Zyaran v Minister for Home Affairs

1. The application for an extension of time be refused.
2. The applicant pay the first respondent's costs to be agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ABRAHAM J: 1 The applicant seeks an extension of time to enable him to engage the original jurisdiction of this Court to review the decision of the Administrative Appeals Tribunal (Tribunal) which affirmed the decision of the Minister's delegate not to revoke the decision to cancel the applicant's visa. The application to review the decision by the Tribunal is six weeks out of time. 2 For the reasons below, the application for an extension of time is refused. Background 3 The applicant is a citizen of Fiji who came to Australia in 1990 at a very young age. On 21 February 2017 the applicant was sentenced in the District Court of New South Wales to an aggregate term of imprisonment of four years and six months for a number of related offences including aggravated taking and driving a motor vehicle with a person in it, inflicting actual bodily harm, failing to stop in a police pursuit and driving recklessly. This offending occurred in the very early hours of the morning and involved, amongst other things, a violent assault on a taxi driver after the applicant had entered his taxi, after which the applicant took the taxi leading to a police pursuit. 4 On 1 September 2018, as a consequence of the offending and subsequent sentence, a delegate of the Minister cancelled the applicant's visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act). The applicant made representations to the Minister requesting that he exercise his power to revoke that cancellation under s 501CA(4) of the Migration Act. On 18 July 2018, a delegate of the Minister decided not to revoke the cancellation. The applicant applied to the Tribunal for a merits review. On 11 October 2018, the Tribunal affirmed the delegate's decision. 5 While the applicant was represented in the Tribunal, he is unrepresented in this Court. 6 This application for an extension of time is made pursuant to s 477A(2) of the Migration Act. In support of the application, the applicant filed the following documents: (1) an application for an extension of time, filed on 31 December 2018, which attached a document entitled "[g]rounds of application for extension of time"; and (2) an affidavit in support of the application filed on 31 December 2018. Although some of this material is referred to as "grounds," it does not necessarily follow that this is an accurate characterisation, and I observe that the documents that were filed did not contain any ground challenging the Tribunal's decision. 7 On 31 May 2019, the applicant filed a document entitled "[t]he reasons why I think I should be given a second chance at the AAT". Filed with this were other documents which the respondent accepted were before the Tribunal and were not new information. On 5 June 2019, two days following the hearing of this application, the applicant sought leave to file updated drafts of those documents filed on 31 May 2019. The respondent did not object to the amended documents being filed as they did not raise any new substantive grounds of appeal. In that context, leave to file the documents and to take them into consideration in this application, was granted. Tribunal Decision 8 As noted above, on 11 October 2018, the Tribunal affirmed the decision of the delegate: see Zyaran and Minister for Home Affairs (Migration) [2018] AATA 3785 (Zyaran). 9 After referring to the procedural history of the matter the Tribunal referred to the applicant's background. The Tribunal referred to his criminal offending and to sentencing remarks related to the two significant groups of offending. The Tribunal observed that after the 2010 offences the applicant had been warned by the Department about the possible cancellation of his visa if he committed further offences. 10 The Tribunal referred to the relevant legislative provisions. In considering whether to exercise its discretion under s 501CA(4) to revoke the cancellation of the applicant's visa, the Tribunal had regard to Direction No. 65 which commenced on 23 December 2014 (Direction). The Tribunal noted that it was bound by the Direction under s 499(2A) of the Migration Act. The Tribunal observed that the Direction required decision makers to take into account the primary considerations (as set out in paragraph 13(2) of the Direction) and other considerations (as set out in paragraph 14(1) of the Direction) relevant to the individual case, and that primary considerations should generally be given greater weight than other considerations. 11 As the Tribunal stated, it was not in dispute that the applicant failed the character test (as defined by s 501(6) of the Migration Act), and therefore, the sole issue for consideration on the review (pursuant to s 501CA(4)(b)(ii) of the Migration Act) was whether there was another reason why the original decision should be revoked. 12 First, the Tribunal considered the protection of the Australian community. It characterised the applicant's criminal offending as "extremely serious". The Tribunal concluded that in relation to the risk of harm presented by the applicant, future harm would be serious and there was a "significant risk that Mr Zyaran will continue to engage in criminal conduct of the type he has engaged in previously should he return to live in the Australian community". In reaching that conclusion, the Tribunal considered the evidence given by the applicant and by a number of witnesses. The Tribunal also took into account evidence of the Court's sentencing remarks in respect of the applicant's 2010 and 2017 offending. In connection with this finding, the Tribunal observed that the applicant had been offered assistance (both from the justice system and from his family) over many years to enable him to rehabilitate, but that he had not taken advantage of these opportunities and instead, had continued to reoffend. Further, that since the 2010 offence, the applicant's offending had increased in seriousness. The Tribunal noted that in 2017 the sentencing Court was "somewhat guarded" about his prospects of rehabilitation, and that the applicant appeared to have an unresolved substance abuse problem that contributed to his offending. The Tribunal concluded that the need to protect the Australian community weighed heavily in favour of not revoking the visa cancellation. 13 Second, the Tribunal considered the interests of any minor children in Australia but found that this consideration was not relevant on the basis that the applicant only referred to a niece who was three months old at the time of the hearing, and with whom he had not had contact. 14 Third, the Tribunal considered the expectations of the Australian community. While acknowledging that the Tribunal had no evidence to enable it to determine the expectations of the Australian community, the Tribunal considered the reasons set out by the Federal Court in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76], and found that the expectations of the Australian community weighed against the revocation of the visa cancellation. 15 Fourth, the Tribunal considered other matters required to be considered under the Direction. The Tribunal took into account international non-refoulement obligations (finding there was no evidence to suggest such obligations were relevant in this case); the strength, nature and duration of the applicant's ties to Australia; the impact on Australian business interests; the impact on victims; and the nature and extent of impediments the applicant may face if he is removed from Australia. 16 Finally, engaging in the requisite balancing exercise, the Tribunal concluded that there was no other reason why the cancellation of the applicant's visa should be revoked. Consideration 17 Given the date of the Tribunal's decision, the applicant was required to commence proceedings in this Court on or before 15 November 2018: s 477A(1) of the Migration Act. As noted above, the application is six weeks out of time, having been filed on 31 December 2018. 18 The factors to take into account in considering whether to extend time are well established. They are conveniently summarised by Foster J in SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 139 ALD 252 at [46]-[48] as follows: 46. There are no particular criteria specified in s 477 which must be satisfied as part of the concept of "the interests of the administration of justice ...". The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice. 47. The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include: (a) Whether there has been a reasonable and adequate explanation for the applicant's delay; (b) Whether there is any prejudice to the Minister; (c) Whether the applicant's substantive case for judicial review is sufficiently arguable to justify the extension of time. 48. The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases. 19 Importantly in this case, as outlined above, a matter relevant in considering whether to extend time is whether the applicant's substantive case for judicial review is sufficiently arguable to justify the extension of time. 20 The practical application of that concept was considered by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 who relevantly observed at [62]-[63]: 62… [I]t will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2). 63. The correct approach may be expressed by the use of language such as whether a ground is "arguable", "reasonably arguable", "sufficiently arguable" or has "reasonable prospects of success" (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision. 21 This approach was endorsed by the Full Court of the Federal Court (Tracey, Perry and Charlesworth JJ): see MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [21]-[23] and [38]. 22 I note also the comments of Bromwich J in Afu v Minister for Home Affairs [2018] FCA 1311 at [3]: The merit threshold for the grant of an extension of time is not especially onerous. It will seldom be in the interests of justice to grant an extension of time where there is little or no prospect of success, not least because of the additional resources that may need to be expended. However, unless the grounds are hopeless on an impressionistic reading of them that is without the benefit of detailed argument, such that it can be confidently concluded that the grounds must fail, the better approach may be to grant the extension of time and then consider the grounds properly and with the benefit of full argument: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62] and [66]. In this case, an impressionistic approach to the proposed grounds of review does not warrant the epithet of "hopeless". The Court has had the benefit of full argument on those grounds, such that there is no question of any additional resources being expended by the grant of an extension of time. It follows that the appropriate course is to grant the extension of time and consider the grounds advanced in full. 23 To grant an extension of time the Court must be "satisfied that it is necessary in the interests of the administration of justice to make the order": s 477A(2) of the Migration Act. 24 Against that background I turn to consider this application. 25 The respondent objects to the extension of time on two bases: first, that the explanation offered as to why the applicant did not file his appeal within the time limit is unsatisfactory; and second, (and primarily) on the basis that the grounds for review of the Tribunal's decision in the draft originating application have no arguable merit. 26 It is not suggested by the respondent that the Minister would suffer any prejudice by the grant of an extension of time, but that, of itself, is not enough to justify the granting of an extension: SZQCZ v Minister for Immigration & Citizenship [2012] FCA 91 at [19]. 27 In the alternative, the respondent contended that if the extension was granted, the application for review of the Tribunal's decision should be refused. Given the lateness with which the grounds for review were filed (with the consequence that the respondent's written submission did not address the grounds), the respondent briefly addressed each ground orally. 28 I note that the application for an extension of time and if granted, the application for review, were listed for hearing on the one occasion. 29 The respondent accepted that if the extension of time was granted, there would be no further submissions he wished to put in relation to the substantive application. The applicant was also given an opportunity to put any additional submissions. 30 There are two grounds for the extension of time stated in the originating application: the first being a reference to the relevant rules; and the second, a complaint that the applicant has been misrepresented and therefore needs an extension to file his review. 31 In summary, the basis of the application for an extension (as set out in the applicant's affidavit dated 31 December 2018) is that on 15 November 2018 he attempted to file a review of the Tribunal's decision but filed the incorrect forms. After he was notified of this, he had some interaction with his legal representative from which he understood that a barrister had been found to do the appeal, there may be possible appeal grounds (contrary to what he had previously been advised), but that there were late and additional fees to be paid in order to submit the correct appeal papers. The affidavit is silent as to what happened thereafter. The applicant seeks an extension on the basis that he is unrepresented, and that this, coupled with his limited resources and understanding of court procedure, means that he is disadvantaged. The applicant in oral submissions explained the sequence of events as described in his affidavit. 32 The respondent did not take issue with any of the matters in the applicant's affidavit. The respondent also properly acknowledged the difficulties that can be faced by an unrepresented applicant when attempting to file appropriate documents. 33 It follows that the unchallenged evidence is that the applicant attempted to file an application for review within time, but the documentation filed, was incorrect. The applicant was actively attempting to pursue a review. 34 The applicant's grounds of review of the Tribunal's decision are as follows (as filed on 5 June 2019 and recited with any errors as appear in that document): The reasons on why I think I should be given a second chance at AAT. 1. The age I arrived in Australia is incorrect. The Minister believes I came to Australia at the age of 4 years old. This is incorrect as I came to Australia when I was 2 years of age. I can provide proof of this, as it clearly states on my passport that i arrived in australia on the 18 April 1988. I have mentioned this error numerous times before. 2. My partner's (Nicole Mansweto), support letter or her support given in the witness stand at the AAT hearing was not taken into consideration. The Minister did not look at her supporting evidence. Nicole's support given at the AAT hearing, demonstrates that my future with her is bright and promising. We have plans on getting married and starting a family together. Nicole understands the seriousness of my crimes, and that after my accident, I changed my mentality and outlook on life. I don't want to go down the path of the destructive life i was living before. I really want to do good in my life, I have prospects of spending the rest of my life with Nicole and to hopefully start a family of my own. The emotional and stressful effect on Nicole, if I was removed from Australia would be very difficult as I do not have any family/support, any welfare benefits or even a roof over my head in Fiji was not acknowledged or taken into account. Nicole's support letter and the support given at the AAT hearing is a big factor for my reasons on why i should be able to stay in Australia as it demonstrates I have plans. 3. The Minister also states that I am a risk to minors/children and to the elderly. None of my offences have been against children or the elderly. I feel for the Minister to say this is damaging to my case and to my character, and is making me out to be someone I am not. I feel very offended that the Minister has that outlook on me. 4. The Minister followed Direction 65 when he should have followed direction 79 when looking at my case. 5. Paragraph 25 states that there was a use of a weapon on the victim. This is incorrect, as there is no evidence to support that. At no point did the victim see or feel a weapon on me, nor was there one found on me or in the car. 6. My last offence wasn't a planned or thought out crime. It was committed whilst under the influence of drugs which clearly altered my way of thinking. My drink was spiked with liquid G and valium, which i have never taken before or after that night. This caused me to act in a way I never usually would, and that is completely out of my character. I understand and acknowledge the fact that if the social group I had been surrounding myself with was better, this never would have happened. I regret mixing with the 'wrong' crowd, and should have never put myself in that situation. I know if given the chance, i would be surrounding myself with people that actually care about me. I can confidently say that I have learnt my lesson and never want to be associated with those type of people, drugs, crime - I understand the value of my freedom and building my future, and would never jeopardise it again. 7. The Minister has not taken into consideration my good behaviour since my last offence and accident. The severity of the accident has dramatically changed my behaviour and has given me a new perspective in life. In the accident, nearly losing my life made me appreciate it so much more, and made me realise the self destructive lifestyle I was living and that i never want to go back to. My time in jail this time was different, I was determined to complete my sentence and get out and live a normal life. I knew I had my family and partner waiting for me. In jail, I minded my own business, kept my head down and completed my sentence, without any jail charges or positive urines to any substance! I stayed clean and stayed out of trouble. I didn't get involved or associate with anything that that would risk my freedom, or keep me away from living the best life I could. Even my time at Villawood Immigration Detention Center, i still to this day have not been charged with any further charges. This is a clear indication that not only me but also my mentality has changed. I completed numerous courses that have educated me and assisted me with methods, skills and plans to implement for when I finished my sentence. There is nothing more that I want than to have the opportunity to live a normal life of getting a job, spending time with my loved ones, building a future with my partner, creating a family and being a contributing member of the Australian society. I don't believe it is too late for me to turn my life around, I believe with the right support networks I will not reoffend or be any sort of risk. My good behaviour throughout my imprisonment and at Villawood Immigration Detention Center is a clear indicator that I have grown up and matured and changed my state of mind for the better. I please ask that my matter be taken back to AAT for another review as they have missed this amongst other valuable points. 8. The value of the courses I completed whilst in jail were taken lightly and their importance was overlooked. These courses are intense courses that involved a lot of one on one mentoring. These course assisted me in identifying what my underlying issues were and provided me with strategies to implement and ways to cope. I believe the value and importance of these courses were overlooked because they were not taken seriously, as these courses can not be successfully completed unless you have actually sat down and reevaluate every aspect your life, and then coming up with strategies to implement in order to better cope and handle the problems we have identified. 35 In relation to ground 1, the documentation before the Tribunal has the applicant's date of first arrival in Australia as 1990 and his date of birth as 8 March 1986, therefore the applicant would have been about 4 years old when he arrived in Australia. In any event, it is apparent from the reasons of the Tribunal that the young age of the applicant when he arrived in this country and the consequent length of time he has lived in Australia, were taken into account, see for example Zyaran at [76]-[79] and [91]. Even if there was an error as to the applicant's age, in the circumstances, it would not be a material error such as to constitute a jurisdictional error. 36 In relation to ground 2, it is apparent from the Tribunal's reasons that it expressly took into account the evidence of the applicant's partner: see Zyaran at [51]-[52]. 37 In relation to ground 3, there is no finding in relation to the applicant being a risk to children or the elderly in the Tribunal's reasons. Rather, the Tribunal concluded that should the applicant further engage in such serious conduct as he had already committed, there would be a significant risk of physical harm to members of the community and the loss of property arising from offences such as burglary. The Tribunal also concluded that there was a significant risk the applicant will continue to engage in criminal activity of the type that he had already committed. 38 In relation to ground 4, the Tribunal correctly had regard to Direction No. 65, as it was required to do under s 499 of the Migration Act. The applicant's reliance on Direction No. 79 is misplaced, as that came into effect after the Tribunal's decision. 39 In relation to ground 5, the applicant's complaint appears to relate to the reasons of the Minister and challenges the description of his offending as involving a weapon. The Tribunal had the sentencing remarks for the applicant's offences. I note that in relation to the 2017 offending, the sentencing judge described the applicant as removing an object from under his shirt and using it to hit the victim (cited in Zyaran at [11]). A weapon was also described as having been used in the 2010 offending (cited in Zyaran at [12]). Therefore the factual claim made by the applicant which underpins this ground is inconsistent with the findings of the sentencing judge which was material that was before the Tribunal. 40 In relation to ground 6, the complaint amounts to a merits review of the 2017 offending. As noted above, the Tribunal had the sentencing remarks in relation to the applicant's offending before it. It was not for the Tribunal to go behind the findings contained therein. 41 In relation to ground 7, the applicant complains that his behaviour since the offending has been overlooked. The Tribunal gave detailed consideration of the evidence in support of the applicant's submission that he had changed his behaviour (see for example, Zyaran at [41]-[42]). This was taken into account by the Tribunal. As part of this consideration, the Tribunal noted that the applicant had previously been offered assistance to enable him to rehabilitate, and that despite that, he had reoffended. Moreover, the sentencing judge for the 2017 offending was "somewhat guarded" about the applicant's prospects of rehabilitation and the likelihood of reoffending. 42 Similarly, in relation to ground 8, the courses the applicant had undertaken whilst in custody were taken into account by the Tribunal (see for example, Zyaran at [57]). 43 Regardless of whatever might be said in relation to the proffered explanation for the delay in filing the application, the respondent's submission that there is no merit in the grounds for review should be accepted. 44 As the respondent accepted that no further submission was necessary if the extension of time was granted (on the basis the submission had already been put, and therefore there was nothing to add), this case does not involve delays or additional resources being expended. However, the fact that no further submissions would be necessary to supplement the brief oral submissions already made, is reflective of the lack of merit in the grounds. The grounds, in reality, relate to factual matters, claiming either that matters were not taken into account by the Tribunal, or relying on matters in the material that were not before the Tribunal. The brief oral submission by the respondent was made because of the lateness of the grounds being filed. It did no more than point to where, in the Tribunal's reasons, the relevant topics were addressed. Conclusion 45 The appeal grounds identified are without merit. It would be futile to grant an extension of time. The application is dismissed with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham.