at least summate, the jurisdictional error ground of unreasonableness: see Minister for Immigration and Border Protection v Haq (2019) 365 ALR 202, at [37] and Khalil v Minister for Home Affairs (2019) 372 ALR 424, at 34 to 35. 28 It is sometimes said that "unreasonableness", or "unreasonable", can be a description given in relation to a decision with which one emphatically disagrees. I have no doubt at all that Mr Wood and his loved ones emphatically disagree with the Minister's decision. It is a very hard thing indeed, some might think, to send overseas to a country last encountered in early childhood a person who has been a resident of Australia for over half a century. But these are value judgments which are consigned to a Minister responsible to Parliament. Courts are concerned in this type of case only with the limits of legality, with jurisdictional error. To go beyond those limits, as I was reminded in Stretton, is to tread impermissibly into merits review, and that is something one must not do as a judicial officer for all of the reasons given by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1. 29 It is said sometimes that, in relation to an extension of time application, one should approach the question of whether the prospects are sufficient to warrant an extension in a reasonably robust or general way; impressionistic, as it were. Obviously enough, I have not done that in these reasons. That is in deference to the submissions of counsel and also because of the particular consequence for Mr Wood that will attend dismissal of an extension of time application. 30 The Minister's reasons, in my view, are nothing more than a decision which is a value judgment; one within a zone of permissible exercise of discretion. I do not regard the proposed ground of review as having, for reasons which have been set out above, any prospect of success sufficient to warrant an extension. Recalling the observation that I made in Ham, by reference to Stewart J's observation, at least after Stretton, and perhaps this is a conceit, I know unreasonableness when I see it, and this is not that. 31 What necessarily follows from these reasons is that, taking into account the explanation given and prospects, this is not a case for the granting of an extension of time. The application must be dismissed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.