FEDERAL COURT OF AUSTRALIA Gilbert v Minister for Immigration and Citizenship [2011] FCA 1289 Citation: Gilbert v Minister for Immigration and Citizenship [2011] FCA 1289 Parties: ROY JOSEPH GILBERT v MINISTER FOR IMMIGRATION AND CITIZENSHIP File number: VID 971 of 2011 Judge: NORTH J Date of judgment: 11 November 2011 Date of hearing: 21 October 2011 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 27 Counsel for the Applicant: Mr G Hughan with Mr N Wood Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the Respondent: Mr R Knowles Solicitor for the Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 971 of 2011 BETWEEN: ROY JOSEPH GILBERT Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent JUDGE: NORTH J DATE OF ORDER: 11 NOVEMBER 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application filed on 7 September 2011 by the applicant for an extension of time to appeal from the orders of Marshall J made on 23 January 2008 is refused. 2. The applicant pay the respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 971 of 2011 BETWEEN: ROY JOSEPH GILBERT Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent JUDGE: NORTH J DATE: 11 NOVEMBER 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 Before the Court is an application under r 36.05 of the Federal Court Rules 2011 (Cth) by Roy Joseph Gilbert, the applicant, for an extension of time to appeal against orders made by Marshall J on 23 January 2008. This application was filed on 7 September 2011. The rules applicable in January 2008 required a notice of appeal to be filed within 21 days of judgment: O 52 r 15 Federal Court Rules. Consequently, the notice of appeal should have been filed by 13 February 2008, and is over three and a half years out of time. THE JUDGMENT OF MARSHALL J 2 The applicant applied to set aside the decision of the respondent, Minister for Immigration and Citizenship, made on 7 June 2007, to cancel his visa on character grounds. The applicant arrived in Australia with his family from the United Kingdom when he was eight years old and by 2007 had built up a substantial criminal record. 3 Marshall J explained the applicant's visa status as follows: 3. Mr Gilbert arrived in Australia in August 1981. On arrival in Australia, pursuant to the provisions of s 6 of the Migration Act 1958 (Cth) ("the Act"), as it then stood, Mr Gilbert's parents were granted entry permits to enter Australia. Under s 6(8), as their child, Mr Gilbert was deemed to be included in the entry permit of one of his parents. 4. The Migration Reform Act 1992 (Cth) and the Migration Reform (Transitional Provisions) Regulations 1994 ("the Transitional Regulations"), effected changes to the basis upon which non-citizens who held entry permits were entitled to remain in Australia. 5 Relevantly, reg 4 of the Transitional Regulations states that: If, immediately before 1 September 1994, a non-citizen was in Australia as the holder of a permanent entry permit that entry permit continues in effect … as a transitional (permanent) visa and permits the holder to remain indefinitely in Australia. (Emphasis added.) 6 The Migration Reform Act also created another form of visa known as an "absorbed person visa". Pursuant to s 34(2) of the Act, a person who was in Australia on 2 April 1984, and who before that day "ceased to be an immigrant" was "taken to have been granted an absorbed person visa on 1 September 1994" (emphasis added). 7 As at 1 September 1994, Mr Gilbert was: • the holder of a transitional (permanent) visa; and • the grantee of an absorbed person visa. 4 His Honour then examined the respondent's decision and determined that on its proper construction the decision cancelled the applicant's absorbed person visa. His Honour continued: 27. The significance of which visa was cancelled arises from the terms of s 501(2) and the use of the word "granted". It provides: The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. 28 Under s 501(6) a person does not pass the character test if he or she has a substantial criminal record. It is not in dispute that Mr Gilbert has a substantial criminal record. In Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 at 246 a Full Court, by way of obiter dicta, observed that the power conferred on the Minister to cancel a visa only applies to visas that have been granted to a person. Where a visa has been granted to a person, s 501F(3) operates so that any other visa held by that person is cancelled. So when an absorbed person visa is cancelled the transitional (permanent) visa held by that person is also cancelled. However, the Full Court considered in Moore that that process could not operate in reverse. That is because, so it said, the transitional (permanent) visa is a visa which is not granted or deemed to be granted to a person but is held by a person as a result of the operation of the Transitional Regulations. 29 Contrary views to those contained in Moore in the above respect, have been expressed in Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387 (per Finkelstein J) and Andary v Minister for Immigration and Multicultural Affairs [2001] FCA 1544 (per Dowsett J). 30 It is not necessary for me to express a preference in respect of the two competing approaches. That is because I consider that, in the current circumstances, the issue does not require determination. The better view is that the Minister's decision on 7 June 2007 was that Mr Gilbert's absorbed person visa was cancelled. That is especially clear from the "purpose" of the issues document which specifically seeks a decision on whether to cancel the absorbed person visa. It was a visa which "is taken to have been granted" to him in accordance with s 34(2) of the Act. 31 It is not disputed that if the Court forms the view that the Minister cancelled the absorbed person visa, as a consequence of that cancellation, s 501F(3) has the effect that the transitional (permanent) visa is also cancelled. THE DRAFT NOTICE OF APPEAL 5 The applicant filed a draft notice of appeal with one ground as follows: Marshall J erred in law in holding that s 501F(3) of the Migration Act 1958 had the effect of deeming the Respondent to have cancelled the Appellant's transitional (permanent) visa as a consequence of the Respondent's decision to cancel the Appellant's absorbed person's visa because, consistently with the reasons set out by the Full Court in Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56, the Respondent had not "granted" the Appellant's transitional (permanent) visa and therefore s 501F(3) did not operate to deem the Respondent to have cancelled that visa. Further, the purported decision of the Respondent to cancel the Appellant's transitional (permanent) visa was not cured by Schedule 4, item 7 of the Migration Legislation Amendment Act (No 1) 2008 because the purported enactment of the provision was an invalid exercise of the Commonwealth's legislative power. THE GROUNDS OF THE APPLICATION FOR AN EXTENSION OF TIME 6 The applicant accepted that the respondent had an interest in knowing that the claim against him had been finalised and that he was no longer at risk: Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 263 (per McInerney J). However, the applicant contended that where genuine issues ought to be litigated and if that can be done with fairness to all concerned it is appropriate to take a benign view to applications to extend time: Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30. 7 The discretionary factors urged in support of the extension of time are that the applicant has a reasonable prospect of success on the appeal, he has given an acceptable explanation for the delay, there is no prejudice to the respondent, and the consequences for the applicant of the cancelation decision remaining in place are serious. THE PROSPECTS OF SUCCESS ON APPEAL The Applicant's Submissions 8 The argument which the applicant seeks to make on the appeal centres on s 501F(3) of the Migration Act 1958 (Cth) (the Act) which provides: If: (a) the person holds another visa; and (b) that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection; the Minister is taken to have decided to cancel that other visa. 9 The applicant wishes to contend that this section did not have the effect of cancelling his transitional (permanent) visa. Section 501F(3) did not operate by its own force to cancel the transitional (permanent) visa. The section does not provide that if the Minister makes a decision under s 501 to cancel a visa that has been granted to a person then, if that person holds another visa, the other visa is cancelled. Rather, the section operates by deeming the Minister to have made a decision to cancel the other visa. By adopting this mechanism, the section, so it is argued, requires an independent authority in the Act as the basis for the deemed decision made by the Minister. In [6] of the applicant's written submissions in reply the argument is explained thus: By creating the legal fiction of the Minister having made a certain decision, s 501F(3) invites consideration of the Minister's powers to make that decision. Whether a decision of the Minister to cancel a visa is valid and effective depends upon whether the Act authorises the Minister to decide to cancel that visa. If the Minister does not have an available power to cancel a particular sort of visa, then the deemed decision of the Minister to cancel that visa under s 501F(3) simply has no effect. 10 Then it is said that there is no independent authority for the Minister to cancel a transitional (permanent) visa. On the contrary, the applicant argues, in Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56; [2008] FCAFC 132 (Sales) Gyles and Graham JJ in the Full Court determined that the power to cancel a visa in s 501 did not permit the cancellation of a transitional (permanent) visa. They said: 9 In our opinion, s 501(2) authorises cancellation of a visa that has been granted to a person by the Minister or the delegate of the Minister in the normal way pursuant to the Act or is deemed or taken by express statutory provision to be granted to a person. In particular, it would not authorise cancellation of a visa that is simply "held" by a person. 10 A transitional (permanent) visa may be regarded as held by a person but it cannot be regarded as granted in the normal way as the new regime, providing for the grant of visas, did not apply to such visas. Neither can it be said that such a visa is deemed or taken to be granted by express provision as is the case, for example, with the absorbed person visa. 11 In support of this argument the applicant relies on certain events which followed the judgment in Sales. First, on 1 August 2008, the Department of Immigration and Citizenship (the Department) wrote to the applicant as follows: The Department is obliged to treat the decision to cancel your transitional (permanent) visa … as being legally ineffective … This means that you are now regarded as the holder of a transitional (permanent) visa… Because the legal position regarding your visa status may change in the future, however, you are asked to keep the Department informed of your address. 12 Second, on 19 September 2008 the Migration Legislation (Amendment) Act (No 1) 2008 (Cth) (the Amending Act) commenced. It contained sch 4 item 7 (item 7) in the following terms: (1) To avoid doubt, any decision made or purported to have been made: (a) by the Minister under section 501, 501A, 501B, 501C or 501F of the Migration Act 1958 (as in force at any time on or after 1 September 1994 and before the day on which this item commences) before the day on which item 5 of this Schedule commences; or (b) by a delegate of the Minister under section 501 of the Migration Act 1958 (as in force at any time on or after 1 September 1994) and before the day on which this item commences) before the day on which item 5 of this Schedule commences; to cancel a transitional (permanent) visa or a transitional (temporary) visa is as valid, and is taken always to have been as valid, as it would have been if the transitional (permanent) visa or transitional (temporary) visa were a visa that had been granted. 13 Then on 29 September 2008, following the Amending Act, the Department wrote to the applicant as follows: The legal position regarding your visa has changed … On 19 September 2008, legislative amendments came into force, which have the effect of validating the decision to cancel your transitional (permanent) visa. As a consequence, the decision of the Minister to cancel your transitional (permanent) visa under section 501 of the Act on 7 June 2007 stands. 14 The applicant wishes to contend on appeal that the Department treated the validity of the cancelation of the transitional (permanent) visa as dependent on the application of item 7. 15 The applicant further wishes to argue on appeal that the legislature regarded the validating effect of item 7 as necessary for a deemed decision under s 501F(3) because it included reference to the section in the validating provision. 16 Finally, the applicant wishes to argue that s 501F(3) was not the source of the power to cancel a visa because it is not mentioned in s 118 which lists the sources of power available to the Minister to cancel a visa. 17 Then, the applicant wishes to argue that item 7 is invalid as an impermissible interference with the exercise of judicial power under Ch 3 of the Constitution because it purports to direct the courts to treat as valid administrative decisions that were invalid. 18 Such a challenge to the validity of item 7 was initially raised but not pursued in Bainbridge v Minister for Immigration and Citizenship (2010) 181 FCR 569; [2010] FCAFC 2 (Bainbridge). However, Moore and Perram JJ referred to and rejected the argument, albeit by way of obiter, on the ground that item 7 does not direct a court to treat as valid what is invalid, but rather it supplies legislative authority for decisions previously lacking that authority. Buchannan J disagreed. The majority view was accepted by Stone J in Martinez v Minister for Immigration and Citizenship & Anor (2010) 115 ALD 363; [2010] FCA 448 (Martinez) and by Perram J in Truong v Minister for Immigration and Citizenship & Anor [2010] FCA 1188 (Truong). The applicant wishes to argue on appeal that the view expressed by Buchannan J in Bainbridge is correct. Consideration 19 The applicant's proposed argument on appeal is built on the foundation that s 501F(3) depends on a separate source of power to cancel a visa outside the section itself. There is no substantial reason which supports this reading of s 501F(3). 20 The terms of the section and its context locate the authority to cancel a visa in the section itself. The section operates automatically to cancel the visa. There is no particular purpose served by the drafting technique of deeming the cancellation to have been effected by a decision of the Minister. 21 The reference in item 7 to decisions made under s 501F does not advance the applicant's argument. Item 7 is introduced by the words "To avoid doubt". Thus, the legislature did not assume that a decision under s 501F(3) required validation, but took the cautious approach of making provision in the event that any argument was raised. Neither does the absence of reference to s 501F(3) in s 118 demonstrate that s 501F(3) does not itself authorise the cancellation of a visa. Section 118 does not purport to be a complete statement of the source of authority to cancel visas. Finally, no reliance can be placed on the correspondence from the Department to the applicant. The view expressed in that correspondence that the cancellation of the transitional (permanent) visa was invalid following the judgment in Sales was mistaken. So much is now accepted by the respondent. 22 There is no reasonable prospect that the applicant would succeed on this fundamental contention. Even if he were to do so, he would also need to overcome the obiter view of the majority in Bainbridge supported in Martinez and Truong that item 7 is constitutionally valid. OTHER DISCRETIONARY GROUNDS 23 The respondent accepts that he would suffer no prejudice from the grant of an extension of time to the applicant apart from the fact that time has elapsed. It is also obvious that the consequences to the applicant of the cancellation remaining in place are substantial. He would be sent from Australia where his family lives and which has been his home for 30 years, and he would not be permitted to return to Australia. 24 The respondent argued that the applicant had not provided a substantial explanation for the delay in instituting an appeal. Part of the delay can be explained by the letter from the Department dated 1 August 2008 which notified the applicant that, as a result of the judgment in Sales, the cancellation of the transitional (permanent) visa was ineffective. But any comfort received from that letter was brought to an end on the receipt of the letter of 28 September 2008 in which the Department advised the applicant that, as a result of the Amending Act, the cancellation decision was operative. The applicant explained the situation thereafter in an affidavit sworn on 5 or 6 September 2011 as follows: 6. I wished to challenge that decision but believed that I could not do so and that the only avenue open to me was to apply for a special category visa. On 17 November 2010 my former solicitors wrote to me advising that they considered that my circumstances would not attract a favourable exercise of the Minister's discretion which was required for the grant of such a visa. …. 7. I then requested that my former solicitors assist me to challenge the effect of the Department's letter dated 29 September 2008. They were unable to assist me but referred my case back to the Public Interest Law Clearing House ('PILCH') to see if another firm of solicitors would be willing to assist me pro bono. 8. I understand that in February 2011 PILCH requested a merits assessment of my case from Mr Greg Hughan of Counsel and then, when he was unable to complete the advice by himself, a further request was made to Mr Nick Wood of Counsel in June 2011. 25 The affidavit does not indicate any steps which the applicant took between 28 September 2008 and 17 November 2010, when he received advice from his former solicitors. In general terms the applicant explains in [13]: The reason for the failure to file an appeal against the decision of Marshall J in the time fixed by the rules for filing an appeal was that I was not able to access the Court by myself, as I was in custody, and I could not afford a lawyer to assist me. I was therefore dependent on lawyers to act on my behalf pro bono and had to wait until such time as I received advice that there was merit in my appeal. 26 The facts that the applicant is in custody and was unable to afford a lawyer apply equally now as they did in September 2008. The affidavit does not explain why the applicant was able to overcome those obstacles now but not earlier. No doubt the fact that the applicant has been in custody and has not been able to afford a lawyer presented hardships to the applicant. But they do not alone satisfactorily explain the very long delay in taking steps to institute an appeal. CONCLUSION 27 The absence of a reasonable prospect that the applicant would succeed on an appeal, coupled with the absence of a persuasive reason for the delay outweigh the serious consequences to the applicant if the cancellation stands, and the absence of significant prejudice to the respondent. Consequently, the application for an extension of time to appeal is refused with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 11 November 2011