Dong v Minister for Immigration & Citizenship (No. 2) [2009] FCA 752

FEDERAL COURT OF AUSTRALIA

Dong v Minister for Immigration & Citizenship (No. 2) [2009] FCA 752

Migration Act 1958 (Cth) ss 477A, 499, 501 Schwart v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 169 referred to Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229 referred to TAN THANH DONG v MINISTER FOR IMMIGRATION & CITIZENSHIP

NSD 376 of 2009

EMMETT J

10 JUNE 2009

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 376 of 2009

BETWEEN: TAN THANH DONG

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

JUDGE: EMMETT J

DATE OF ORDER: 10 JUNE 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application of 1 May 2009 be dismissed. 2. The Applicant pay the Minister's costs of the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 376 of 2009

BETWEEN: TAN THANH DONG

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

JUDGE: EMMETT J

DATE: 10 JUNE 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This proceeding concerns a decision of the Administrative Appeals Tribunal (the Tribunal) made on 11 September 2008 confirming a decision of the respondent, the Minister for Immigration and Citizenship (the Minister), whereby the Minister cancelled the applicant's visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act). The applicant first arrived in Australia in 1985. The Tribunal found that, from 1987 onwards, the applicant had engaged in criminal activity that has seen him serve several periods of imprisonment. On 11 December 2002 he was sentenced in the District Court at Adelaide to eight years imprisonment following a plea of guilty to two counts of armed robbery. 2 On 6 June 2008, a delegate of the Minister found that the applicant does not pass the character test by virtue of s 501(6)(a) of the Act, in the light of s 501(7)(c). The delegate also concluded that the applicant had not satisfied the delegate that the applicant passes the character test. On 26 June 2008 the applicant applied to the Tribunal for review of the delegate's decision. In that application the applicant said that he wanted the Tribunal to review the decision of the Minister's delegate. The application attached a copy of the notice of visa cancellation and a copy of the documents given to him at the time of notification. That included the decision record of the Minister's delegate. 3 The present proceeding was commenced by application filed on 1 May 2009. By that application the applicant claimed that he is unlawfully held in detention and that his detention is not sanctioned by the Act. He claimed an order that he be released from detention. No grounds were stated in the application. However, in an affidavit filed with the application, the applicant stated, in effect, that the grounds of review were that the Tribunal failed to describe the applicant's visa correctly and therefore failed to determine correctly a jurisdictional fact precedent to the exercise of its power. The affidavit submitted that the incorrect description of a visa that is the subject of cancellation is an error of law and that the net result of that error is that the Tribunal made no decision to cancel the applicant's visa. 4 The Minister does not dispute the proposition of law asserted in the applicant's affidavit (see Schwart v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 169 at [16] and Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229). However, the Minister disputes the factual assertion that the Tribunal failed to describe the applicant's visa correctly. 5 The Tribunal began its reasons for its decision by stating that the applicant is a Vietnamese army deserter who was granted permanent residence in Australia as the holder of a refugee visa. That statement is correct on the basis of the material before the Tribunal. Nothing has been suggested on behalf of the applicant to the effect that the material before the Tribunal was inaccurate in that regard. 6 The material indicates that the applicant first entered Australia pursuant to a visa granted on 11 April 1985. The entry record describes that visa as a K4011 visa. The departmental minute stating the issues for consideration by the Minister's delegate stated that, on first entry, the applicant held a Refugee - Vietnamese (code K4011) visa and stated that the applicant was granted permanent residence on arrival in Australia as the holder of a refugee visa. Thus, on the material now before the Court, the statement by the Tribunal in its reasons was perfectly accurate. 7 It appears that, by his affidavit, the applicant invites the Court to draw an inference that the Tribunal believed that it was cancelling such a visa. In fact the visa held by the applicant at the time of the delegate's decision was a Class BB, Subclass 155 Return (Five Year Resident Return) visa. That visa was granted to the applicant on 22 March 2000. The applicant subsequently departed and returned to Australia on that visa on several occasions. 8 I do not consider that there is any basis for drawing an inference that the Tribunal was under any misapprehension as to the visa that was held by the applicant as at the date of cancellation. As I have said, the application to the Tribunal attached the documents given to the applicant at the time of notification of the decision; those documents included the delegate's statement of reasons, which make perfectly clear that the decision of 6 June 2008 was to cancel the applicant's Class BB Subclass 155 Return (Five Year Resident Return) visa. The Tribunal in its reasons referred to the fact that the Minister had cancelled the applicant's visa and ended by concluding that the decision under review should be affirmed. There is no reason for drawing an inference that the Tribunal was not aware of the decision that it affirmed. In the circumstances there is no substance in the ground raised in the applicant's affidavit. 9 When the matter first came before the Court, a direction was given for the Minister to inform the applicant of possible sources of pro bono advice. The applicant was given leave to file an amended application specifying grounds for review of the Tribunal's decision. The applicant acknowledged today that he has had the opportunity to obtain legal assistance but has been unsuccessful in doing so. 10 I have considered the reasons of the Tribunal of 11 September 2008. Those reasons indicate that the Tribunal took into account Ministerial Direction Number 21, as required by s 499 of the Act. The Tribunal's reasons set out the three primary considerations involved in the exercise of the decision to cancel a visa. Each of those considerations was addressed by the Tribunal. There was no error apparent in the Tribunal's reasons for making that decision. Accordingly, it is not surprising that the applicant did not take up the leave to file an amended application seeking to impugn the Tribunal's decision on any ground other than that specified in his affidavit. 11 Section 477A of the Act provides that an application to the Federal Court for a remedy to be granted in the exercise of the Court's original jurisdiction in relation to a decision under s 501 must be made within 35 days of the date of the decision. As I have said, the Tribunal's decision was made on 11 September 2008 but the present proceeding was not commenced until 1 May 2009. Under s 477A(2), the Federal Court may, by order, extend the 35 day period if an application for such an order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order. 12 No such application has been made to the Court. When invited to indicate orally why it was necessary in the interests of the administration of justice to extend the time the applicant simply asserted from the bar table that he spoke to the lawyer who represented him before the Tribunal, who did not tell him about the requirement to make an application for review within a fixed time. The applicant said that it was only after he was detained and he was given some assistance in the detention centre that he was able to take the step of commencing this proceeding. Even if any application had been made it appears that it would have been refused since the ground on which review is sought has no possible prospects of success for the reasons that I have just indicated. In any event, as I have said, no formal application has been made. 13 In all of the circumstances the proceeding should be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.